Valassis v McCabe - [1999] NSWCA 423

CITATION: Valassis v McCabe [1999] NSWCA 423

FILE NUMBER(S): CA 040821/97

HEARING DATE(S): 30 september 1999

JUDGMENT DATE:
30 September 1999

PARTIES :

Dennis Valasis
Colin James McCabe

JUDGMENT OF: Mason P at 4; Meagher JA at 1; Davies AJA at 5

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Newman J

COUNSEL: Dennis Valassis - litigant in person - appellant

SOLICITORS: Dennis Valassis - litigant in person
Mr Rosier - Rosier & Associates (respondant)

CATCHWORDS: appeal against being declared a vexatious litigant

DECISION: 1. Appeal allowed; 2. Order No 2 by Newman J be set aside.; 3. In lieu thereof that the defendaant shall not, without the leave of the Court, institute any proceedings in the Supreme Court of NSW or in the Local Court against the plaintiff, Mr McCabe.; 4.Order that no existing proceedings already instituted by the defendant without leave of the Court; 5. Orders 1 & 3 affirmed.; 6. No order as to costs.

- 1 -
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 040821/97
MASON P
MEAGHER JA
DAVIES AJA
THURSDAY 30 SEPTEMBER 1999

DENNIS VALASSIS v COLIN JAMES THOMAS McCABE

JUDGMENT

1   MEAGHER JA: There is an appeal by the defendant Mr Valassis pursuant to leave previously granted against a judgment of Mr Justice Newman declaring him a vexatious litigant. The sketch of Mr Valassis's extensive litigation is contained in his Honour's judgment. I shall not repeat it. Suffice it to say that there is every reason to justify his Honour's conclusion that the defendant has habitually, persistently and without any reasonable cause instituted vexatious legal proceedings against the plaintiff Mr McCabe, the present respondent, in the Local Court, Supreme Court, Federal Court and the High Court. He has already been declared a vexatious litigant in the Land and Environment Court. 2   His Honour intended to make an order under section 84 (2) in favour of the plaintiff. In fact presumably by inadvertence he made an order in favour of the plaintiff and three other parties, McCabe Insurances Pty Limited and McCabe Wellings Insurance Brokers Pty Limited and Janet McCabe. His Honour had no jurisdiction to add those three additional parties. 3   In my view the following orders should be made.
1.Appeal allowed.
2.Order 2 by Mr Justice Newman be set aside.

3.In lieu thereof order that the defendant shall not, without the leave of the Court, institute any proceedings in the Supreme Court of New South Wales or in the Local Court against the plaintiff, Mr Colin James Thomas McCabe.
4.Order that no existing proceedings already instituted by the defendants against the plaintiff shall be continued by the defendant without leave of the Court.

5.Orders 1 and 3 affirmed.
6.No order as to costs.
4   MASON P: I agree.
5   DAVIES AJA: I am of the same opinion.
6   ROSIER: Would you hear me on the question of costs?
7   MASON P: Yes.
8   ROSIER: On 28 May 1998…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWCA 423
Decision Date: 30 September 1999

CaseChat Overview and Summary

The Court of Appeal of New South Wales heard an appeal concerning an order declaring the defendant, Valassis, a vexatious litigant. The dispute arose from proceedings initiated by Valassis against the plaintiff, Mr McCabe, in the Supreme Court of New South Wales and the Local Court.

The primary legal issue before the Court of Appeal was whether the original order declaring Valassis a vexatious litigant and prohibiting her from instituting proceedings without leave was appropriate. The court was required to consider the nature of Valassis's past litigation and whether it met the threshold for such a declaration under the relevant legislation.

The Court of Appeal allowed the appeal, setting aside the original order made by Newman J. In its place, the court ordered that Valassis should not, without the leave of the Court, institute any proceedings in the Supreme Court of New South Wales or the Local Court against Mr McCabe. The court also made an order regarding existing proceedings already instituted by Valassis without leave. No order was made as to costs.

Orders

Orders of the court

1. Appeal allowed; 2. Order No 2 by Newman J be set aside.; 3. In lieu thereof that the defendaant shall not, without the leave of the Court, institute any proceedings in the Supreme Court of NSW or in the Local Court against the plaintiff, Mr McCabe.; 4.Order that no existing proceedings already instituted by the defendant without leave of the Court; 5. Orders 1 & 3 affirmed.; 6. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Valassis v McCabe [1999] NSWCA 423
FILE NUMBER(S):	CA 040821/97
HEARING DATE(S):	30 september 1999
JUDGMENT DATE:	30 September 1999
PARTIES :	Dennis Valasis Colin James McCabe
JUDGMENT OF:	Mason P at 4; Meagher JA at 1; Davies AJA at 5

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Newman J

COUNSEL:	Dennis Valassis - litigant in person - appellant
SOLICITORS:	Dennis Valassis - litigant in person Mr Rosier - Rosier & Associates (respondant)
CATCHWORDS:	appeal against being declared a vexatious litigant
DECISION:	1. Appeal allowed; 2. Order No 2 by Newman J be set aside.; 3. In lieu thereof that the defendaant shall not, without the leave of the Court, institute any proceedings in the Supreme Court of NSW or in the Local Court against the plaintiff, Mr McCabe.; 4.Order that no existing proceedings already instituted by the defendant without leave of the Court; 5. Orders 1 & 3 affirmed.; 6. No order as to costs.