The Proprietors - Units Plan No 52 v Gold, Isobel Patricia

[1998] FCA 118

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG71  of   1997

BETWEEN:	THE PROPRIETORS, UNITS PLAN NO. 52 APPLICANT
AND:	PATRICIA ISOBEL GOLD (A Bankrupt) RESPONDENT
JUDGE:		FINN J
DATE OF ORDER:		5 FEBRUARY 1998
WHERE MADE:		CANBERRA

THE COURT ORDERS THAT:

1.The respondent shall not, without the leave of the Court, institute any proceeding against the applicant;  and

2.        The respondent pay the applicant’s costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG71 of 1997

BETWEEN:	THE PROPRIETORS, UNITS PLAN NO. 52 APPLICANT
AND:	PATRICIA ISOBEL GOLD (A Bankrupt) RESPONDENT

JUDGE:	FINN J
DATE:	5 FEBRUARY 1998
PLACE:	CANBERRA

REASONS FOR JUDGMENT

This application is as unfortunate as it is necessary.  The applicant, The Proprietors - Units Plan No 52, seeks an order under O 21 r 2 of the Federal Court rules against Patricia Isobel Gold (“Mrs Gold”).  That rule provides that:

“2       Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable ground institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the court before the making of the order shall not be continued by him without leave of the Court.”

I note that the Federal Court of Australia Act, 1976, s4 defines “proceeding” to mean -

“a proceeding in a court ... and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.”

The circumstances which generated the controversy between the parties that has led to this application have been outlined in some number of judgments both of this Court and of the Supreme Court of the Australian Capital Territory.  I merely refer for convenience - and incorporate by reference - the chronology set out in my reasons for judgment in Re Gold;  Ex parte Gold AB 158 of 1993, 29 February 1996;  see also Gold v the Proprietors - Units Plan No 52, A 54 of 1997 Full Court of the Federal Court 24 October 1997.

There has been extensive litigation between the parties.  I need not recount it here other than to say that it originated in Mrs Gold’s non-payment of unit title levy contributions;  it has stretched over more than a decade;  it has involved quite some number of appeals to the Full Court of this Court and special leave applications to the High Court (almost all of both being instigated by Mrs Gold);  and, since 21 June 1993 when a sequestration order was made against Mrs Gold on the petition of the present applicant, it has been channelled through a variety of proceedings under the Bankruptcy Act 1966. I should add that the debt founding the creditor’s petition related to unpaid unit title levies plus interest.

Whatever the justification (i) for Mrs Gold’s resistance to the initial litigation instituted by the applicant in respect of unpaid levies and, subsequently, the separate debt claimed by it under s 48 of the Unit Titles Act 1970 (ACT) for its legal costs incurred in 1987 proceedings against her for unpaid levies; and (ii) for her testing, in appeals, decisions adverse to her - the point was reached, if not when the sequestration was made, then at least by 1996, when Mrs Gold (a) could properly be said to have had every opportunity both to have had tested her real complaints against the applicant (these have shifted with time) and (b) could properly be expected to accept the consequences of successive adverse determinations against her. This she has been unable to do.

Rather than catalogue individually the objections which can be taken to the various proceedings conducted by Mrs Gold, it is in my view sufficient here simply to note recurring judicial commentary made in this Court on proceedings initiated by Mrs Gold from 1996 to date - proceedings all of which betray her unpreparedness to accept findings adverse to her.

In AB 158 of 1993 in which she unsuccessfully sought an order under s 153B of the Bankruptcy Act 1966 annulling her bankruptcy, I commented in my reasons of 29 February 1996 that:

“her perseverance in defending the various proceedings brought against her has ... been the result of considerable misapprehension on her part of what she could achieve through such defence.  She has, in the main, acted without legal advice or representation.”

In her unsuccessful appeal from the above judgment the Full Court in reasons of 24 June 1996 noted Mrs Gold’s refusal to accept earlier court rulings.  And it made the following comments:

1. It is obvious that Mrs Gold will not recognise any legal rights but her own imagined rights.  She does not recognise the legal injustice her unreasonable and intransigent attitude has caused to the other members of the body corporate.

1. In no legal system can every privately-held moral principle be vindicated;  and no legal system can accommodate those, like Mrs Gold, who simply will not accept, no matter how often courts tell them so, that their felt cause is without legal redress.

Undaunted by this, and relying upon what she now claims was new material revealed in my reasons for judgment of 29 February 1996, Mrs Gold applied under s 99(1) of the Bankruptcy Act 1996 to have the present applicant’s proof of debt expunged.  In dismissing this application on 27 June 1997 I observed:

“This court has spent an inordinate amount of time considering applications of Mrs Gold which are without merit.  This is one of the more obvious of these, the issues she agitates here as I have said, being ones considered in various ways in previous proceedings.

I do not consider that any useful purpose at all would be served in providing yet another account of the matters on which Mrs Gold relies in support of the application.  The application itself is vexatious.  It should be dismissed.”

The Full Court in dismissing Mrs Gold’s appeal from that judgment agreed with my description of the application in its reasons of 24 October 1997.  It commented, further, that:

“The application is vexatious as the issues canvassed by Mrs Gold in her supporting affidavits and arguments are, in substance, the very issues that have been considered in earlier cases and decided adversely to her.

In the hearing today, we have invited her on more than one occasion to indicate what new material was before Finn J.  She has failed, in our view, to indicate any.”

Mrs Gold has applied to the High Court for special leave from the Full Court’s decision.  On 6 November 1997 she unsuccessfully sought the further extension of an order in effect staying execution of writs of possession founded on orders I had made on 10 November 1995, pending her special leave application.  As best I understood her reasons for the application it was that the Full Court “had not seen the truth”.  She did later concede that her chances of obtaining special leave were “nil”.  In rejecting her application I made the following comments on what have been emerging over time as her aspiration in all of this matter.

“What it would appear is Mrs Gold’s real hope, and I use the word hope designedly, is that the courts will be able to conduct, by virtue of some form of inquisitorial process, an inquiry into the matter.  She is of the view that the courts simply have not seen the truth of it.  I have explained to her that the courts system of this country is not one in which inquiries of the form that she would like to see undertaken are performed.

She has, on many occasions, had the opportunity to bring the matter before the courts of this country and her only explanation for why that has not allowed the courts to see the truth ... is that both legislation and her own difficulties in presenting the material have got in the way.”

Again undaunted by my rejection of the “stay” of the writs, Mrs Gold instituted fresh proceedings seeking their stay until further order.  Justice Hill dismissed this application on 5 December 1997 noting in his reasons that:

“[Mrs Gold] has, I know, brought many proceedings and has been at least a party to many others, all in respect of the one matter in respect of which I think it is not unfair to say she has an obsession.  I asked Mrs Gold to indicate to me to what extent, if any, there had been a change in circumstances since the application she brought before Finn J.  Apart from referring me to her affidavit, she is unable to indicate what changes there have been and the reality of the matter is that there are none and it is hard to do otherwise than to conclude that the present application is, in truth, an abuse of process, an attempt to re-litigate that which has already been decided, perhaps with the hope that another judge might take a different view of the matter.”

This sequence of observations and comments tells its own story.  Insofar as concerns the proceedings from early 1996 onwards there is clearly revealed (a) a pattern of habitual and persistent applications (including appeals) by Mrs Gold;  (b) a steadfast refusal on her part to accept judgments adverse to her and, associatedly, repeated and colourable attempts to re-open issues that have been determined;  (c) the prosecution of applications and appeals that are manifestly untenable and in some instances involve demonstrable abuses of process.

Whatever Mrs Gold’s subjective intentions in instituting these proceedings - cf Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 - it is the case that, viewed objectively, they must now be characterised as vexatious. The applicant is being burdened indefensibly by Mrs Gold’s persisting in initiating quite hopeless proceedings. The applicant is entitled to protection from this conduct.

Mrs Gold’s principal basis for resisting the application is that she has the “new material” revealed in my reasons of 29 February 1996 and she wishes now “to go and go and go” until the truth is seen.  It must be said that she clearly does not understand the significance of my decision of that date or of the Full Court subsequent thereto.  Additionally, she would like the court to advise her how to go about realising her aims.  I have commented on her aspirations above and refrain from doing so further.

In my view the present course being taken by Mrs Gold cannot be allowed to continue without proper check.  It is wholly unreasonable to, and oppressive of, the applicant.  And it is vastly wasteful of public resources.  Accordingly I will make the order sought in the application.  In so doing I should emphasise that this will not totally deny Mrs Gold the opportunity to prosecute further proceedings against the applicant.  It will, though, require the leave of the Court so to do.  I should further indicate, lest there be any misunderstanding in the matter, my order does not in any way affect the special leave application to the High Court Mrs Gold is now prosecuting.

The orders of the Court are that:

1.The respondent shall not, without the leave of the Court, institute any proceeding against the applicant;  and

2.        The respondent pay the applicant’s costs of the application.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Associate:

Dated:            5 February 1998

Counsel for the Applicant:	M Flint
Solicitor for the Applicant:	Clayton Utz
Mrs Gold appeared in person
Date of Hearing:	3 February 1998
Date of Judgment:	5 February 1998