Registrar of the Supreme Court v Jenkins
[2019] NTSC 51
•21 June 2019
CITATION:Registrar of the Supreme Court v Jenkins [2019] NTSC 51
PARTIES:REGISTRAR OF THE SUPREME COURT
v
JENKINS, Trevor
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:69 of 2017 (21736976)
DELIVERED: 21 June 2019
HEARING DATES: 31 January and 16, 17 and 18 July 2018
JUDGMENT OF: Southwood J
CATCHWORDS:
CIVIL PROCEDURE – VEXATIOUS LITIGANT PROCEEDINGS – Respondent found to be a vexatious litigant under the Vexations Proceedings Act 2006 (NT) – Respondent found to have frequently instituted or conducted vexatious proceedings in the Supreme Court and the Local Court, – Proceedings instituted and pursued without reasonable ground, to harass or annoy, to cause delay or detriment, and for wrongful purpose – section 2 of the Vexations Proceedings Act 2006 (NT) – Orders made prohibiting the respondent from instituting proceedings in the Supreme Court of the Northern Territory and the Local Court of the Northern Territory without leave of the Supreme Court – section 4 of the Vexatious Proceedings Act 2006 (NT)
EVIDENCE – Whether the decision, or of a finding of fact, in other proceedings involving the respondent is inadmissible under section 91 of the Evidence (National Uniform Legislation) Act 2011 (NT) – Evidence of decisions or findings of fact in other proceedings involving the respondent constituted critical evidence in the vexatious litigant proceedings – Court may have regard to orders made by any court or tribunal – section 91 did not prevent tender of evidence – Evidence admitted
Care and Protection of Children Act 2007 (NT) s 187, s 188, s 189, s 194, s 194(7), s 196
Court Security Act 1998 (NT) s 12(2), s 15
Criminal Code 1983 (NT) s 188(1), s 188A(1), s 188A(2)(b)
Evidence (National Uniform Legislation) Act 2011 (NT) s 91, s 138
Federal Court of Australia Act 1976 (Cth) s 37AO(1)
Justices Act 1996 (NT) s 63A
Local Court (Criminal Procedure) Act1928 (NT) s 62(b), s 62A(b), s 63A, s 191
National Crime Authority Act 1984 (Cth) s 12(1), s 13, s 14
Police Administration Act 1978 (NT) s 158
Summary Offences Act 1923 (NT) s 47(a), s 47(c), s 47(e), s 47A(2)
Supreme Court Rules 1987 (NT), r 23.01, r 23.02
Trespass Act 1987 (NT) s 5, s 7(1)
Vexatious Proceedings Act 2006 (NT), s 2, s 2(d), s 3, s 3(b), s 3(c), s 4, s 4(1)(a), s 4(1)(c), s 4(1)(d), s 6, s 7(2), s 7(3), s 7(4), s 7(1)(a), s 7(1)(b), s 7(6)(c), s 10(1)
Vexatious Proceedings Act 2005 (Qld) s 6(1)
Vexatious Proceedings Act 2008 (NSW) s 6(a), s 6(c), s 8(1)
Vexatious Proceedings Act 2011 (Tas) s 6(1)
Vexatious Proceedings Act 2014 (Vic)
Vexatious Proceedings Registration Act 2002 (WA)Attorney-General (Vic) v Bahonko [2011] VSC 352; Attorney General (NSW) v Chan [2011] NSWSC 1315; Attorney General v Gargan [2010] NSWSC 1192; Attorney-General for theState of Victoria v Andrew Garrett (2017) 51 VR 777; Attorney-General (Vic) v Horvath, Senior [2001] VSC 269; Attorney-General (Vic) v Knight [2014] VSC 549; Attorney-General (NSW) v Martin [2015] NSWSC 1372; Attorney-General (NSW) v Mohareb [2016] NSWSC 1823; Attorney-General (Vic) v Pham [2014] VSC 311; Attorney-General (Vic) v Shaw [2007] VSC 148; Attorney General (NSW) v Wilson [2010] NSWSC 1008; Conomy v Maden [2019] HCA Trans 49 (20 March 2019); Fuller v Toms [2013] FCA 1422; Hanks v the Queen [2011] VSCA 7; HWY Rent Pty Ltd v HWY Rentals (in liq) (No. 2) [2014] FCA 449; Jones v Cusack (1992) 109 ALR 313; Mahmoud v Attorney-General of New South Wales [2017] NSWCA 12; Mathews v State of Queensland [2015] FCA 1488; Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398; Slaveski v Attorney-General (Vic) [2013] VSCA 165; Viavattene v Attorney-General (NSW) [2015] NSWCA 44 – referred to
Jarrett v Seymour & Ors (1993) 46 FCR 521, (1993) 46 FCR 557; Elliott v Seymour & Ors [1993] HCA 70; 68 ALJR 173 – distinguished
Paul Mullen and Grant Lester, ‘Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour’ (2006) 24 Behavioural Sciences and the Law 333
REPRESENTATION:
Counsel:
Applicant:R Brebner with L Peattie
Respondent:Self-represented
Solicitors:
Applicant:The Solicitor for the Northern Territory
Respondent:Self-represented
Judgment category classification: B
Judgment ID Number: Sou1905
Number of pages: 148
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINRegistrar of the Supreme Court v Jenkins [2019] NTSC 51
No. 69 of 2017 (21736976)
BETWEEN:
REGISTRAR OF THE SUPREME COURT
Applicant
AND:
TREVOR JENKINS
Respondent
CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 21 June 2019)
Introduction
This proceeding was commenced by Originating Motion filed on 3 August 2017. The Originating Motion was amended on 31 January 2018 and by an amended Originating Motion filed on 6 February 2018 the applicant[1] applied for orders against the respondent under the Vexatious Proceedings Act 2006 (NT) (‘the Act’).
On 18 July 2018, having found the respondent had frequently instituted and conducted vexatious proceedings in the Northern Territory (‘the Territory’), I made orders prohibiting the respondent from instituting proceedings in the Supreme Court and the Local Court without leave, with the exception that the respondent was not prohibited from applying for bail or conducting a defence of any criminal charge that may be brought against him. It was necessary to amend those orders to specify that leave was to be obtained from the Supreme Court, and on 19 July 2018, I amended the orders. I also referred the transcript of the last three days of the hearing on 16, 17 and 18 July 2018 to the applicant for the purpose of considering whether contempt proceedings should be commenced against the respondent for his behaviour during the hearing. That reference was subsequently withdrawn.
On 18 July 2018 I made some short remarks and stated that I would publish detailed written reason later. Following are my reasons.
The Vexatious Proceedings Act 2006 (NT)
The Act is based on a model bill developed through the forum of the Standing Committee of Attorneys-General to “deter and curtail the activities of vexatious litigants”.[2] The model bill has been adopted (with some variation) in several other jurisdictions in Australia.[3]
The Act does not affect any inherent jurisdiction or other powers of the Court, including the powers under the Supreme Court Rules 1987 (NT),[4] to restrict vexatious proceedings.[5] Under the Act the Supreme Court has power to: (i) make an order staying all or part of any proceedings in the Territory already instituted by the person; (ii) make orders prohibiting a person from instituting proceedings in any court in the Territory without the leave of this Court and; (iii) make any other orders it considers appropriate.[6] Any proceeding instituted in breach of such an order is permanently stayed.[7]
Orders prohibiting a person from instituting proceedings in the courts are not to be made without good reason.[8] To deprive a litigant of access to the courts is a serious measure.[9] In exercising the discretion to make orders under the Act it must be borne in mind that the effect of such orders is to limit a person’s right of recourse to the courts in the Territory. The orders are protective, not punitive. The purpose of the Act is not to punish a litigant for past litigious misdeeds, but to shield both the public and the courts themselves.[10]
Before exercising the discretion to make a vexatious proceedings order, the Court must be satisfied on the balance of probabilities that a person has: (i) instituted or conducted vexatious proceedings in Australia, and (ii) has done so frequently.[11]
A vexatious proceeding includes any proceeding which is:
(a) An abuse of the process of a court or tribunal; or
(b) Instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose; or
(c) Instituted or pursued without reasonable ground; or
(d) Is conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.[12]
The factors included in (a) to (d) above overlap, and the factors in sub-paragraphs (b) to (d) could properly be regarded as particular aspects of an abuse of process.[13] However, sub-paragraph (b) connotes a subjective intention on the part of a respondent, and sub-paragraph (d), which does not, is concerned with the consequences of a respondent’s conduct.[14] Further, a proceeding may fall into either sub-paragraph (b) or (d) regardless of its prospects of success.
The Act defines ‘proceedings’ broadly and non-exhaustively.[15] The definition includes interlocutory proceedings.[16]
The act of ‘instituting proceedings’ is also defined broadly and non-exhaustively.[17] For criminal proceedings, a proceeding will be instituted upon the making of a complaint, the laying of an information for an indictable offence, or the obtaining of a warrant for the arrest of an alleged offender.[18] For civil proceedings, a proceeding will be instituted by ‘the taking of a step or the making of an application that may be necessary before the proceeding can be started against a party’.[19] In both civil and criminal proceedings, a proceeding will be instituted by the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceeding or a decision made in the course of the proceeding.[20]
Counsel for the applicant submitted that equivalent provisions to s 4(1)(a) of the Act in other jurisdictions have been interpreted broadly. In HWY Rent Pty Ltd v HWY Rentals (in liq) (No. 2),[21] Perry J held that a party had instituted proceedings by requesting a bankruptcy notice from an Official Receiver, even though the request was not an application to the Federal Court but a prerequisite to the creditor commencing proceedings in court by way of creditor’s petition.[22] It was submitted that her Honour’s conclusion was relevant to this proceeding because a number of the vexatious proceedings instituted by the respondent concern material left by the respondent at the registries of the Supreme Court and Local Court which was rejected or was yet to be processed by the courts. I accept this submission.
In the present case, the respondent has from time to time tried to institute proceedings by filing incoherent, illegible and unhygienic material at the Supreme Court and Local Court registries. He has also purported to institute proceedings by emailing various forms to court officers. This has imposed a substantial burden on Registry staff. In my opinion, such steps are sufficient to constitute instituting a proceeding for the purposes of the Act.
Vexatious proceedings include civil proceedings that are conducted vexatiously by a respondent or a defendant.[23] It is doubtful that vexatious proceedings include criminal proceedings that are conducted vexatiously by an accused person.[24] It is unnecessary to resolve this issue here.
In considering whether a person has frequently instituted or conducted vexatious proceedings, the court may have regard to: (i) proceedings commenced or conducted before any court or tribunal in Australia; (ii) the orders of any court or tribunal; and (iii) any proceedings instituted or orders made before the commencement of the Act.[25] I accept counsel for the applicant’s submissions that whether a person has “frequently” instituted or conducted vexatious proceedings must be answered by reference to the circumstances of the particular case.[26] “Frequently” does not mean “habitually and persistently”.[27] A court may find that a person has instituted or conducted vexatious proceedings frequently even though the number of proceedings is quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person.[28]
This proceeding involves, among other matters, several proceedings in which the respondent attempted to re-litigate cases which had been determined against him.
The applicant’s case
The applicant’s case was as follows.
The respondent has frequently instituted vexatious proceedings in the Territory and it is in the interests of justice that [orders be made prohibiting him from commencing further proceedings in the Supreme Court and Local Court without leave of the Supreme Court]. The respondent has recently instituted or conducted [72] vexatious proceedings in the Supreme Court and Local Court. The courts have made positive findings that the respondent has instituted proceedings without merit and has conducted proceedings oppressively and for an improper purpose. The respondent has shown a sustained lack of regard for the authority of the courts and their processes and has undermined the administration of justice. In spite of judicial efforts to assist him, the respondent shows no insight into his past conduct nor any willingness to change his behaviour. If an order is not made, it may reasonably be concluded that the respondent’s vexatious conduct will continue into the future and the respondent is likely to impose a very significant and unjustified burden on other litigants and the courts.
The applicant’s evidence
The applicant relied on the following affidavits: (i) the affidavits of Ms Tracey Jane Holmes made on 3 August 2017, 22 September 2017 and 29 January 2018; (ii) the affidavit of Mr Lachlan Sebastian Peattie made on 22 September 2017, and (iii) the affidavit of Mr Demetrios Laouris made on 25 September 2017. The affidavits were read and the respondent cross-examined Ms Holmes until he was stopped for continually asking questions I had disallowed. His application to cross-examine Mr Peattie was refused. There was no legitimate basis for the respondent to cross-examine Mr Peattie. Mr Peattie’s affidavit was read solely for the purpose of tendering the transcripts of various proceedings, and the respondent was unable to suggest any relevant topics for cross-examination.
At all material times Ms Holmes was either the Acting Supreme Court Registry Manager or the Registry Manager. She had general administrative responsibility for the Supreme Court Registry in Darwin, including the care and control of all documents filed with the Registry. As Acting Registry Manager and Registry Manager, Ms Holmes had lawful access to the Northern Territory government’s Integrated Justice Information System (‘IJIS’) which holds records of all proceedings commenced in Northern Territory courts. Her affidavits address the respondent’s activities in the Supreme Court and Court of Appeal since 1 January 2015.
In her affidavit made on 3 August 2017 Ms Holmes deposed that she:
(a) searched IJIS and identified all proceedings the respondent had commenced in the Supreme Court since 1 January 2015;
(b) found that the respondent had commenced 11 proceedings in the Supreme Court, 10 of which had been finalised and one was still on foot; and
(c) inspected the Supreme Court files identified on IJIS. Ms Holmes provided a brief description of each of the proceedings in the files and stated the outcome of each completed proceeding.
Ms Holmes annexed the following documents to the affidavit she made on 3 August 2017:
(a)the Notices of Appeal in files numbered: 21425645 – JA 10 of 2015, 21425645 – AP 5 of 2016, 21457818 – LCA 3 of 2016, 21425645 AP 7 of 2016, 21425645 – AP 7 of 2016, 21425645 – AP 8 of 2016, 21615229 – LCA 18 of 2016, 21618385 – LCA 27 of 2016, 21556341 – LCA 28 of 2016, 21653047 – SC 119 of 2016, 21653047 – AP 13 of 2016, and 21617016 – LCA 20 of 2017;
(b)the reasons for decision in files numbered: 21425645 – JA 10 of 2015, 21425645 – AP 5 of 2016, 21457818 – LCA 3 of 2016, 21425645 – AP 7 of 2016, 21425645 – AP 7 of 2016, 21425645 – AP 8 of 2016, 21615229 – LCA 18 of 2016, 21556341 – LCA 28 of 2016, and 21653047 – AP 13 of 2016;
(c)the order dismissing the appeal in file no. 21618385 – LCA 27 of 2016.
(d)the Originating Motion and report of listing which notes that the proceeding in file no. 21653047 – SC 119 of 2016 was dismissed.
In her affidavit made on 22 September 2017 Ms Holmes deposed that:
(a)she kept a record of the interactions between the respondent and the members of staff in the Supreme Court Registry;
(b)there were extensive interactions between the respondent and Registry staff;
(c)the respondent frequently left extensive bundles of soiled, untidy and disorganised documents without a correct court header at the Registry;
(d)the contents of the documents the respondent left at the Registry were frequently illegible and incoherent;
(e)it was taking staff in the Registry an inordinate length of time to try and process the respondent’s documents;
(f)the respondent left various documents at the Registry on 5, 6 and 21 September 2017;
(g)the documents left by the respondent at the Registry on 5 and 6 September were returned to him and not accepted by staff in the Registry because the documents did not comply with the Supreme Court Rules, the handwriting on the documents was in large part indecipherable, illegible and incoherent, the respondent’s ‘affidavits’ were unsworn, the respondent’s applications for leave to appeal and Notices of Appeal did not disclose any grounds of appeal, and some of the documents consisted of soiled papers.
Ms Holmes annexed the following documents to her affidavit dated 22 September 2017: (i) letters to the respondent from the member of staff in the Registry who returned the respondent’s documents; (ii) copies of various documents left at the Registry by the respondent; (iii) the reasons for decision in Jenkins v Whittington [2017] NTSC 65; (iv) the reasons for decision in Jenkins v Todd [2016] NTSC 15; (v) the reasons for decision in Jenkins v Todd [2016] NTSC 21; (vi) the sentencing remarks of her Honour Kelly J in Trevor Jenkins and Walter Todd dated 10 May 2016; (vii) and the reasons for decision in Jenkins v Todd [2016] NTSC 26.
In her affidavit made on 29 January 2018 Ms Holmes deposed that:
(a)On 27 March 2017 the Chief Justice of the Supreme Court made an order and directions concerning the respondent’s lodgement and collection of documents at the civil and criminal registries and access to the Supreme Court Library. The order stated that, “Mr Jenkins is refused access to the Supreme Court Library.”
(b)On 11 January 2018 the respondent purported to serve summonses and informations for an indictable offence signed by the respondent charging: (i) the applicant with contempt of court; (ii) the applicant with attempting to pervert the course of justice; (iii) the Sheriff of the Supreme Court, Mr Daniel McGregor, with attempting to pervert the course of justice and; (iv) the Probate and Civil Appeals Officer, Mr Nelson Cu, with contempt of court. The documents were handed to security personnel at the Supreme Court.
(c)The informations for indictable offences commenced private prosecutions in the Local Court against the applicant, Mr McGregor, and Mr Cu. They were stamped with the stamp of the Local Court.
(d)On 16 January 2018 Ms Holmes, the applicant, Mr McGregor, and Mr Cu appeared in the Local Court. Mr Kevin Rabbe and Mr Mike Cox from the Darwin Correctional Centre were also present in court, having been served with similar documents by the respondent.
(e)The respondent failed to appear in the Local Court on 16 January 2018 and the presiding judge dismissed all matters in default of his appearance.
(f)The respondent had one matter in the Supreme Court, Trevor Jenkins v Justin Firth LCA 57/17 (21556341) which had not been completed.
(g)On 21 August 2017 his Honour Grant CJ handed down his reasons for decision in Jenkins v Whittington [2017] NTSC 65 No. LCA 20/17 (21617016).
(h)Since 21 August 2017 the respondent had attempted to file documents on numerous occasions seeking to refer the Chief Justice’s decision in Jenkins v Whittington to the Court of Appeal. All of the documents were rejected because they did not comply with the Supreme Court Rules.
Ms Holmes annexed the following documents to her affidavit dated 29 January 2018: (i) the order and direction of the Chief Justice dated 27 March 2017; (ii) the information for an indictable offence charging the applicant with contempt; (ii) the information for an indictable offence charging the applicant with attempt to pervert the course of justice; (iii) the summons to a person charged with an indictable offence addressed to the applicant; (iv) the information for an indictable offence charging Mr McGregor with attempt to pervert the course of justice; (v) the summons to a person charged with an indictable offence addressed to Mr McGregor; (vi) the information for an indictable offence charging Mr Cu with contempt; and (vii) the summons to a person charged with an indictable offence addressed to Mr Cu.
At all material times Mr Lachlan Sebastian Peattie was a solicitor. He appeared in this proceeding as Ms Brebner’s co-counsel. He obtained and annexed to his affidavit the transcripts of hearings in the following proceedings: the justices appeal in the Supreme Court before his Honour Barr J in Jenkins v Todd [2016] NTSC 4JA 10 of 2015 (21425645); the interlocutory proceeding brought by the respondent in the Supreme Court before her Honour Kelly J in Jenkins v Todd [2016] NTSC 15; the contempt proceeding in the Supreme Court before her Honour Kelly J in Jenkins v Todd [2016] NTSC 21 JA 10 of 2015 (21425645); the breach proceedings against the respondent in the Supreme Court before her Honour Kelly J in Jenkins v Todd [2017] NTSC 21 JA 10 of 2015 (21425645); the Local Court proceeding Trevor Jenkins v The Screening Authority LCA 21457818; the Local Court proceeding Police v Trevor Jenkins LCA 21556341; the Local Court proceeding Police v Trevor Jenkins LCA 21617016; the contempt proceeding in the Local Court in Police v Trevor Jenkins LCA 21617016; the Local Court proceeding Trevor Jenkins v Daniel McGregor LCA 21618385; and the Supreme Court proceeding Trevor Jenkins v Daniel McGregor LCA 27 of 2016 (21618385). The transcripts include transcripts of interlocutory proceedings against the respondent instituted orally and contain evidence of the general nature of his conduct.
At all material times Mr Demetrios Laouris was the Director of the Local Court North and Principal Registrar of the Local Court. He had the general administrative responsibility for managing the Local Court Registry at Darwin including the care and control of all documents filed in the Registry. He was authorised to access and inspect all documents held on Local Court files. Mr Laouris’s affidavit contains evidence of the respondent’s activities in the Court of Summary Jurisdiction and Local Court since 1 January 2014.
In his affidavit Mr Laouris deposed the following and annexed the documents referred to in his depositions:
(a)He caused Registry staff to undertake a search of IJIS to identify all Local Court proceedings involving the respondent which commenced after 1 January 2014.
(b)The search found that since 1 January 2014 the respondent had been a party to 19 proceedings in the Local Court. 16 of those proceedings were criminal proceedings and three were civil proceedings.
(c)Two criminal proceedings that commenced before 29 September 2017 were instituted by the respondent.
(d)The respondent had instituted the three civil proceedings.
(e)In the matter of Jenkins v The Screening Authority LCA 21451437: (i) on 5 November 2014 the respondent filed a Notice of Appeal against a decision of the Screening Authority not to issue him with an ‘ochre card’[29]; (ii) the respondent failed to appear at a pre-hearing conference on 24 November 2014 and the Notice of Appeal was dismissed; (iii) on 22 June 2015 the respondent refiled the Notice of Appeal filed in proceeding LCA 21451437, and that appeal was re-constituted LCA 21457818; (iv) on 11 September 2015 a pre-hearing conference was held by the Registrar of the Local Court and the matter was adjourned to a directions hearing on 21 September 2015; (v) the respondent failed to appear on 21 September 2015 and the Notice of Appeal filed on 22 June 2015 was dismissed; (vi) on 28 September 2015 the respondent filed an application seeking to have the order setting aside the Notice of Appeal dismissed and a rehearing of the directions hearing; (vii) on 26 October 2015 another magistrate granted the respondent’s application; (viii) on 6 January 2016 the respondent issued nine summonses to give evidence and eight summonses for the production of documents in the proceeding; (ix) on 25 January 2016 Lowndes CM set aside all but one of the summonses; (x) the proceeding was again mentioned on 12 February 2016, 4 March 2016 and 11 March 2016; (xi) on 17 March 2016 the proceedings was further adjourned to 18 April 2016 for hearing; (xii) on 18 April 2016 the respondent did not appear at the hearing and the Notice of Appeal filed on 22 June 2015 was dismissed; (xiii) on 22 April 2016 the respondent filed an application to set aside the decision of Lowndes CM made on 18 April 2016. The application was not served on the Screening Authority until 9 September 2016; (xiv) on 19 September 2016 Judge Armitage set aside the decision of Lowndes CM and listed the matter for hearing on 12 December 2016; (xv) on 1 December 2016 the respondent filed an application to vacate the hearing listed for 12 December 2016. The application was heard before Judge Woodcock and was refused; (xvi) on 8 December 2016 the respondent lodged a Notice of Appeal against Judge Woodcock’s decision; (xvii) on 9 December 2016 the respondent filed a further application to vacate the hearing date of 12 December 2016; (xviii) on 12 December 2016 the matter was adjourned to 19 December 2016 and on 19 December 2016 the matter was adjourned to 23 January 2017 because the respondent had been remanded in custody by her Honour Kelly J; (ixx) on 15 and 20 March 2017 the respondent filed two applications respectively seeking orders that the proceedings be relisted before Judge Neill and that he recuse himself from hearing the matter; (xx) on 30 March 2017 Judge Neill struck out the Notice of Appeal dated 22 June 2015 and shortly after leaving Court the respondent lodged a Notice of Discontinuance or Withdrawal; (xxi) on 3 April 2017 the respondent filed an application seeking to set aside the order of Judge Neill made on 30 March 2017. The application was heard by Judge Woodcock on 10 April 2017, the respondent did not appear, and the application was dismissed; (xxii) on 10 April 2017 the respondent filed an application to set aside the order of Judge Woodcock made on 10 April 2017. The application was dismissed by Judge Neill in chambers on 29 May 2017; (xxiii) in total, LCA proceeding 21457818 was listed and heard 27 times in the Local Court.
(f)Having been unsuccessful in the proceeding against the Screening Authority, the respondent commenced similar proceedings in the Local Court against the Commissioner of Police. However, the documents that he filed were not processed by the Local Court Registry.
(g)The respondent engaged in similar conduct in: Darwin City Council v Jenkins LCA 21615529; the criminal proceeding of Jenkins v McGregor LCA 21618385; and the criminal proceeding of Jenkins v O’Neill LCA 21604674.
(h)In the criminal proceeding of Police v Trevor Jenkins LCA 21617016, the respondent was convicted of a number of criminal offences and during the course of the proceeding he was found guilty of contempt. Following his convictions, the respondent filed three Notices of Appeal and three applications to set aside his convictions.
(i)In the criminal proceeding of Police v Jenkins LCA 21556341, the respondent was found not guilty of one count and convicted of the remaining counts. Once again he filed a number of Notices of Appeal and applications to set aside conviction or order. All of the proceedings commenced by the respondent were unsuccessful.
(j)On 3 August 2017 the Local Court Registry received a number of criminal originating processes from the respondent.
(k)On 5 September 2017 the Local Court Registry received a number of informations for indictable offences charging the Probate and Appeals Clerk of the Supreme Court, Mr Nelson Cu, the applicant, Mr Daniel McGregor, and Mr Ian Rowbottam with various criminal offences.
(l)On 15 September 2017 the Local Court Registry received a criminal complaint and a number of informations for an indictable offence charging Mr Kevin Rabbe, Mr Mick Caldwell, Mr Alex “Skipprious” (sic), Mr Mark Daffey, Mr Robert Daffey and Deputy Superintendent Mike Cox with various criminal offences.
Section 91 of the Evidence (National Uniform Legislation) Act 2011 (NT)
As is apparent from the applicant’s case, evidence of the decisions or findings of fact in other proceedings involving a respondent may constitute critical evidence in proceedings under vexatious proceedings legislation.[30] The admissibility of such evidence is arguably subject to s 91 of the Evidence (National Uniform Legislation) Act 2011 (NT) which provides:
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
The respondent did not raise s 91 of the Evidence (National Uniform Legislation) Act 2011 (NT). However, as the respondent was unrepresented, I asked counsel for the applicant to make submissions about this issue. For the following reasons, I ruled that all of the reasons for judgment and orders annexed to the affidavits of Ms Holmes and Mr Laouris, and the transcripts of proceedings annexed to the affidavit of Mr Peattie, were admissible.
Equivalent provisions to s 91 of the Evidence (National Uniform Legislation) Act 2011 (NT) have been considered and applied in vexatious litigant proceedings in other jurisdictions. In Attorney-General (NSW) v Martin[31] her Honour Simpson J observed that:
Section 91 constitutes a considerable fetter on proof of the matters necessary to be proved in order to establish that proceedings are vexatious. Given that the Vexatious Proceedings Act [NSW] has three important objectives – (i) to protect potential defendants against unwarranted litigation; (ii) to protect courts against abuse of their processes; and (iii) to ensure that valuable court time is available for litigation and resolution of genuine disputes – applications thereunder should not be impeded by fetters on the admissible evidence. In its application to the Vexatious Proceedings Act, s 91 is antithetical to those objects.[32]
Her Honour Simpson J observed that the admissibility of records of judgment depended upon “an analysis of the facts that were in issue in the proceedings giving rise to each judgment and the findings of fact made in the judgments.”[33] Her Honour held that where a party seeks to use records of judgment to establish the nature of the proceeding and the nature of a proceeding was a fact in issue, the records are inadmissible. Accordingly, her Honour concluded that certain judgments relied on by the applicant in that case were inadmissible by reason of s 91. For example, in reference to a judgment of the New South Wales Land and Environment Court where proceedings had been struck out as an abuse of process, her Honour stated:
The Attorney General relied upon this judgment to establish that the principal proceedings were vexatious within the definition of “vexatious proceedings” in ss 6(a) and 6(c) of the Vexatious Proceedings Act [NSW] — that is, that the proceedings were an abuse of process of the Land and Environment Court, and that they were instituted or pursued without reasonable ground.
That is, in substance, precisely what Commissioner Dixon found. In other words, the Attorney General seeks to rely upon the factual findings of Commissioner Dixon to establish the existence of the relevant facts for the purposes of s 6. That the proceeding before Commissioner Dixon disclosed “no reasonable cause of action” is a finding of fact that the proceedings were instituted “without reasonable ground”. That is the very fact that the Attorney General seeks to prove in order to establish that the proceedings were vexatious within the meaning of s 6(c). Commissioner Dixon also found that the proceedings were an abuse of process. That is the very fact that the Attorney General seeks to prove in order to establish that the proceedings were vexatious within the meaning of s 6(a).
Accordingly, s 91 of the Evidence Act [NSW] precludes reliance upon Commissioner Dixon’s findings of fact for the purpose of proving that the proceedings were vexatious.[34]
However, in Attorney-General (NSW) v Mohareb[35] Schmidt J expressly disagreed with such an approach. Her Honour stated:
I find myself in disagreement with Simpson J’s approach to the construction of s 91.
The term “finding of fact” is not defined in the Evidence Act [NSW]. While issues which arise for resolution in particular proceedings will very frequently depend on findings of fact made on the evidence, not every finding made, or conclusion reached on matters in issue involves a finding of fact. In some cases they involve the resolution of questions of law and often, the resolution of questions of mixed fact and law.
[…]
As found in Teoh, decisions of that kind are admissible in proceedings brought under the Vexatious Proceedings Act [NSW]. Views expressed in such decisions are not binding, but they are relevant to what arises to be decided in proceedings under that Act, not because they are tendered in order to prove the existence of a fact that was in issue in the earlier proceedings, but rather, to establish the fact that the earlier proceedings existed, that the defendant was a party to them, how they were resolved and in some cases, the views the presiding judge expressed on matters which also fall within the definition of “vexatious proceedings”. That term is defined in s 6 of the Vexatious Proceedings Act to include:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued without reasonable ground; and
(d)proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
All of those matters also involve questions of law. They must certainly be decided on facts found, but conclusions reached in the earlier proceedings on those questions are not themselves “findings of fact”. Nowadays, given obligations such as those imposed by s 56 of the Civil Procedure Act 2005 (NSW), conclusions that particular proceedings, or an aspect of them, involve an abuse of process; were instituted or conducted in a way so as to harass or annoy, to cause delay or detriment, or for another wrongful purpose; or were instituted or pursued without reasonable ground, are not infrequently reached in judgments given both at interlocutory and final stages of the proceedings.
That does not render such judgments inadmissible under s 91 of the Evidence Act, in later proceedings, including those brought under the Vexatious Proceedings Act, unless the judgment is sought to be tendered to prove the existence of a fact that was in issue in the earlier proceeding. If tendered to establish the existence of the proceedings, who the parties were and how a question of law, or a question of mixed fact and law, was resolved in those proceedings, s 91 does not render the judgment inadmissible.[36]
In Attorney-General for theState of Victoria v Andrew Garrett[37] his Honour McDonald J considered the conflicting approaches. His Honour provided the following reasons:[38]
I have concluded that the judgments of Ormiston JA in Kay and Ashley J in Attorney-General (Vic) v Horvath, Senior, although preceding the enactment of s 91 of the Evidence Act, correctly state the test for the admissibility of evidence to be relied upon in an application for a general litigation restraint order. A judge hearing a general litigation restraint order application must make an independent determination of whether an individual has commenced and/or conducted vexatious proceedings. In doing so, a judge is entitled to have regard to court orders and reasons for judgment and proceedings which are relied upon by the applicant for the order. Insofar as the judgments and court orders record findings as to the nature of the proceedings (such as whether the proceedings should be dismissed as an abuse of process), this is a finding of mixed fact and law. Section 91 does not operate to preclude reasons for judgment and orders in respect of such proceedings from being admitted into evidence in support of an application for a general litigation restraint order [which is a similar order to the order being sought by the applicant in this case].
Section 91(1) of the Evidence Act codifies a long-standing common law principle that findings of fact in one judgment are inadmissible in a subsequent proceeding against a non-party to the prior proceeding, except, where relevant, to ascertain the parties to those proceedings and the issues raised in the litigation as disclosed in the reasons for judgment. The judgments in Kay and Horvath preceded the enactment of s 91 of the Evidence Act. However, the admissibility of the judgments and orders relied upon for those proceedings was subject to a common law principle relevantly indistinguishable from the terms of s 91(1). Further, there is a substantial body of authority in respect of s 21(2) of the Supreme Court Act 1986 which has applied the reasoning of Ashley J in Horvath subsequent to the enactment of s 91 in the Evidence Act 2008. These judgments include the judgment of the Court of Appeal in Slaveski v Attorney-General (Vic).
Further, when the Vexatious Proceedings Act 2014 was enacted, s 21(2) of the Supreme Court Act 1986 was of long standing. There is nothing in the terms of the Vexatious Proceedings Act, nor the parliamentary materials accompanying its enactment, which supports the conclusion that Parliament intended that the threshold for declaring an individual a vexatious litigant would be more onerous under the Vexatious Proceedings Act than under s 21 of the Supreme Court Act 1986. To the contrary, s 29(2) broadens the range of matters to which the court may have regard for the purpose of being satisfied whether a general litigation restraint order should be made. The court may take into account any matter it considers relevant. The legislative intention to broaden the material which may be taken into account by the court is reflected in the second reading speech […]
My conclusion that:
·s 91(1) codified a longstanding common law principle;
·There was a long history of the Supreme Court having regard to judgments and orders when determining vexatious litigation applications, including the applications heard subsequent to the enactment of s 91(1); and
·The Vexatious Proceedings Act and the materials accompanying its passage through Parliament manifest a clear, legislative intention to expand the range of matters which can be taken into account by a court informing the requisite satisfaction that an individual has commenced and/or conducted vexatious proceedings
supports a finding that the court is not precluded by s 91(1) of the Evidence Act from admitting into evidence, judgments and orders relevant to the question of whether a person has persistently and without reasonable grounds conducted vexatious proceedings.
I agree with his Honour McDonald J’s reasons for decision. This approach is further supported in the Territory by the existence of s 7(2)(b) of the Act. That subsection expressly provides that the Court may have regard to orders made by any court or tribunal.
Use of the information obtained from IJIS
The respondent objected to the tender of all information that had been obtained by Ms Holmes and Mr Laouris from IJIS. In his closing address the respondent made the following submission:
[…] what I wanted to bring up was just how the submissions and the affidavits were gained and worked on. I say that there was illegal access to the IJIS… And so if a person is going to be accessing IJIS and searching what we’re opening up is a can of worms of data theft, of data privacy where people can search through - - -
[I then asked the respondent to go to the law on this issue and he stated]
It’s just it’s a basic thing. I don’t have that kind of knowledge. It’s a basic thing whenever I’ve gone into the anything the only person (sic) that can access IJIS are the police. And even when you go down to the courts and you ask for IJIS things on your own IJIS you can’t IJIS things.
I went yesterday to the police about IJIS. Anybody has to give a reason for that. It’s regularly in and out of the courts about that kind of data theft and those sort of things. And what we’re opening up there is like a police state where police can be searching like East Germany during the 80s where a person can look through and trawl through something and decide what’s bad, what’s good
[…]
The Judicial Registrar is accessing private information via a solicitor for the NT to get IJIS without my permission […] I actually rung up as soon as I found out about it. In September I talked to Jim Laouris. I said – and I also talked to Alexis Schubert. I said, “I’ve heard that they’re going to go through and list all my cases.” He said, “Well, I don't know if they could do that.” Okay, the words were, “Well, I'll only do what I can be instructed.” So, in other words, they knew that they couldn't. I said they couldn't. They told me they couldn't. […] Lachlan Peattie then instructed them and then said that was all right. He doesn't have the official power to do that. Only the police have the power to do that […]
[…] I don't have Ross on Crime, but one of the major cases was John Elliott was taken to the I think the National Crimes Commission and he was asked – they were using private information on him that the Crimes Commission was searching him to try to get him for fraud and criminal activity and they said – that was brought up I think in – I don't know, the Court of Appeal, said that he was – they couldn't do that.
In essence, the respondent submitted that:
(a)Ms Holmes and Mr Laouris accessed his private information which had been recorded on IJIS when they were not authorised to do so.
(b)The evidence contained in their affidavits was obtained through unlawful or improper means.
(c)The evidence should either be excluded or the proceeding stayed.
I overruled the respondent’s objection. It could not be sustained. IJIS is a computer information system established by the courts and a number of government agencies including the Department of Attorney-General, Police, and Corrections. It is the main information system of the courts in the Territory. The information on IJIS does not contain private information about the respondent. IJIS is used by the courts and the participating government agencies to record and access information about court proceedings and other matters. For example, after a court sentences an offender and commits him or her to prison, the committal order is entered into IJIS by court staff and may be accessed by Corrections staff.
Both Ms Holmes and Mr Laouris were authorised to access IJIS by virtue of their positions as senior court officers. There was nothing improper or unlawful in them using IJIS in the manner and for the purpose deposed to in their affidavits. The information they accessed was entered into IJIS by court staff. The same information can be obtained from the hard copies of court files. However, it is more efficient and less time consuming to obtain the information from IJIS where the data can be electronically searched.
The respondent’s reference to Ross on Crime[39] and to Mr John Elliott was most likely a reference to the cases of Jarrett v Seymour & Ors[40] and Elliott v Seymour & Ors,[41] which are discussed in Ross on Crime. The applicants in the cases were Mr Elliott, Mr Jarratt and Mr Camm. All of the applicants were directors or officers of Elders IXL Ltd. The respondents were Sergeant Douglas Seymour (a police officer), the National Crime Authority (‘NCA’), Mr Thomas Sherman (the head of the NCA), and the Director of Public Prosecutions for Victoria. The applicants obtained an interim ex parte injunction from Olney J in the Federal Court restraining the respondents from charging the applicants or any other person with any offence in relation to the “foreign exchange matter”. Their application to have the injunction extended was refused by Foster J[42] and their appeal against his Honour’s decision was dismissed by the Full Court of the Federal Court[43]. Likewise, a similar application, which was made to the High Court pending an application for special leave to appeal from the decision of the Full Court of the Federal Court, was refused by Gaudron J.[44] The applications were dismissed largely on grounds to do with the balance of convenience and the adequacy of the criminal process to deal with the issues raised by the applicants.
The facts in Jarrett v Seymour and Elliott v Seymour were as follows. The NCA investigated certain transactions which Elders IXL Ltd entered into. These transactions became known as the “foreign exchange matter”. The investigation had been conducted by the NCA purportedly pursuant to references given to the NCA under s 13 and s 14 of the National Crime Authority Act 1984 (Cth). Sergeant Seymour was a member of Australian Federal Police who was seconded to the NCA and had access to the information obtained by the NCA during its investigation into the foreign exchange matter. He formed the view that the NCA had obtained sufficient information to justify charging the applicants with criminal offences arising out of the relevant transactions. Sergeant Seymour was subsequently sworn in as a Special Constable of the Victorian Police Force. The NCA had no express power to lay or prosecute criminal charges. Instead, if it obtained evidence that is admissible in the prosecution of an offence, the NCA’s obligation under s 12(1) of the National Crime Authority Act 1984 (Cth) was to assemble the evidence and give it to a relevant enforcement agency or any person who is authorised under a law of the Commonwealth or a State or Territory to prosecute the offence. It was understood that: (i) the Director of Public Prosecutions (who was a relevant enforcement agency under s 12(1)) did not intend to lay any charges but would take over any prosecution initiated by another party; and (ii) Sergeant Seymour intended to lay criminal charges against the applicants.
Among other things, the applicants in Jarrett v Seymour and Elliott v Seymour contended that the references relied upon by the NCA under s 13 and s 14 of the National Crime Authority Act 1984 (Cth) were not valid references in so far as the necessary consultation and approval required by the sections had not be obtained and therefore any information obtained by the NCA was illegally obtained. As a result, the evidence would be inadmissible in any prosecution commenced against the applicants. Further, rather than referring the matter to a relevant enforcement agency, the NCA had adopted a ‘device’ of handing the prosecution of the matter to a sergeant of police who was a member of its staff. Therefore any prosecution was an abuse of process which was doomed to fail and should not be commenced.
The cases of Jarrett v Seymour and Elliott v Seymour are clearly distinguishable from this proceeding for the reasons stated at [38] to [39] above. For the same reasons, s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) has no application in this proceeding.
The respondent’s evidence
When this proceeding commenced the respondent was a prisoner in Darwin Correctional Centre. On 3 August 2017 he was served in prison with the Originating Motion by Mr Peattie. The respondent told Mr Peattie that he did not accept the documents and they were left with him.
On 21 August 2017 a call up order was made for the respondent to appear in court on 1 September 2017. On that day the respondent informed the Court that he had applied for legal aid and the proceeding was adjourned to 11 September 2017 pending the outcome of his application for legal aid. On 11 September 2017, Mr Mark Thomas of counsel appeared as amicus. Subsequently, the respondent retained Mr Thomas to act for him. It is unclear whether Mr Thomas’s representation of the respondent was obtained through legal aid or whether there was simply a grant of aid limited to investigating the respondent’s prospects of success. The Court directed the applicant file and serve all the material the applicant intended to rely on by the close of business on 22 September 2017 and the proceeding was adjourned to 9 October 2017.
On 11 September 2017 the respondent filed his written submissions. The document is a handwritten document that is about one centimetre thick. Some of the pages are upside down and the contents of the document are comprised of incoherent and irrelevant ramblings.
On 9 October 2017 the proceeding was listed for hearing on 18 and 19 January 2018 and the proceeding was adjourned to 19 October 2017. On 19 October 2017 the applicant was ordered to file the applicant’s written submissions by 24 November 2017 and the respondent was ordered to file any further written submissions by 4 January 2018. The respondent did not comply with this direction and no further written submissions were filed by him.
On 21 December 2017 the hearing dates of 18 and 19 January were vacated and the matter was listed for a two day hearing commencing on 31 January 2018.
On 15 January 2018 the respondent informed the Supreme Court Registry that he was seeking an adjournment because he was self-represented. He had been released from prison by this date. However, no interlocutory application seeking an order vacating the hearing dates was filed. On 16 January 2018 my Associate sent an email to the parties confirming the hearing dates of 31 January and 1 February 2018. On 17 January 2018 my Associate sent an email confirming the hearing dates to Mr Thomas who had up until 15 January 2015 been appearing on behalf of the respondent. On the same date, Mr Thomas replied by email stating that, “My position regarding whether I am instructed in this case is utterly uncertain and needs to be clarified as soon as possible.”
On 22 January 2018 Mr Thomas sent an email to my Associate advising the Court that he was no longer acting for the respondent.
On 30 January 2018 the respondent received a letter from the Northern Territory Legal Aid Commission advising him that legal aid had been refused and that he may appeal against the refusal of legal aid.
On 31 January 2018 Mr Thomas sought and was granted leave to cease acting for the respondent. He told the Court that he no longer proposed to act for the respondent. Why this was so was never made entirely clear. Mr Thomas told the Court that despite the respondent’s communication with the Registry on 15 January 2018, he had not informed Mr Thomas that he had withdrawn his retainer. At all times Mr Thomas understood that the respondent wanted him to act for him. It seems that Mr Thomas may have been experiencing difficulties arising out of another matter in which he had appeared as counsel.
The respondent was then asked to tell the court his position. Contrary to what he had stated on 15 January 2015, the respondent stated:
I’m not representing myself even at the moment because I asked for legal aid. I was granted legal aid […]. Mr Thomas also said during that time that if he ever ceased that I could make a grant (sic) for another legal aid lawyer and I have done that. I have put in an appeal for my legal aid grant. I have talked to grants and then they’ve given say three weeks to look at that. I also put in a pro bono situation (sic) to the Law Society.
The respondent informed the Court that he wished to appeal against the refusal of legal aid. In order to save time and to accord the maximum assistance to the respondent I made the following directions on 31 January 2018:
1.The applicant’s case was to be heard in full on 31 January 2018.
2.The applicant’s evidence is to be received de bene esse.
3.The respondent’s rights (either as a litigant in person or through his counsel if is ultimately successful in obtaining legal aid) to object to any of the applicant’s evidence, cross-examine the deponents of the applicants affidavits, tender evidence, and make submissions are preserved.
4.The full transcript of today’s proceedings is to be made available to the respondent.
5.The time for filing and serving the following affidavits is extended:
(a) The affidavit of Tracey Holmes sworn 29 January 2018.
(b) The affidavit of Dimitrios Laouris sworn 25 September 2017.
(c) The affidavit of Lachlan Sebastian Peattie sworn 22 September 2017.
7.Leave is granted for the applicant to amend the order sought in the Originating Motion and the summons on Originating Motion in the same terms set out in paragraph 2 of the applicant’s written submissions. The documents, amended accordingly, are to be filed and served by 7 February 2018.
8.The matter is adjourned for mention or directions to 9 am on 14 February 2018.
The above orders enabled the respondent to be as fully informed as possible about the applicant’s case and to be accorded more than adequate time to prepare his case. A similar course was adopted by Adamson J in Attorney General (NSW) v Chan.[45] Nonetheless, the orders I made were resisted by the respondent.
After the orders were made, the respondent left the court. However, after Ms Brebner started presenting the applicant’s case, he reappeared and interrupted the hearing. The matter was then stood down until 12 pm to enable the respondent to have a lawyer from the Northern Territory Legal Aid Commission appear on his behalf. At 12 pm Ms Fu appeared to assist the Court. She did not appear on behalf of the respondent. Ms Fu told the Court that she was the Managing Practitioner of the Grants and Assignments Section of the Northern Territory Legal Aid Commission. Ms Fu was informed of the basis on which the Court was proceeding. She then left. Ms Brebner then continued to present the applicant’s case. After that Mr Peattie addressed the Court on the criminal proceedings involving the respondent. The respondent was absent during Ms Brebner’s presentation of the applicant’s case but returned during Mr Peattie’s address. When he returned I informed him that he had waived his right to be present during his absence and that the case was proceeding as I had ordered. The respondent continued to interrupt the proceeding and was ultimately physically removed from the courtroom for a period of time to enable counsel to complete the applicant’s case. At the conclusion of the presentation of the applicant’s case the basis on which the court was proceeding was again explained to the respondent.
The respondent was subsequently provided with the transcript of the hearing on 31 January 2018, copies of the Act and the authorities on which the applicant relied, and a document containing a list of proceedings relied on by the applicant which identified whether the proceeding was a substantive or interlocutory proceeding, stated the basis on which it was alleged that the proceeding was vexatious, and identified the affidavit in which the relevant evidence could be found. He was also provided with further copies of the applicant’s written submissions and the affidavits on which the applicant relied.
Before 14 February 2018 the Court was advised that the respondent had been refused legal aid and that he had 14 days to further appeal. On 14 February the proceeding was adjourned to 28 February 2018. On 28 February 2018 the matter was adjourned to 22 March 2018. On 22 March 2018 the matter was adjourned to 14 May 2018. On 14 May 2018 the matter was adjourned to 15 May 2018. The purpose of these adjournments was to enable the respondent to exhaust the legal aid appeal process and to see if he could obtain pro bono assistance. He was unsuccessful in obtaining legal aid. However, it appeared that he may be able to obtain assistance from Ms Felicity Gerry QC. On 15 May Ms Gerry appeared by telephone. At that stage she had not been able to formulate a concrete plan to assist the respondent and was unavailable for an extended period of time. In the circumstances, it appeared as though all potential avenues of assistance for the respondent had been exhausted and I made the following orders.
1.The respondent’s written submissions are to be filed and served by 11 June 2018.
2.The applicant’s reply is to be filed and served by 25 June 2018.
3.The matter is listed for hearing for one day on 16 July 2018.
4.Ms Gerry QC and the respondent are granted liberty to apply to bring the matter back at short notice if they are able to formulate a concrete plan for assisting the respondent and a timeline for that assistance [They were unable to do so.].
On 12 June 2018 the time for filing the respondent’s written submissions was extended to the close of business on 13 June 2018. The respondent did not comply with this direction. Ultimately, he was granted leave to: (i) give oral evidence; (ii) call witnesses by way of telephone link; and (iii) make oral submissions.
On 16 July 2018 I informed the respondent that the Court would be proceeding in the following manner: (i) I would hear his objections to the applicant’s affidavits; (ii) the court would receive his evidence; and (iii) he could make any submissions that he wished to make. He was then asked if he had any objections to the applicant’s affidavits. His primary objection was that the applicant could only rely on civil cases not criminal cases. As I have stated at [30] above, I determined that civil and criminal proceedings instituted by the respondent could be relied on and I had no regard to the criminal cases in which the respondent was the defendant. For the remainder, his objections consisted of incoherent and discursive rambling and agitated and vituperative gabbling.
After the respondent’s objections were dealt with the respondent gave evidence. His evidence was incoherent and largely irrelevant. At no stage did he attempt to address the matters set out at [8] above. For example, he stated the following.
Hello, my name is Trevor Jenkins and I’m here defending myself in a vexation litigation. I don’t use computers because they hurt my eyes and destroy my retinas and they create cancer, so I won’t use computers, so I want that taken into account when you’re saying I am vexatious and handwrite documents, because I – you know, that’s the way it is.
[…]
My personality and behaviour is that I’m a devout Christian and artistic zeal and they aren’t supported as vexatious by any legal definition currently at play of 2018, so I don’t see anything about being an artist or being an activist or being what (inaudible) an unreasonable man. The reasonable man fits into the system. The unreasonable man makes the system fit into his ideas. There wouldn’t be any progress without the unreasonable man and then there is a situation also, Murphy J quoted in his High Court case, “We couldn’t have any change unless people were actually standing up for the system, especially for poor people.” That’s been my life. That’s the life that I live and in all the cases that I’ve had with Kelly J and Grant J (sic) and the people that are quoted extensively and I go through those statements about how I’m wasting time. There’s no – I have never been able to give evidence on being an artist. Kelly J said, “I don’t want him talking about being an artist. I want him to shut up.”[46] Grant J (sic) will go, “He just talks gibberish.” I don’t speak – I don’t speak gibberish. I stand for government, I talk on the radio, I talk at festivals. People say I speak very well and I do speak very well and you can hear me here and I get a chance to talk and when I get a chance to speak, people understand me and I speak very well. I’m well known in the Northern Territory and I’m a Northern Territory legend.
[…]
I’ve gone down to mediation here even with the Registrar themself. They don’t want to talk to me. They don’t want to sit down and go through those things. They don’t want to mediate. The situation of being a vexatious litigant is because it’s the only way for me to meet these people – and I email them, they don’t answer me. When I write a letter, they don’t answer me, unless I go to antidiscrimination…
I went to antidiscrimination about this particular case of filing documents and being able to use the library on things. I went to the antidiscrimination, the new yourself Southwood J, there was – there is machinations involved with Daniel McGregor to go, “Oh well, Mr Jenkins can’t even use the antidiscrimination system.” So a system outside the court, a system where you can mediate, I wasn’t allowed to use that. An order was issued, so then I have to challenge that order just to get my rights, just to be the person that I am.
[…]
I started talking about Jenkins v Screening Authority and I gave you a background on that. And then there was cases with the ochre card that I became aware that the ochre card screening was under the police situation and I was aware because I will make a lot of complaints to the ombudsman and the ombudsman has – completes complaints, so I was aware that I was being targeted by people making me apply and not get an ochre card simply because I’d given evidence under the - to the ombudsman and there was a retaliation aspect of that.
[…]
I feel extensively that, administratively, through the Supreme Court and through the Registry and also through cases that I’ve taken primarily against Daniel McGregor and also towards people in the prosecution, the DPP, I feel that when cases have been brought against me as a retaliation because those people haven’t been set aside. When I took the case, the case that I was going to talk about with – just before, Jenkins v McGregor which I have as 21618385, after that case, Daniel McGregor should have been stood aside until that happened, but then he was in power to be able to exercise things that happened, which then I believe led me to be arrested and exercised things where he was having the jurisdiction over me he shouldn’t of had when I was the complainant. And that’s – so I have taken those matters up with what you call the blow the whistle, the PID, which then all of those things will eventually become ICAC cases. So that’s what I – I believe in justice in those situations. It’s certainly not – a vexatious thing is about trying to hurt people and bring them into things where you don’t have a case. I definitely have a case. I’m not trying to waste the court’s time because I have tried and tried and tried to go through every avenue from the health complaints commission to getting the matter reviewed to going to the Justice – I don’t know what you call it. It’s like the community Justice Centre. People don’t want to mediate. People don’t want to talk. Even in this situation, there should have been a mediation, but you didn’t – he didn’t hand it to a mediation. I’m that kind of person. I mean, I go to church every week. I’m for change within the system.
[…]
Ruth Brebner will say, “There’s a different ways of doing this, Mr Jenkins.” Well, I go through all those recommendations and I go through that, that the people themselves have to be held to account to those things, because my experience, when I was in gaol, even the evidence that I’ve given on just or – tapes and things like that of the recordings of the – my phone calls to the court, I was told I couldn’t appeal when I was in gaol because I was sentenced. You can appeal when you’re sentenced. I can put in the forms to do that. When I get told that Daniel McGregor told me that I couldn’t actually cross-examine staff. Witnesses aren’t – property, so he is not able to tell me that.
[…]
There was a situation where I went up to the – I was using the Supreme – because I was a self-represented litigant. I was using the Supreme Court Library. I sat up there with Frieda and two other women up there. I got on famously with them and I got cases done, organising me to be able to do forms and organise that, to understand the system, to watch things, to do that. I understand all that. And when a situation – I can’t – there’s only one other legal library in Darwin that a person can use and that’s out at the Charles Darwin. They don’t keep books on the shelf. They don’t. They don’t even keep up their records correctly. You go to get legislation, this thing is missing. That doesn’t happen up there. I mean if I want to get a full representation using my mind and like I – I have – a genius IQ of over 220. So I write, I paint, I sing, I play guitar. I do all those things at a rate that other people don’t.
[…]
People have opinions. People have reasons for doing things. They want to stop me because I represent poor people representing those things and I think that you’ve got a lesser full robust justice system when you are not listening to the poor people. And in the situation over in Old Bailey, on the front, it says “Defend the poor.” That’s the whole chamber of the Westminster system. They were not killing people, they’re not sending people to jail that are get a fair justice system. In the history – I mean, I was reading about the history of the courts, however ended up with legalism and people just saying, “Well because you did this, this and this, Mr Jenkins, your forms are not right. Because you do this, and this and this, Mr Jenkins you are vexatious. Because you did this, this and this, Mr Jenkins you are trespassing.” That was – that was never the case.
[…]
So when Kelly J said something like, “He is the lowest of the low”, I am not. I am the highest of the high. I understand what I’m doing. I going to those places to live like that Francis of Assisi or artists to be able to understand the system and work at that level to see what the problems are. That is what I do. I’m a bonus to the system, if you can understand it, you know.
[…]
… the original one … It was when I was arrested at the literary awards. Now people are telling me that I couldn’t come there when I come every year to the literary awards. I’m a writer. I couldn’t even present that I was a writer. I couldn’t even present that I was a writer and Alan Woodcock goes, “You’re not even a writer.” I presented that I was a writer, and I was told in court that lie. These particular people lied in court and that’s why took a case here… The Whittington case, 21617016 as the case I’m talking about. And that was just before I went to goal, that was going to a three court appeal. So there was submission evidence for that to go to a three court appeal and the only reason I couldn’t prosecute that was because when I was put into goal, which is why I took the Attorney-General justice case and I talked about it at my – the Holtze hotel thing, you can’t get legal documents out in prison.
[…]
When I was outside, I had access to lawyers that I know. I’m smart enough to be able to go to lawyers and get advice, work within the law – the Law library to understand what I’m doing and then get advice and work with that. Then the situation that Daniel McGregor instituted, then I feel you should have been recused, Southwood J because you issued an order without even knowing me about a basis I can’t use the library, it went through a thing. These are natural injustices without me being able to talk and we’ve been able to just say why those situation is happening and all I can see is an attack on poor people, especially being able to represent themself.
I did not know what a vexatious litigant was, so I got the only books that’s available in Australia by Simon Smith. This covers 1930 to 2008. They call it Maverick Litigants. And he basically covers a lot of people who are basically – they are reformers. They are people – there was a woman in there who actually organises herself to be with the RSPCA in the 60s and the 70s when they were covering for a lost dog.
[…]
So one of the issues of the problem in a small jurisdiction, which makes me look like I’m vexatious as opposed to the people who have taken maybe 300 or 400 cases over an extensive time in here is the Supreme Court in Darwin in the Northern Territory, everything comes to the Supreme Court. If I want to file a case at antidiscrimination, that has to come to the Supreme Court on appeal. If I want to get witnesses in the lower court and the prosecution says they don’t want to, I have to come and appeal, and I’ve done, to be able to get witnesses to appear by that. If you had a District Court here and that, you wouldn’t have those same situations and there would be a situation around that.
[…]
… The amount of emails I sent to Greg Shanahan, the amount of things that are doing that, to get reforms, to get reforms on the Trespass Act, to get reforms on things that make it easier for people who are homeless to just access normal services and to be able to access the quality of things to get the education that I do. Imagine homeless people in this day and age turning up to the University, okay. Security comes out and asked them why they’re there. They can’t read and write. They don’t know where anything is. They can get asked to leave because they’re coming up to ask someone for a cigarette because they – they just want to find their way around. They could be asked to leave before they even get to the chance of going to somewhere to organise where they’re at, okay. So that’s what you’re dealing with and are not happy with that and I won’t live with that. So that if I’m smart enough to stand and talk and do something, that’s why I’m here. So I take cases for example, in the McGregor case 21618385, was particularly about being able to contempt and the contempt case within that was – was with Justice Barr after I was actually defending and I – and I tried and I tried and I tried to present that case to the infuriation of myself to be able to understand – to be heard because I couldn’t believe that people would be able to give evidence and lie against me and stand there and I’m not gonna be – stand there and told that, on a CCTV footage, that I was screaming out of the top of my voice and yelling when I wasn’t screaming out at the top of my voice and yelling, and I was walking around. I said over and over again – and this is after nine months goal, after all those things. I’m not gonna be told that it was doing something that I wasn’t and people to be still living in a job there, doing that. It is not right. It is not moral. I can’t live with that. So that’s the situation of being able to stand up for yourself and do that.
The other cases that I have was, as an artist and as a person, is the City of Darwin case where the City of Darwin, which was the council, was telling me about – they came up to me and I was – I was doing sculpture on the side of the road in Smith Street. So build a sculpture, so I am well-known as – the tourist channel plays a video of me, where people come and see me doing sculptures. So people come to Darwin, take my photo, organise myself. That’s how get paid and that’s how I live and that’s my personality, who I am, okay. So the council knows that. The council benefits from that. I work for them for free to do Homeless Connect. They use me on all those things. Then they come around and the rangers and the people who are working within the security system are then being told, “Go out there. He is doing this. He’s building this. Take a photo. Okay, he’s putting – he took rubbish out of a bin and he made that, so therefore it was a littering thing.” Now, other people would go, “Okay, don’t worry about that. Just pay a fine dah, dah, dah.” The problem is with that that if I’m trying to have a career and I’m trying to do things and trying to do things for art and freedom of speech, which I feel strongly about that has to have a voice.
[…]
Toohey J specially worked towards the justice system – and this is quoted in Dietrich as well, talking about that the whole justice system and the courts have a defined role, more in America than in England but I don’t see why it shouldn’t be in Australia, especially without our Bill of Rights and changes to the Constitution. If it can be, and this is why I fight my cases and why I’m fighting this case and why I’m talking about – the court can be an avenue to talk about people’s – in tune with the community, listening to the community, and if people – myself, when I did this show, people are crying out for art because art gives them the freedom to be able to – it’s a community development voice. My feeling is that community development can lead to major changes. So I stepped into the justice system to stand up because I have a sense of justice and that is why I live with that and that’s a calling that comes from a depth. Not out of – there seems to be this thing that, “You’re just taking people to court. You’re making it last for months and months and therefore you are just trying to drag people through. You are destroying your own reputation, Trevor.” […] The other people just – it’s annoying them, et cetera. […] It’s more and more important for poor people with a mind and with a sense of justice and a sense of strength to be able to stand up and cover those things in a real way and quoting legislation. I’m not trying to annoy anyone. It’s my calling to stand there as a kind of prophet within the church for poor people and to be able to say those things that are important and I feel from the heart. […]
I live with that and I do it in the best way I can, from letters to emails and if people don’t wanna (sic) talk and people don’t wanna (sic) come to the party people don’t wanna (sic) do things, then situationally more and more it becomes, “You said this. You are not allowed to do that.” […] Well, I just don’t believe in that sort of organisation of how things are. I believe that also within – I’ll go back to these – the original - the cases that I had that were the private prosecutions, I can’t see how they can possibly be vexatious within the – within the original – Jenkins v Cox, Jenkins v Emmett Darby, Jenkins v Todd, Jenkins v Caldwell, Jenkins v Kyprios, Mark Daffy, Jenkins v Rowbottam, Jenkins v Rabbe and some cases that I had within the goal system, at the end I didn’t get – at that time, just after I got to goal, my mother had died when I was in gaol, I was trying to organise about going back down and doing things with the funeral, so didn’t even – those cases didn’t even get off the ground. I can’t see how you can be vexatious. I can’t also see cases about situationally where I filed, especially in those other cases, often I have filed and then those filings are seen as not being seen to be done.
So when I was in gaol over that time from April through to thing, I sent letters. I sent in things and it takes like a month, two months, to get those cases to get those cases thing, to do that. I don’t – didn’t have a situation of being able to send someone in and put in forms and do that sort of thing. So it wasn’t vexatious. I could have put those things in. I asked for those things to be emailed. I was working with the PSO for things to be emailed and organised in. I was told by Rabbe, which is why I took a case, to say I couldn’t do that. That’s just a denial of natural justice.
There’s (sic) plenty of people who are able to take those cases and represent themselves and there’s not – there’s not because of the cutbacks in legal aid and because of the cutbacks in the NAAJA system things are having to be put on hold. You look at the administrative with the - I just talk to you about, with legal aid. I don’t think - they are not - the thing of merit has much more to do with “we don’t have the resources and the time to be able to do the case, not that you couldn’t win,” you know. It’s not that they don’t have merit. It’s just that they can’t afford - it’s an economic decision because they can’t - legal aid lawyers now have 200 clients. It’d be the same for NAJAA.
So don’t really want to be in their even doing that resources because I’m fighting from an artistic point of view and from the view of community development. That’s - I chip away at my cases. So that I come in and I say, “Right oh, I need these witnesses to be able to - the case I fought with - versus Todd, in the case of the Supreme Court - not the Supreme Court, the Parliament House, there were independent witnesses which needed to be called under the DPP Act. They are supposed to call all available witnesses. I showed them on the CCTV footage. I sent them to the police. I sent to show - nobody even did that but there were statements made by the prosecutor at that stage, a young man who since been - gone away, Peter Clayton. He then said that, “We have made every effort to get every witness.” I said, “That is wrong.” And then I said in court, “That is wrong.” That wasn’t even picked up by Barr in the appeal. I objected to that. He then says, “Did you object?” I said, “Yes.” I showed the page where I objected. “You believe that?” “No we don’t think that was an objection Mr Jenkins.” That’s why I appealed it to three court judges because I objected to the fact that the -all the witnesses and all the CCTV…
The same in my case with - it was the - when I was charged with contempt and leaving the court, in Kelly’s court, in the start of -it was the end of -the start of February 2016, I didn’t get to deliver all the evidence and so when Justice Neill did that and all the evidence wasn’t provided, so all the CCTV wasn’t provided, people were witnesses who worked in the court won’t there. It’s a natural thing in any appeal to be able to do that and people… It’d on for me, with my mind, not to do that and to take every available opportunity and I’ll go back to the fact of with the ochre card and with things, if I’m -if I have a criminal conviction in doing that, if you feel that the system is just bureaucratically going -I walk somewhere…
[…]
… People tell me that I was in contempt of court because I took off my clothes. I was never charged with taking of my clothes in a vulnerable witness [room].
[…]
I think you got the spelling wrong, okay. C-o-u-r-a-g-o-s (sic) is what I am, not v-e-x-a-t-i-o-s (sic), you know. You’ve got the wrong situation. You’ve got the wrong person, you know. […]
My situation’s simple administrative things that people are bundled up and because of the lack of money and because of the lack of administrative skill, because of the lack of legal training, they are making wrong decisions. Daniel McGregor is making wrong decisions because he’s not legally trained and is giving poor advice. The same as Kaylyn Norton is giving wrong legal advice. Sarah Milligan is okay but she’s being influenced by Daniel McGregor. I don’t see that’s right and I won’t put up with that kind of culture because there are people out in goal that is spending years and years there that don’t need to, that are suffering, that will commit suicide, and I don’t put up with that. I don’t. I don’t. As a Christian, I am prepared even to go to gaol to be able to understand that, as you know what I mean? I live for that. So it’s not that I mentally ill. It’s not that I’m crazy. I’m an artist and I really care about people and I’m a Christian. That is why I live my cases. Now, that’s got nothing to do - I’ve read right through this. I’ve read it, I read it back to front. No, I’m not vexatious. It’s got nothing to do with vexatious. I’m not trying to hurt anybody. I’m trying to make the world a better place and I can’t see how I’m dragging people through things. So vexatious, as I read it, is that, there is no basis for your case. Well there’s been a basis for everything I’ve had, including getting witnesses, getting appeals, getting those things. There’s been a basis and I’ve written them out on that basis.
Probably, maybe in the way I write, people can’t understand it but when I stand there and a justice is able to go, “What are you trying to say Mr Jenkins?” And I explain it, these things are quite clear in what I’m doing, which is trying to get a better access to CCTV footage, better access to witnesses, so you have a full case, see have something to represent, so that you have a full hearing and if I feel that there is any better way for it to be done, I do that. […] So, I don’t see it in a small light. Like, “I am Mr Jenkins. I don’t know what’s going on. I’m just trying to get…” That’s a false representation of who I am. I get angry about that because I’m not some kind of little angry person trying to get my way and make the system bad. I’m not that person. […] That’s not me. And I’m going to be giving evidence from different priests and different people who know me outside of this, and artists and people who know me and understand who I am and understand what I live for. You can’t see it with a high-class, refined, legalistic nature of something that is channelling people. But there is an effect on that. There’s a judgement there that they can’t get out of. There’s effect on poor people. I’m fighting against it so that gives them the confidence to fight against it because they’re not what people say and if we are wanting people to get out of goal and get out of that system and that system has got to be reformed… Then that’s important that someone like me exists and if I don’t exist and you just throw me out and give me a label and go, “Hey his vexatious,”… People are gonna believe less in the system unless you want to say, “Okay, Mr Jenkins, this is the way we can work in towards you doing these things. You are not vexatious. These cases have a real value in those things because you’ve got situations where you’re talking about people who are lying in evidence,”…
[…]
But there’s legislation and people don’t want to listen and people don’t want to talk. So you then have to take a case to say there’s something wrong with that and that’s -all over history. That’s the way it’s been with reformers having to take a case which shows up the problems. The Salvation Army, William Bramble, in the 1870s I think, he took a young girl and said -procured her as, like a sexual slave and then got arrested to show that there was child prostitution because no one believed child prostitution exists. So he was prepared to do that to show the system. Is that an abuse of the system? No, I don’t think so, you know. And Trevor Jenkins is the same. He is taking cases to show the problems with the system and wanting to look at that, you know. It’s different, you know. The thing about being angry and hard and all those sort of things that you -it’s wrong. So that’s kind of- that’s my overview of that but I’m quite prepared for cross examination or whatever they want to do now.
The applicant’s case was based on proceedings that were instigated or conducted by the respondent in the Supreme Court since 1 January 2015 and in the Local Court since 1 January 2014. The respondent subsequently applied for leave to give evidence about cases that he had instigated or conducted prior to those dates on the basis that he had been successful in his conduct of them. Although such evidence was irrelevant, he was nonetheless given leave to give further evidence. Contrary to what was asserted, it emerged through the respondent’s further evidence that he was largely unsuccessful in those earlier cases also.
Mr Jenkins also led oral evidence via a telephone link from Father Dan Bernedetti and Mr Ron Strachan. Father Bernedetti gave evidence that he had known the respondent for over 10 years. The respondent was a regular visitor to his church and had displayed a lot of desire to help homeless people who are on the margins of society. The respondent had helped a lot of Indigenous men in prison who have struggled with the system. He also gave the following evidence.
Witness:Trevor does display, at times, behaviour that is unique in the sense that he does have a passion about his ideas and about his sense of the injustices that are in the world. I have had a number of conversations with him about strategies about how to support and help people.
Respondent:Could you talk briefly just about the prophetic side as you see it?
Witness:Well, this is an interesting concept about in the Biblical sense we have what people might term prophets and people who perhaps have a public message to give to stand up for what they believe in. Now, there – in a sense, Trevor seems to have something of a prophetic nature about him in that he has a message that he wants to bring and bring it in perhaps public ways and so I do, in a sense, see a positive but also a challenging side of that because in one way it does bring attention but in other ways it can be quite confronting. But I do believe in society today we do need people, in appropriate ways, to stand up and to speak what they believe is true. And at our church, Trevor has sought to encourage us in that sort of way as well, but I do think that it’s a challenging thing to do because when you are in the public eye you have to be as discerning as you can be as to how you deliver a message. Because that can be done in a number of different ways and to try and keep people’s dignity in mind is, I think, an important aspect of that as well. Yes, so I do believe in that prophetic sort of expression, but it needs to be done in a very respectful way.
Respondent:Do you see that as part of the body of Christ and a society in general that a person can do those sort of things?
Witness:Well, as I say, I think that my faith encourages me to look at the person and Jesus and how he, in his words, and in his actions was, in a sense, prophetic. He spoke about and he did what he felt God was asking him to do. Now, that needs to be done in, as I say, a respectful way and in a way that is seeking to build up society and help particularly the marginalised.
Mr Strachan gave evidence that about eight years ago the respondent was a guest speaker at a Rotary Club that he belonged to. He spoke about homeless people. He had seen the respondent do some rubbish artwork around town which some people admire and others do not.
In addition the respondent tendered in evidence: (i) a disc containing recordings of conversations between the appellant and staff in the Supreme Court Registry for the purpose of demonstrating that on a number of occasions the respondent had behaved in a courteous manner towards staff in the Registry; (ii) a number of character references; and (iii) three bundles of documents. The disc showed that the respondent behaved in a courteous manner towards Registry staff on a number of occasions.
The character references established the following. Between 2010 and 2015 the respondent was the chaplain of St Martin de Porres Catholic Aboriginal Community. Between 2010 and 2017 he was the Catholic prison chaplain at Darwin Correctional Centre. He had been a frequent visitor of a Catholic Church in Darwin and had displayed compassion and concern for those struggling to survive. The respondent had applied for an Ochre Card because it was a requirement of the AFLNT and other Northern Territory sporting organisations that all employees and volunteers hold a current Ochre Card. The lack of an Ochre Card was the only requirement preventing the respondent from participating in paid part-time work as a boundary umpire for the AFLNT. In 2016 and 2018 the respondent presented work as part of the Darwin Fringe Festival for free for members of the Darwin community. He was scheduled to create a sequel to his 2016 work Black Plastic Theatre in 2017, but was incarcerated and was unable to participate. In 2018 he created a work about his time in Holtze prison which was titled “Holtze Hotel”.
The two bundles of documents, which were in total about four centimetres thick, contained a variety of documents which were largely incoherent, indecipherable and irrelevant.
The respondent’s conduct of his defence
Despite the best endeavours of the Court and both counsel for the applicant to assist the respondent, he conducted his defence of these proceedings in a scandalous and vexatious manner. He deliberately interrupted the proceeding by shouting and speaking over counsel and myself, accusing various people and the court of being corrupt, by complaining that he had not been provided with or had lost documents when he had been provided with all of the documents on a number of occasions, by making groundless applications and by speaking about irrelevant matters for extended periods of time. He deliberately engaged in such tactics in order to delay the proceeding and to try and avoid hearing about matters he did not wish to hear about.
Consideration of the applicant’s case
Counsel for the applicant prepared a very useful document which listed and summarised all of the 72 substantive and interlocutory proceedings which were said to be vexatious. The document: (i) identified the substantive proceedings; (ii) identified the interlocutory proceedings; (iii) grouped the proceedings according to the substantive proceedings; and (iv) provided particulars of the basis on which it was said that each proceeding was vexatious. Four of these were criminal proceedings in which the respondent was the defendant.[47] I found it unnecessary to consider those four proceedings.
The proceedings relied on by the applicant were grouped as follows: (i) Screening Authority proceedings; (ii) Darwin City Council proceedings (iii) Whittington proceedings; (iv) McGregor proceedings (v) Jenkins v O’Neill proceeding (v) Firth proceedings; (vi) Library proceedings; (vii) Private prosecutions; and (viii) Todd proceedings.
Screening Authority proceedings[48]
The Screening Authority proceedings concern 15 proceedings which were instituted by the respondent. They comprise six substantive proceedings and eight interlocutory proceedings in the Local Court and one substantive proceeding in the Supreme Court.[49] The proceedings arose out of the respondent’s unsuccessful application for a clearance notice (Ochre Card) for child-related employment under s 188 of the Care and Protection of Children Act 2007 (NT). It seems that the respondent applied for the clearance notice in 2012 so he could work as a boundary umpire with AFLNT. His application was refused by members of the Screening Authority on 11 August 2014.
The Screening Authority is established under s 196 of the Care and Protection of Children Act 2007. It consists of one or more members appointed by the responsible Minister. Under that legislation, any individual who is engaged in child-related employment must hold a current clearance notice.[50] The Screening Authority is responsible for determining applications for the issue of clearance notices.[51] The Screening Authority must not issue a clearance notice if the applicant or candidate has been convicted of an offence, or has a criminal history, which is prescribed by regulation; or if the Screening Authority decides, having regard to the administrative guidelines, that the candidate poses an unacceptable risk of harm or exploitation to children.[52] The prescribed offences are set out in Schedule 3 of the Care and Protection of Children (Screening) Regulations 2010. The prescribed offences are made up of sexual and other offences, including drug offences, involving children. There is no evidence before this Court about why the respondent’s application was refused. The Screening Authority seemed to have given weight to the respondent’s criminal history and his mental state. It was not suggested that he had committed any offences involving children.
Under s 194 of Care and Protection of Children Act 2007 an unsuccessful applicant for a clearance notice may apply to the Local Court for a review of the decision of the Screening Authority not to issue him or her with a clearance notice. A review is a hearing de novo and the Local Court is not limited by the material before the Screening Authority.[53]
On 5 November 2014 the respondent filed (out of time) a handwritten Notice of Appeal (constituting Local Court file no. 21451437) seeking to review the decision of the Screening Authority refusing his application for a clearance notice.[54] The respondent incorrectly named the “Screening Authority Police Members” as the respondent to his appeal. He should have named the individual members of the Screening Authority who made the decision to refuse his application for a clearance notice. The Screening Authority has no legal personality. The pleading in the Notice of Appeal did not identify with any particularity the decision which was the subject of the appeal. The relevant decision was only identified as a decision dated the “3rd”; no month or year was stated. The grounds of review were largely incoherent but appear to state, among other indecipherable grounds, the following grounds of appeal: (i) the respondent is “not a paedophile” and there were “no allegations of criminal charges”; (ii) the “complaint children [and] police colluded”, (iii) the police colluded in accessing private information; (iv) the conduct of the Screening Authority was harassing and defamatory; and (v) the Screening Authority engaged in professional misconduct under the “Federal Public Servant Misconduct Act” (which was never enacted and did not exist).[55] The grounds of appeal were scandalous and had no reasonable prospects of success because the appeal to the Local Court was a hearing de novo and the prior consideration of the respondent’s application by the members of the Screening Authority was irrelevant. It may be inferred from the contents of the respondent’s Notice of Appeal that the respondent deliberately chose not to try to establish that he was a suitable candidate for a clearance notice. Instead, he chose to pursue a false conspiracy theory against the police and the Screening Assessment for Employment – Northern Territory (SAFE NT) because he believed that as a result of his homeless status he had been mistreated by: (i) the Screening Authority as they had taken what he considered to be an inordinate amount of time to decide his application for a clearance notice; and (ii) the police and SAFE NT when he was removed from SAFE NT’s offices on 17 October 2012.
On 24 November 2014 the respondent failed to appear at a prehearing conference and the Notice of Appeal was dismissed.[56]
On 22 June 2015, almost seven months later, the respondent re-filed the original Notice of Appeal (constituting Local Court file No. 21457818).[57] This proceeding was ultimately struck out on 30 March 2017.
On 21 September 2015 the respondent failed to attend a directions hearing and the proceeding constituting Local Court file No. 21457818 was dismissed.[58] On 28 September 2015 the respondent filed an Application for Order to be Set Aside and Re-Hearing regarding that decision (with accompanying affidavit).[59] The application was granted on 26 October 2015 and the proceeding was reinstated.[60]
On 6 January 2016 the respondent issued nine Summonses to Give Evidence and eight Summonses for the Production of Evidence.[61] The summonses to give evidence were addressed to:[62]
·Donna Quong who is the Assistant Director of SAFE NT, an office which assists the Screening Authority in processing applications for clearance notices.
·Ray Curran who was formerly a Senior Policy Officer with SAFE NT who was acting as Assistant Director when the respondent first lodged an application for a clearance notice. He was present when the respondent was removed by police from the SAFE NT offices on 17 October 2012. The respondent’s purpose for requiring Mr Curran to give evidence was to establish in the first instance that his removal from the SAFE NT offices was unwarranted and unlawful, and ultimately to establish that police exerted an undue influence over the activities of SAFE NT and over the determinations of the Screening Authority.
·Ian Forrest who was a Customer Services Officer with SAFE NT and was also present when the respondent was removed by police from the SAFE NT offices on 17 October 2012. The respondent’s purpose for requiring Mr Forrest to give evidence was the same as for Mr Curran.
·Kristina Charles who was one of the police officers who removed the respondent from the SAFE NT offices on 17 October 2012. The respondent’s purpose for requiring Ms Charles to give evidence was the same as for Mr Curran.
·Kassandra Dunser who was one of the police officers who removed the respondent from the SAFE NT offices on 17 October 2012. The respondent’s purpose for requiring Ms Dunser to give evidence was the same as for Mr Curran.
·Tanith Blair who was one of the police officers who removed the respondent from the SAFE NT offices on 17 October 2012. The respondent’s purpose for requiring this person to give evidence was the same as for Mr Curran.
·Paul Faustmann who was one of the police officers who removed the respondent from the SAFE NT offices on 17 October 2012. The respondent’s purpose for requiring Mr Faustmann to give evidence was the same as for Mr Curran.
·To “all members [of the] Screening Authority that screened [the] application [by] Trevor Jenkins from January 2013 — first screening”. This summons was defective as it failed to identify the individual or other entity over whom it was intended to operate. The respondent’s purpose for issuing this summons was the same as for Mr Curran, and to challenge the basis on which the respondent’s application for the clearance notice was refused.
·To “all members [of the] second screening authority that screened [the application by] Trevor Jenkins from 1st June 2013”. This summons was also defective for the same reason as stated above. The respondent’s purpose for issuing this summons was also the same as for Mr Curran, and to challenge the basis on which the respondent’s application for a clearance notice was refused.
Seven of the summonses to produce documents were directed to SAFE NT which has no legal personality. That agency assists the Screening Authority in processing applications for clearance notices. The administrative assistance includes managing the operation of the Screening Authority, providing criminal history checks, making recommendations on clearance notices, and recording steps taken in the assessment of applications. The summonses seek: (i) the names of all members of the Screening Authority at the relevant times; (ii) all documents “concerning police witnesses and dealings”; (iii) all correspondence between Ray Curran, police and the Screening Authority; and (iv) all documents explaining the delays in the assessment of the applicant’s application. The purpose of the respondent seeking these documents was to try and verify his belief that the police had exerted undue influence over the Screening Authority; and to establish a conspiracy between the police and the Screening Authority to unlawfully delay and refuse the respondent’s application for a clearance notice.[63]
The other summons to produce documents was directed to Ray Curran and sought all documents held by SAFE NT relating to the respondent from 1 June 2013 to the present time. At all material times Mr Curran had ceased to be employed by SAFE NT. He did not have possession, custody or control of the documents which were the subject of the summons.[64]
On 11 January 2016 the substantive proceeding was mentioned in the Local Court and there was some discussion about the summonses that the respondent had issued. The presiding Judge gave a preliminary indication that the summons directed to Ms Quong would not be set aside but the other summonses would be, and the Judge directed the Screening Authority to file all of the material on which it sought to rely by the close of business on that day.
On 25 January 2016 the proceeding was mentioned in the Local Court. The respondent did not appear. Chief Judge Lowndes set aside 16 of the summonses as an abuse of process.[65] His Honour did not set aside the summons addressed to Ms Quong. The Screening Authority filed two affidavits made by Ms Quong in the review proceeding. Ms Quong annexed to her affidavits the materials that the Screening Authority relied on to demonstrate the respondent’s ineligibility for a clearance notice.[66]
On or before 12 February 2016 the Screening Authority filed all the material it relied on at that time for the purposes of the proceeding in the Local Court. On 12 February 2016 the matter was mentioned in the Local Court and counsel appearing for the Screening Authority asked that the substantive proceeding be set down for hearing. The respondent opposed the matter being allocated hearing dates on the basis that he could not present his case without the production of the documents which were the subject of the summonses he had caused to be issued. Chief Judge Lowndes explained to the respondent that the review proceeding in the Local Court was a de novo hearing and that everything would start all over again. The Local Court stands in the shoes of the Screening Authority and the Local Court must decide if the respondent should get a clearance notice or not. The respondent’s approach was stopping the Local Court dealing with the real issue which was whether the respondent should get an ochre card. 16 of the summonses were set aside because they had nothing to do with the proceeding in the Local Court.
On 18 March 2016 the respondent filed an Application for Leave to Appeal in the Supreme Court against Chief Judge Lowndes’s ruling setting aside the summonses (Jenkins v The Screening Authority No. 21457818). He did so despite having been served with copies of all the material on which the Screening Authority relied on at that time, and despite the clear and simple explanation of the nature of the proceeding he had received from Chief Judge Lowndes. The Application for Leave to Appeal was filed out of time.
On 18 April 2016 the respondent again failed to appear and the proceeding in the Local Court was dismissed.[67] On 22 April 2016 the respondent filed a further Application for Conviction or Order to be Set Aside and Re-Hearing (with an accompanying affidavit),[68] but did not serve the application until 9 September 2016.[69] The respondent’s explanation for his failure to attend to matters was that he been serving time in prison. On 19 September 2016 the respondent’s application was granted and the substantive proceeding was set down for hearing on 12 December 2016.[70]
On 21 November 2016 in the Supreme Court his Honour Grant CJ heard the respondent’s Application for Leave to Appeal against the order of the Local Court dismissing the respondent’s summonses.
[…]
This Court would ordinarily be slow to dismiss an appeal brought by an unrepresented litigant [as incompetent], and would only do so in exceptional circumstances. The circumstances in the present case are exceptional..., there is no real prospect that the [respondent] will be able to take the steps necessary in the prosecution of this appeal. He is, by his own admission, incapable of preparing the necessary appeal books. Past experience also demonstrates that he is incapable of producing anything in the nature of written or oral submissions that might in any way assist in the prosecution of his appeal, or that might be rational and comprehensible.
That situation might be capable of amelioration if the [respondent] was to secure professional and qualified legal representation. Unfortunately, that is not possible… [the respondent] would not have availed himself of that assistance even if legal aid had been forthcoming (or if pro bono assistance was offered). The reasons he gives for that position are that he is better equipped than a legal practitioner to run this proceeding (and the related appeals) due to his intimate knowledge of the surrounding circumstances; and the various legal practitioners with whom he has discussed these proceedings are not prepared to conduct the proceedings in the manner he requires.
[236]I find that proceeding AP 7 of 2016 (21425645) was instituted without reasonable ground and was conducted in such a way as to annoy and cause delay.
[237]On 27 May 2016 the respondent instituted an appeal against his conviction for contempt by her Honour Kelly J by filing a Notice of Appeal in proceeding AP 8 of 2016 (21425645).[166] The Notice of Appeal names “TODD” as the respondent. The grounds of appeal were contained in an attached handwritten document which pleaded the following.
Grounds against Kelly sentence
unable to Lodge appeal
no hearing no witnesses in sufficient time
hearing illegal unlawful
inadequate heard ex parte request rehearing
standing accepted appeal ignored
placed in vulnerable witness box
denies natural justice
humiliates demeans
(indecipherable) stop appeals
[238]The order sought by the respondent in the Notice of Appeal was pleaded as follows.
Struck out
falsely brought
(indecipherable) constructed
illegal practices
deny natural justice
[239]On 20 July 2017 his Honour Grant CJ published his Reasons for Judgment in Jenkins v Registrar of the Supreme Court (No. 2) [2017] NTCA 5 and dismissed the respondent’s appeal in proceeding AP 8 of 2016 (212425645) for want of prosecution. His Honour also found that the Notice of Appeal was grossly defective and might properly be characterised as incompetent. During the course of the proceeding the respondent failed to comply with orders made by the Master to file a corrected copy of the settled appeal index, to file three copies of the Appeal Books, to serve one copy of the Appeal Book on the Registrar of the Supreme Court, to file a list of authorities, to file written submissions, and to file a set of legible and comprehensible court documents.
[240]I find that the respondent instituted proceeding AP 8 of 2016 (212425645) without reasonable ground and conducted the proceeding so as to cause delay.
[241]On 15 March 2017 her Honour Kelly J heard an application that the respondent be dealt with for breach of the conditions of the suspended sentence of imprisonment that her Honour imposed on him for contempt of court on 11 May 2016.[167] The alleged breaches were that on 21 October 2016 during the hearing of the prosecution of the respondent in Police v Jenkins (21556341) before Judge Smith in the Local Court the respondent: (i) engaged in conduct that was intended to disrupt proceedings or which had the effect of disrupting proceedings; and (ii) did not comply with the directions of the Judge.
[242]At the start of the hearing before her Honour Kelly J the respondent made two interlocutory applications. The first application was that her Honour recuse herself from hearing the breach application for apprehended bias. The second application was an application that the breach proceedings be stayed.
[243]The main grounds of the respondent’s application for her Honour Kelly J to recuse herself for apprehended bias were her Honour: (i) was the judge who found the respondent guilty of contempt and imposed the suspended sentence; (ii) dismissed a bail application in 2010 or 2011 without letting the respondent out of the dock; and (iii) in the contempt proceeding did not give him an opportunity to make submissions on sentencing. There were other allegations made by the respondent which were utterly fanciful and don’t bear consideration. For example, the respondent stated that he “feels Kelly J has a bias towards him because of previous cases.”
[244]Ground (i) is clearly not a basis which gives rise to an apprehension of bias. It was pursued without reasonable ground. It is the practice of the Supreme Court for the sentencing Judge to hear breach applications. The issues on the breach application were different from those on the substantive trial and there was no question of prejudging those issues.
[245]The factual circumstances in relation to ground (ii) were as follows. There were two bail applications made by the respondent before her Honour Kelly J. In her Reasons for Judgment in Jenkins v Todd [2017] NTSC 26 at [6] (a) her Honour Kelly J described what occurred during those applications as follows.
[…] When the case was finally called on, Mr Jenkins was standing in the dock. He refused to sit down or to wait his turn to speak while I asked the prosecutor whether the application [for bail] was opposed. He kept talking, continuously, in a loud and agitated voice. One of the things he said was, “I don’t even know why I’m here!” At that point I said words to the effect of, “You don’t know why you’re here? Mr Jenkins, this is your application. All right – application dismissed.”
Not long afterwards (on a different date) Mr Jenkins again came before me seeking bail. This time he was calm and behaving appropriately. I made sure he had a copy of the Bail Act 1982 (NT) and asked him to explain why he should get bail by reference to the criteria set out in s 24. He did so; we went through the relevant considerations one by one; and I granted Mr Jenkins bail.
[246]As her Honour Kelly J correctly found, ground (ii) of the respondent’s application did not give rise to an apprehension of bias. I find that it was pursued without reasonable ground, to harass and annoy and cause delay and detriment.
[247]As to the respondent’s submissions on sentence in the contempt proceedings, ground (iii), her Honour Kelly J stated the following.
I have checked the relevant transcripts and what actually happened is this. Mr Jenkins did not appear in Court when I handed down the decision finding him guilty of contempt and I issued a warrant for his arrest. He was arrested on the weekend and brought into court on Monday 9 May 2016. He threw a tantrum in the cells and took his clothes off. (He then put them back on.) I arranged for an audio visual link into the cells. I then invited Mr Jenkins to make submissions on sentencing. He responded by screaming and yelling. I asked if he agreed to the provision of a previously ordered psychological report to Mr McDonald. Mr Jenkins responded (in part) “… I would like to see my solicitor. I (inaudible) report. You’re not providing (inaudible) justice. Leave me the fuck alone (inaudible)”. I took this as an application for an adjournment to seek legal advice. I adjourned and legal aid was contacted. When Court resumed at 2.00 pm, a legal aid lawyer appeared and advised that Mr Jenkins wished to continue representing himself. I again asked Mr Jenkins whether he consented to my providing a copy of the psychological report to Mr McDonald. Mr Jenkins said that he would need to read it first and that he had not committed any contempt. I adjourned again so Mr Jenkins could be given a copy of the report. During the adjournment, security guards tried to give Mr Jenkins a copy of the report but he refused to accept it. When court resumed Mr McDonald made submissions on sentencing. I again invited Mr Jenkins to make submissions on sentencing. He said he had to bend over to a grate to talk into the microphone. I said that if he undertook to behave I would have him taken to the vulnerable witness room where he could make his submissions in more comfort. Mr Jenkins said, “That’s fine. Yeah.” I adjourned again, Mr Jenkins was taken to the vulnerable witness room and he made submissions to the effect that a community service order would be appropriate. He applied for and was granted bail to get an assessment for suitability for a community work order. The matter was adjourned to the next day at 1.30 pm for sentencing. (It was during sentencing the next day and not as I had originally recalled during sentencing submissions that Mr Jenkins took his clothes off. He insisted on talking and shouting while I was sentencing him so I turned off the microphone in the vulnerable witness room and he responded by taking off his clothes.)
[248]Ground (iii) involved a false allegation and was pursued without reasonable ground.
[249]The main grounds of the respondent’s application for a stay were: (i) the application for breach of the conditions of the suspended sentence were filed out of time and should have been filed within three months of the alleged breaches; (ii) the prosecutor in Police v Jenkins (21556341) could not be a witness in the breach proceeding; and (iii) the prosecutor had an ulterior motive for bringing the breach proceeding, namely she wanted to stop him from “winning” in the Local Court proceeding in which the respondent was being prosecuted for the offences involving Father Roy O’Neill. There were a number of other grounds relied on by the respondent which do not bear consideration.
[250]Ground (i) was pursued without reasonable ground. The application for breach of the suspended sentence imposed on the respondent for contempt was made on 5 December 2016 which was within 21 days of the alleged breaches and there is no time limit for instituting proceedings for breach of a condition of a suspended sentence under s 43(2) of the Sentencing Act 1995 (NT).
[251]Ground (ii) was pursued without reasonable ground. There is no basis in law for such a contention.
Ground (iii) was pursued without reasonable ground. The application for breach was brought by the Registrar of the Supreme Court not the prosecutor and the application for breach was conducted by Mr McDonald not Ms Lau. Further, as her Honour Kelly J found,[168] there was not the slightest basis in evidence for such a contention.
[253]Her Honour’s Reasons for Judgment were delivered on 3 April 2017.[169] Her Honour refused both applications. In my opinion, she was correct in doing so. Both applications were instituted without reasonable ground and to harass and cause delay and detriment.
[254]On 5 September 2017 the respondent left at the Registry of the Supreme Court handwritten documents which purported to be applications for leave to appeal the decisions of the Court in proceedings AP 5 of 2016 (21425645), AP 7 of 2016 (21425645), and AP 8 of 2016 (21425645). The documents were not accepted by the Registry because they did not comply with the Supreme Court Rules and were largely incoherent. On the same day Mr Nelson Cu wrote to Mr Jenkins and returned the documents to him.
[255]I am satisfied of the following.
1)The Justices Appeal before his Honour Barr J was deliberately conducted by the respondent so as to harass, annoy and cause delay.
2)The further appeal to the Court of Appeal was instituted without reasonable ground.
3)The appeal concerning the preliminary issue of whether the Supreme Court had jurisdiction to hear contempt proceedings after the substantive appeal (in which the contempt was committed) had concluded was instituted without reasonable ground.
4)The substantive appeal against the finding of guilt of contempt in the face of the court was also instituted without reasonable ground.
5)The two interlocutory applications which were heard at the start of the hearing of the breach proceeding were instituted without reasonable ground and were an abuse of process.
6)The purported filing of the three further Applications for Leave to Appeal each constituted the respondent instituting proceedings without reasonable ground.
[256]Each of these proceedings were vexatious proceedings.
Conclusion
[257]The proceedings instituted by the respondent and considered at [70] to [256] above show a lengthy, entrenched and enduring pattern of vexatious behaviour on the part of the respondent. The pattern is comprised of the following elements.
[258]First, if the respondent perceives that he has been slighted or wronged by somebody he will institute legal proceedings, including criminal proceedings, against those involved. He does so with the knowledge that he does not have a valid cause of action against the persons named as defendants in civil proceedings; and with knowledge that the persons he has named as defendants in the criminal proceedings he has instituted have not committed the criminal offences alleged against them. Each proceeding instituted by the respondent is simply used as a vehicle to air and agitate a litany of spurious complaints made by the respondent. It may be said that the respondent is motivated by a bizarre and querulous quest for a personal vision of justice to which all else is subordinated.[170] In the civil jurisdiction this is demonstrated by the respondent’s conduct in instituting the proceeding in the Local Court in Jenkins v The Screening Authority (2145137) and by the civil proceedings he instituted in the course of the Library proceedings. In the criminal jurisdiction it is demonstrated by all of the private prosecutions the respondent instituted falsely charging the defendants with criminal offences. In the appellate jurisdiction it is demonstrated by all of the appeals he instituted. That the respondent may see himself on a quest is supported by the evidence the respondent attempted to lead from Father Dan Bernedetti about the respondent’s prophetic nature at [63] above, and the respondent’s evidence in chief at [61] above.
[259]The respondent commenced all of the proceedings he instituted for a wrongful purpose, namely to punish and scandalise those who he feels have slighted or wronged him or interfered with or opposed his “artistic” or other endeavours. This purpose is confirmed by the form and contents of the documents the respondent filed in the Supreme Court and Local Court registries and the utter disrespect the respondent shows for the courts from whom he purports to seek assistance.
[260]Second, the respondent conducts the proceedings he has instituted in such a way so as to harass, delay and cause maximum inconvenience, cost and detriment to those involved in the proceeding. During the course of the hearings of the proceedings he has instituted the respondent has filed soiled, indecipherable and incoherent documents, failed to file documents on time or at all, taken meaningless and groundless interlocutory and procedural points, deliberately shouted at and spoken over the judicial officers, accused judicial officers of telling lies and of being corrupt, deliberately refused to comply with the directions of the judicial officers, attempted to threaten judicial officers by asserting he will be appealing their decisions, accused counsel for the other party of being corrupt, interrupted and spoken over counsel appearing for the other party, interrupted and spoken over witnesses, walked out of the courtroom when it suited him, persisted in interrupting the proceedings to such an extent that he has had to be physically removed from the courtroom, made untruthful statements from the bar table, been unreliable and selective in his submissions, and engaged in vituperative outbursts when questions were asked of him which exposed flaws in his arguments, instituted groundless appeals in relation to interlocutory orders and decisions before the substantive proceedings had concluded, and failed to prosecute the appeals he instituted.
[261]In addition, the respondent has displayed a serial disregard for court orders and schedules. He has repeatedly and deliberately made spurious applications which are instituted as a tactic to frustrate and delay the conduct of proceedings. He is evasive and dissembling during such applications. He has deliberately failed to appear in court on listing and hearing dates resulting in the proceeding being dismissed and the respondent instituting numerous applications to set aside the order and reinstate the proceedings (often filing such applications the same day as the original listing). As a result of his conduct before the courts, the respondent has been convicted of contempt in the face of the court on two occasions and of breaching the conditions of a suspended sentence of imprisonment for contempt. Spending significant time in prison for contempt of court has not changed the respondent’s behaviour. Immediately upon release from prison he has continued to behave in the same vexatious manner. At no stage during any proceeding has the respondent genuinely attempted to grapple with the merits of the proceeding.
[262]Third, the respondent has a propensity to appeal decisions as a matter of course. If a judicial officer endeavours to conduct a proceeding in such a way as to bring the proceeding to a resolution, or stop the respondent from pursuing groundless and irrelevant points and conducting himself in the appalling manner he chooses to conduct himself, or finds against him, the respondent will institute appeals and related applications of various kinds for the purpose of harassing, scandalising and abusing the judicial process. He does so knowing full well that he is behaving in a most unreasonable manner and that the applications and appeals that he has instituted have been instituted without reasonable ground. The appeal documents he deposits at the Registries are invariably largely incoherent and indecipherable, often soiled, and plead no recognisable grounds of appeal. They also frequently contain scandalous and untruthful allegations against the judicial officers whose decisions are subject to the appeal or against opposing counsel and defendants.
[263]Even in this proceeding, the respondent obdurately persisted with his vexatious behaviour. Despite being extended considerable leniency and assistance by the Court and both counsel for the applicant, he conducted his defence in the same manner that he has conducted himself throughout all of the other proceedings. During the course of the hearing the respondent deliberately failed to comply with my directions, shouted over the top of me and opposing counsel, interrupted me and opposing counsel, arrived late from time to time, walked out of the court when it suited him, had to be physically removed from the court when he persisted in interrupting counsel for the applicant during their submissions, applied to cross-examine people who were not called as witnesses by the applicant and had not made any affidavits that were tendered in evidence, claimed not to have been provided with material when he had been provided with a number of copies of all of the materials, accused myself and counsel of corruption, hurled racial abuse at court security staff and sexist, islamophobic abuse at a graduate clerk with the Solicitor for the Northern Territory and tossed a book across the Bar table and broke Ms Brebner’s glasses.
[264]The respondent told the following lies during the proceeding.
1)On the first day of the hearing he stated “I have been granted legal aid”. He had not been granted legal aid.
2)On 14 May 2018 he indicated he had not been advised of the outcome of his Pro Bono Clearing House application. He had been advised that his application had been rejected.
3)The respondent claimed that he had succeeded in the case of Jenkins v Screening Authority. He did not succeed, as set out above.
4)By way of explanation for failing to provide typed submissions, the respondent stated he did not use computers for moral and health reasons. Yet he continued to frequently send frivolous emails to the Court.
5)The respondent claimed that the applicant had intentionally provided him with a version of documents which were different to the versions before the Court, in order to make him “look like a complete idiot” when he referred to them. He complained that “this happens over and over again.”[171] The respondent was served several times with all of the documents relied on by the applicant.
6)The respondent stated that the only reason that he had not prosecuted the private prosecutions which were dismissed in his absence on 16 January 2018 was that he could not deal with them when/while he was in prison. In fact, he dealt with them when he was out of prison.
7)The respondent claimed that he needed an adjournment because his mother had died, but was evasive and dissembling when questioned. The respondent had previously made the same application before Barr J and eventually confirmed “as far as I know she’s still alive.”
8)The respondent repeatedly made spurious allegations of corruption against most of the people involved in the proceedings, and many people who were entirely unconnected.
[265]The respondent’s conduct has taken up an enormous amount of this Court’s and the Local Court’s time with what has been proven to be meritless and scurrilous nonsense. His conduct in frequently instituting vexatious proceedings has imposed a considerable burden on the other parties to the proceedings, Judges of both the Supreme Court and the Local Court, the staff in the Supreme Court and Local Court Registries, the legal practitioners representing the other parties to the proceedings, and security staff. Defending the baseless criminal charges the respondent laid against court staff and others has had a detrimental impact on those he chose to pursue.
[266]The disproportionate amount time and other resources expended on the respondent has delayed the functioning of the courts and the administration of justice. His conduct has also been of considerable cost to the community. For example, as I have stated, Jenkins v McGregor was heard 19 times in the Local Court and on each occasion Mr McGregor was represented by a legal practitioner from the Solicitor for the Northern Territory. In addition, hearings which should have been concluded in a day have taken days to complete.
[267]For the above reasons I held that the respondent had frequently instituted and conducted vexatious proceedings. The respondent’s conduct in instituting and conducting proceedings has been found to be calculated to “shake the confidence of litigants and the public in the decisions of the Court and weaken the spirit of obedience to the law.”[172] Everyone who appears before the courts in the Territory is to be treated equally. The respondent is no exception. He is not an exceptional person. He is a person with a personality disorder who deliberately and of his own choosing made a very serious nuisance of himself for far too long. The proper administration of justice requires the respondent to seek appropriate leave before instituting proceedings in this Court and the Local Court. If such an order was not made it was almost certain that the respondent’s vexatious conduct would have continued.
--------------------------------
[1] The Registrar of the Supreme Court is an authorised applicant under Vexatious Proceedings Act 2006, s 7(6)(c).
[2] Northern Territory, Parliamentary Debates, Legislative Assembly 15 June 2008 (The Hon Peter Toyne, Attorney General).
[3]Vexatious Proceedings Act 2005 (Qld); Vexatious Proceedings Act 2008 (NSW); Vexatious Proceedings Act 2011 (Tas); cf Vexatious Proceedings Act 2014 (Vic), Vexatious Proceedings Registration Act 2002 (WA), Federal Court of Australia Act 1976 (Cth). Subsection 7(3) of the Act is identical to: Federal Court of Australia Act 1976 (Cth), s 37AO(1); Vexatious Proceedings Act 2008 (NSW), s 8(1); Vexatious Proceedings Act 2011 (Tas), s 6(1); and Vexatious Proceedings Act 2005 (Qld), s 6(1).
[4] See, e.g. Supreme Court Rules, rr 23.01, 23.02.
[5] Vexatious Proceedings Act 2006 (NT), s 6.
[6] Ibid, s 7(3).
[7] Ibid, ss 7(4), 10(1).
[8]Conomy v Maden [2019] HCA Trans 49 (20 March 2019).
[9] Attorney General (NSW) v Wilson [2010] NSWSC 1008 at [11].
[10] Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3], cited with approval in Attorney General v Gargan [2010] NSWSC 1192 at [8].
[11] Vexatious Proceeding Act, s 7(1)(a); Mathews v State of Queensland [2015] FCA 1488 at [81]. Subsection 7(1)(b) of the Act has no application here.
[12]Vexatious Proceedings Act, s 2.
[13] Attorney General (NSW) v Chan [2011] NSWSC 1315 at [33].
[14] Ibid at [33].
[15] Ibid, ss 2, 3.
[16] Ibid, s 3(b).
[17] Ibid, s 4.
[18] Ibid, s 4(1)(c).
[19] Ibid, s 4(1)(a).
[20] Ibid, s 4(1)(d).
[21] [2014] FCA 449.
[22] [2014] FCA 449 at [103].
[23] Vexatious Proceedings Act 2006 (NT), s 2(d).
[24] Mahmoud v Attorney-General of New South Wales [2017] NSWCA 12 at [32]; Viavattene v Attorney-General (NSW) [2015] NSWCA 44 at [26] and [78].
[25] Vexatious Proceeding Act, s 7(2).
[26] HWY Rent Pty Ltd v HWY Rentals (in liq) (No. 2) [2014] FCA 449 at [112]; Attorney General (NSW) v Gargan [2010] NSWSC 1192 at [7]; Attorney General (NSW) v Wilson [2010] NSWSC 1008 at [12]; Jones v Cusack (1992) 109 ALR 313.
[27] HWY Rent Pty Ltd v HWY Rentals (in liq) (No. 2) [2014] FCA 449 at [111].
[28] HWY Rent Pty Ltd v HWY Rentals (in liq) (No. 2) [2014] FCA 449 at [112]; Fuller v Toms [2013] FCA 1422 at [77]; Conomy v Maden [2019] HCA Trans 49 (20 March 2019).
[29] “Ochre Card” is the common name for a clearance notice for working with children issued under s 189 of the Care and Protection of Children Act 2007 (NT).
[30] Attorney-General (Vic) v Horvath, Senior [2001] VSC 269 at [28]. See also Attorney-General (Vic) v Knight [2014] VSC 549 at [39]–[40]; Attorney-General (Vic) v Pham [2014] VSC 311 at [18]; Slaveski v Attorney-General (Vic) [2013] VSCA 165 at [14], [27]; Attorney-General (Vic) v Bahonko [2011] VSC 352 at [80]; Attorney-General (Vic) v Shaw [2007] VSC 148 at [5].
[31] [2015] NSWSC 1372 at [132].
[32] Ibid.
[33] Ibid at [20].
[34] Ibid at [37]–[39]; see also [65]–[67].
[35] [2016] NSWSC 1823.
[36] Ibid at [25]–[26], [30]–[32].
[37] (2017) 51 VR 777.
[38] (2017) 51 VR 777 at 785–7 [22]–[27].
[39] Mirko Bagaric, Ross on Crime (Lawbook Co, 8th ed. 2018) at 562–3 [4.3020].
[40](1993) 46 FCR 521 (Foster J); and (1993) 46 FCR 557 (Full Court of the Federal Court).
[41] [1993] HCA 70; 68 ALJR 173.
[42] Jarrett v Seymour (1993) 46 FCR 521.
[43] Jarrett v Seymour (1993) 46 FCR 557.
[44] Elliott v Seymour [1993] HCA 70; 68 ALJR 173.
[45] [2011] NSWSC 1315 at [3] to [18].
[46]The respondent’s statement that Kelly J told him to shut up is a false statement. This allegation is dealt with by her Honour in Jenkins v Todd [2017] NTSC 26 at [6]c.
[47] Darwin City Council v Jenkins (21615529); Whittington v Jenkins (21617016); Firth v Jenkins (21556341).
[48] Jenkins v Screening Authority [2016] NTSC 64; Jenkins v Screening Authority (21451437); Jenkins v Screening Authority (21457818); Jenkins v Screening Authority LCA 3 of 2016 (21457818); Jenkins v Commissioner of Police (no file number assigned).
[49] Jenkins v Screening Authority [2016] NTSC 64.
[50] Care and Protection of Children Act, s 187.
[51] Ibid s 189.
[52] Ibid.
[53] Ibid, s 194(7); Jenkins v Screening Authority [2016] NTSC 64 at [10] and [15].
[54] Affidavit of Demetrious Laouris made 25 September 2017 at [10], 1–2 (“DL 1”).
[55] Affidavit of Demetrious Laouris made 25 September 2017 at 1–2 (“DL 1”).
[56] Affidavit of Demetrious Laouris made 25 September 2017 at [11].
[57] Affidavit of Demetrious Laouris made 25 September 2017 at [12], 1–2 (“DL 1”).
[58] Affidavit of Demetrious Laouris made 25 September 2017 at [14], 3–4 (“DL 2”). The applicant’s submissions at p 18.5 appear to misstate the date of the Directions Hearing and the date on which the order was made, though nothing turns on this.
[59] Affidavit of Demetrious Laouris made 25 September 2017 at [15], 6–11 (“DL 3”).
[60] Affidavit of Demetrious Laouris made 25 September 2017 at [15], 12–13 (“DL 4”).
[61] Affidavit of Demetrious Laouris made 25 September 2017 at [16], 14–31 (“DL 5”).
[62] Jenkins v Screening Authority [2016] NTSC 64 at [19].
[63] Jenkins v Screening Authority [2016] NTSC 64 at [21] and [22].
[64] Jenkins v Screening Authority [2016] NTSC 64 at [23].
[65] Affidavit of Demetrious Laouris made 25 September 2017 at [17], 32–33 (“DL 6”); Affidavit of Lachlan Sebastian Peattie made 22 September 2017 at 662 (“LSP 13”).
[66] Jenkins v Screening Authority [2017] NTSC 64 at [19].
[67] Affidavit of Demetrious Laouris made 25 September 2017 at [20], 34–5 (“DL 7”).
[68] Affidavit of Demetrious Laouris made 25 September 2017 at [21], 36–42 (“DL 8”).
[69] Affidavit of Demetrious Laouris made 25 September 2017 at [21], 43–4 (“DL 9”).
[70] Affidavit of Demetrious Laouris made 25 September 2017 at [21].
[71] Affidavit of Demetrious Laouris made 25 September 2017 at [22], 45–51 (“DL 10”).
[72] [2016] NTSC 64.
[73] Vexatious Proceedings Act 2007, s 3(c).
[74] Ibid, s 3(b).
[75] Jenkins v Screening Authority [2016] NTSC 64, [10] and [15].
[76] Affidavit of Demetrious Laouris made 25 September 2017 at [24], 63–5 (“DL 13”).
[77] Affidavit of Demetrious Laouris made 25 September 2017 at [25].
[78] Affidavit of Demetrious Laouris made 25 September 2017 at [25]–[26].
[79] Affidavit of Demetrious Laouris made 25 September 2017 at [27]–[28], 67–8 (“DL 14”), 69–73 (“DL 15”). The applications each contain a further application for Judge Neill to recuse himself, which is not relied on by the applicant.
[80] Affidavit of Demetrious Laouris made 25 September 2017 at [31], 80–6 (“DL 19”).
[81] Affidavit of Demetrious Laouris made 25 September 2017, 81 (“DL 19”).
[82] Affidavit of Demetrious Laouris made 25 September 2017 at 82–4 (“DL 19”).
[83] Affidavit of Demetrious Laouris made 25 September 2017 at [31], 87–8 (“DL 20”).
[84] Affidavit of Demetrious Laouris made 25 September 2017 at [32], 89– 92 (“DL 21”).
[85] Affidavit of Demetrious Laouris made 25 September 2017 at [32], 93–94 (“DL 22”).
[86] Affidavit of Demetrious Laouris made 25 September 2017 at [35]–[36], 100–4 (“DL 24”), 105–6 (“DL 25”).
[87]Darwin City Council v Jenkins (21615529); Jenkins v City of Darwin [2017] NTSC 58 LCA 18 of 2016 (21615229).
[88] Affidavit of Demetrious Laouris made 25 September 2017 at [38] (“DL 26”). Contrary to Darwin City Council By-laws (NT) by-law 20 and by-law 47(2)(c), such conduct constituting an offence per by-law 30(1).
[89] Affidavit of Demetrious Laouris made 25 September 2017 at [39] (“DL 27”).
[90] Affidavit of Demetrious Laouris made 25 September 2017 at [39]; Jenkins v City of Darwin [2017] NTSC 58 at [2].
[91] Jenkins v The City of Darwin [2017] NTSC 58 at [7].
[92] Ibid at [9].
[93] Jenkins v City of Darwin [2017] NTSC 58.
[94] Ibid at [15] – [16].
[95] Jenkins v City of Darwin [2017] NTSC 58.
[96] Ibid at [31], [35].
[97] Ibid at [36].
[98] Affidavit of Tracey Jane Holmes 176–8 (“TJH 11”). See also Jenkins v City of Darwin [2017] NTSC 58 at [19].
[99] Jenkins v City of Darwin [2017] NTSC 58 at [36].
[100] Ibid at [27]–[34].
[101] Whittington v Jenkins (21617016); Jenkins v Whittington [2017] NTSC 65 LCA 20 of 2017 (21617016); Jenkins v Whittington LCA 20 of 2017 (21617016) – Application for Leave to Appeal.
[102][2016] NTSC 21.
[103] [2017] NTSC 65 at [111] to [115].
[104] [2017] NTSC 65 at [20].
[105] [2017] NTSC 65 at [15] – [29].
[106] Jenkins v Whittington [2017] NTSC 65 at [9].
[107] [2017] NTSC 65.
[108] Affidavit of Demetrious Laouris at [48], [51]; Jenkins v Whittington [2017] NTSC 65 at [1], [2], [11].
[109] [2017] NTSC 65.
[110] Ibid at [13].
[111]Jenkins v Whittington [2017] NTSC 65 at [140] – [144].
[112] Jenkins v Whittington [2017] NTSC 65.
[113] Ibid at [15] – [29].
[114]Jenkins v Whittington [2017] NTSC 65 at [67].
[115]Ibid at [78], [86], [88], [92], [93], [94], [99] – [102].
[116]Ibid at [78].
[117]Ibid at [86].
[118]Ibid at [88].
[119] Ibid at [90].
[120] Ibid at [92].
[121] Ibid at [92] – [93]
[122] Ibid at [94].
[123] Ibid at [99] – [102].
[124] Hanks v the Queen [2011] VSCA 7 per Bongiorno JA at [22].
[125] Jenkins v Whittington [2017] NTSC 65 at [110], [153], [158], [159], [169].
[126] LCA 27 of 2016 (21618385) (unreported Supreme Court Northern Territory 16 December 2016).
[127]Affidavit of Lachlan Sebastian Peattie made 22 September 2017 at 717 (“LSP 15”).
[128] Affidavit of Demetrious Laouris at [60], 166–7 (“DL 39”).
[129] Affidavit of Demetrious Laouris at [61], 168–170 (“DL 40”).
[130] Supplementary Affidavit of Tracey Jane Holmes made 22 September 2017 at [11](a)(v), 1–3 (“TJH 1”).
[131] Jenkins v Department of the Attorney-General and Justice 119 of 2016 (21653047); Jenkins v Department of the Attorney-General and Justice AP 13 of 2016 (21653047); Jenkins v Department of the Attorney-General and Justice AP 13 of 2016 (21653047) – leave to appeal; Trevor Jenkins v Attorney-General (21712124)
[132]Affidavit of Tracey Jane Holmes made 03 August 2017 at [22], 223–33 (“TJH 17”).
[133] Affidavit of Tracey Jane Holmes made 03 August 2017 at 223–33 (“TJH 17”).
[134] Affidavit of Tracey Jane Holmes made 03 August 2017 at [23], 234–5 (“TJH 18”).
[135] Affidavit of Tracey Jane Holmes made 03 August 2017 at [24], 236–43 (“TJH 19”).
[136] Affidavit of Tracey Jane Holmes made 03 August 2017 at [24], 237 (“TJH 19”). The Originating Motion is similarly defective.
[137] Jenkins v Department of the Attorney-General and Justice [2017] NTCA 3 at [2].
[138]Ibid at [9].
[139] Ibid at [9] and [11].
[140]Jenkins v Department of the Attorney-General and Justice [2017] NTCA 3 at [12].
[141] Supplementary Affidavit of Tracey Jane Holmes made 22 September 2017 at [11], 1–3 (“TJH 1”).
[142]Affidavit of Demetrious Laouris made 25 September 2017 at [68], 177–8 “DL 43”.
[143] The issue of access was also considered by Kelly J in Jenkins v Todd [2017] NTSC 26.
[144] Affidavit of Demetrious Laouris made 25 September 2017 at [72].
[145] Affidavit of Demetrious Laouris made 25 September 2017 at [71], 186–9 “DL 46”.
[146] This Application is not detailed in or annexed to any of the affidavits filed. It is listed in the aide memoir handed up by counsel for the applicant, ‘List of proceedings’, item 27 (substantive). A copy was of the Application was received as exhibit A1.
[147] Supplementary Affidavit of Tracey Jane Holmes made 29 January 2018 at [13].
[148] Supplementary Affidavit of Tracey Jane Holmes made 29 January 2018 at [12].
[149] Contrary to s 7(1) of the Trespass Act 1987 (NT).
[150] Contrary to s 188A(1) and (2)(b) of the Criminal Code 1983 (NT).
[151] Contrary to s 158 of the Police Administration Act 1978 (NT).
[152] Affidavit of Tracey Holmes made 3 August 2017 at [6], 1–6 (“TJH 1”).
[153] Jenkins v Todd [2016] NTSC 4 at [5], [7].
[154] Jenkins v Todd [2016] NTSC 21 at [61], [66].
[155] Affidavit of Tracey Jane Holmes, 66–82 (“TJH 3”).
[156] Jenkins v Todd [2017] NTCA 6 at [1], [2], [19].
[157] Jenkins v Todd [2017] NTCA 6 at [19] and [25].
[158] Jenkins v Todd [2017] NTCA 6 at [21].
[159] See also the conduct set out in Jenkins v Registrar of the Supreme Court (No. 2) [2017] NTCA 5 at [17]-[20].
[160] Jenkins v Todd [2017] NTCA 6 at [15].
[161] Ibid at [16].
[162]Ibid at [18].
[163] Affidavit of Tracey Holmes made 3 August 2017 at [12], 135–138 (“TJH 7”).
[164] Jenkins v Registrar of the Supreme Court [2017] NTCA 4 at [25].
[165] Ibid at [20], [23]–[24].
[166] Affidavit of Tracey Jane Holmes at [14], 155–161 (“TJH 9”).
[167] Jenkins v Todd [2017] NTSC 26.
[168] Jenkins v Todd [2017] NTSC 26 at [31].
[169] Jenkins v Todd [2017] NTSC 26.
[170] Paul Mullen and Grant Lester, ‘Vexatious Litigants and Unusually Persistent Complainants and Petitioners: From Querulous Paranoia to Querulous Behaviour’ (2006) 24 Behavioural Sciences and the Law 333 at 338.
[171] Transcript of Proceedings, 16 July 2018, T39.
[172] Jenkins v Todd [2016] NTSC 21 at [37].
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