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 very shortly after leave was granted to Mr Valassis I wrote to him in terms which are contained in the letter which I seek to tender to you. I repeated the offer which was contained in that letter in a letter which went to him on 4 September this year, obviously just shortly before this day.

9   MASON P: Is there any practical difference between the order that is being proposed namely no order as to costs and an order which would give Mr Valassis his costs down to and including the day on which leave was granted and give your clients the costs of the appeal thereafter? What's the practical difference?

10   MEAGHER JA: Well practically is there any difference between what we've said and an order in your favour that Mr Valassis pay your costs? You are hardly likely to get them.
11   ROSIER: We're not likely to get them.

12   MEAGHER JA: That's the brutal truth isn't it?

13   ROSIER: No, it's not. Mr Valassis is a man of means, he would certainly put out and the reality is that there has been quite a deal I don't say it's been an impressive amount of work, it's been quite a deal of work on the appeal itself and the offer to settle the matter on the terms which is virtually identical to the terms of the order proposed by you was made very very shortly after the application for leave. Now Mr Valassis is unlikely to be entitled to any costs of the application for leave since he wasn't represented at any stage, there may be some disbursements if he can establish that.

14   MASON P: There's the filing costs of which he prima facie would be entitled to. Perhaps an order under the Suitors Fund Act ought to be made but--

15   ROSIER: I did suggest that in my initial letter as a form of order but perhaps in favour of Mr Valassis.

16   MASON P: Your application is that what, he pay your costs of the appeal though he was successful?

17   ROSIER: On the indemnity basis because from 28 May 1998 he would have been entitled by reason of the offer contained in that letter he would have been entitled to an order very close to the order which you have now handed down in our name.

18   MASON P: No, the Court is of the view that there be no order as to costs of the proceedings in this Court. The order for costs below of course stands.