Williamson v Elders Rural Services Australia Limited

[2021] NSWSC 1259

Supreme Court

New South Wales

Medium Neutral Citation:

Williamson v Elders Rural Services Australia Limited & Ors [2021] NSWSC 1259

Hearing dates:

6 October 2020

Date of orders:

8 October 2021

Decision date:

08 October 2021

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Vexatious proceedings orders made

Catchwords:

CIVIL PROCEDURE – parties – vexatious litigants – whether the plaintiff has frequently instituted or conducted vexatious proceedings in Australia – whether plaintiff’s conduct of present proceeding demonstrative of future vexatious proceedings being pursued – vexatious proceedings orders made

Legislation Cited:

Vexatious Proceedings Act 2008 (NSW) ss 3, 4, 6, 8

Limitation Act 1969 (NSW) s 52

Trade Practices Act 1974 (Cth) s 52

Civil Procedure Act 2005 (NSW) ss 63, 73

Uniform Civil Procedure Rules r 7.14

Cases Cited:

Bendigo and Adelaide Bank Ltd v Williamson & Anor [2018] NSWSC 1756

Hugh Francis Arthur Williamson v Elders Limited and Ors [2016] NSWSC 450

Jones v Cusack [1992] HCA 40; (1992) 66 ALJR 815

Mohareb v Palmer (No 2) [2020] NSWCA 324

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Potier v Attorney General in and for the State of NSW (2015) 89 NSWLR 284; [2015] NSWCA 129

Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125

Viavattene v Attorney General (NSW) [2015] NSWCA 44

Williamson v Bendigo and Adelaide Bank Ltd [2020] NSWSC 934

Williamson v Carneys Lawyers [2015] NSWSC 1080

Williamson v Elders [2016] NSWSC 1505

Williamson v Elders Limited [2017] NSWSC 667

Williamson v Elders Rural Services Australia Limited (No 1) [2017] NSWSC 1644

Williamson v Elders Rural Services Australia Limited (No. 2) [2018] NSWSC 1986

Williamson v Elders Rural Services Australia Ltd [2019] NSWCA 137

Williamson v Rural Bank Limited [2019] NSWSC 1735

Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Hugh Arthur Williamson (Plaintiff)
Elders Rural Services Australia Limited (1st Defendant)
Rural Bank Limited (2nd Defendant)
Bendigo and Adelaide Bank Limited (3rd Defendant)
Elders Limited (4th Defendant)

Representation:

Counsel:
Hugh Arthur Williamson (Self-represented)
D Robertson (1st and 4th Defendants)
A Avery-Williams (2nd and 3rd Defendants)

Solicitors:
Cowell Clarke (1st and 4th Defendants)
Turks Legal (2nd and 3rd Defendants)

File Number(s):

2019/286765

Judgment

1. The remaining issue in these proceedings is the determination of applications made by the first and fourth defendants, Elders Rural Services Australia Limited and Elders Limited (“Elders”) respectively, and the second and third defendants, Rural Bank Limited and Bendigo and Adelaide Bank Limited (“the Banks”) respectively, for vexatious proceedings orders under s 8 of the Vexatious Proceedings Act 2008 (NSW) against the plaintiff, Mr Hugh Francis Arthur Williamson (“Mr Williamson”), prohibiting him from instituting further proceedings in NSW against each defendant, their directors, officers or legal representatives without the leave of the court.

2. The principal proceedings in which both motions were filed and related proceedings in the Equity Division (2019/283383) were summarily dismissed by Bellew J on 21 July 2020: [2020] NSWSC 934 and [2020] NSWSC 933, respectively. In substance, Mr Williamson sought to impugn or attack collaterally previous judgments of this Court in both its Common Law and Equity Divisions in which the Banks and Elders submit his asserted causes of action had merged. The relevant judgments are those, of Rees J, entering judgment enforcing a settlement of proceedings brought by the Banks against Mr Williamson: Bendigo and Adelaide Bank Ltd v Williamson & Anor [2018] NSWSC 1756; and in the Common Law Division, of Johnson J, dismissing proceedings brought by Mr Williamson against Elders: Williamson v Elders Rural Services Australia Limited (No. 2) [2018] NSWSC 1986. The ground of challenge to each was that when judgment was entered Mr Williamson was under a legal incapacity. This ground was considered by Bellew J in each matter as a separate question which his Honour determined adversely to Mr Williamson. His Honour dismissed Mr Williamson’s various claims against all four of the defendants, leaving the sole remaining question for determination, whether the Court should make the vexatious proceedings orders sought.

The hearing of the application

3. At the hearing, the Banks moved on a notice of motion dated 30 October 2019 and Elders moved on a notice of motion dated 3 February 2020. The Banks pointed to two separate “streams” of litigation commenced by Mr Williamson against them. The first is what the Banks coin the “Great Southern litigation”, arising out of an action by Bendigo Bank against Mr Williamson in this Court seeking the repayment of a debt due under a loan agreement, the substratum of which related to his financial investment in the Great Southern Plantation Managed Investment Scheme. This was the subject of the decision of Rees J. The Banks’ case is that Mr Williamson’s conduct of that and subsequent litigation is vexatious in the proactive steps he has taken to avoid the settlement and his subsequent challenges to the judgment of Rees J. Elders were not a party to the Great Southern litigation.

4. The second stream relates to proceedings instituted in 2015 by Mr Williamson principally against Elders, but from time to time also involving the Banks, their officers and their legal representatives. In the end, before Johnson J, Mr Williamson proceeded against Elders only. This stream of proceedings arose out of the plaintiff’s purchase of a property known as “Reevesdale”, near Bungonia. His claim was that Elders’ employed real estate agent, acting for the vendors, fraudulently concealed or withheld from Mr Williamson information known to the agent adversely affecting the value of the property. This fraud allegation has been maintained by Mr Williamson throughout the various iterations of these proceedings right up to and during the hearing of this contested application. The Banks’ ensnarement in some of the iterations was based upon an allegation that as the Rural Bank, now controlled by Bendigo Bank, was the outgoing mortgagee, the moneys paid in discharge of its mortgage were said by Mr Williamson to be the proceeds of fraud, the receipt of which by the Banks tainted them with the fraud. I should interpolate, that the Banks’ involvement, and that of others joined in their interest, in the Reevesdale litigation instituted in 2015 was resolved by notice of discontinuance (Court Book (“CB”) 76) prior to the hearing before Johnson J. But they have been dragged back into the fray by Mr Williamson during his attempts to re-litigate the matter. This is notwithstanding that the discontinuance was on terms that “each party was to bear its or their own costs.”

5. At the hearing, the Banks read two affidavits of a Mr Stephen Flamer-Smith of 7 August 2020 and 11 August 2020. Mr Flamer-Smith’s 7 August 2020 incorporated Exhibit SFS-1 setting out Mr Williamson’s litigious history against the Banks. Similarly, Elders read an affidavit of Mr Andrew Bullock of 7 August 2020. Mr Bullock’s affidavit incorporated Exhibit ANB-1 setting out Mr Williamson’s litigious history against Elders.

6. Ms A Avery-Williams, counsel for the Banks, also tendered four additional sets of documents at the hearing. First, an email chain dated 2 September 2020 from Mr Williamson to the solicitor on record for the Banks, Ms Fiona Reynolds, with the Associate to his Honour Judge Altobelli of the former Federal Circuit Court of Australia copied in (Exhibit CB 1313-1316). Secondly, an email chain between Mr Williamson and Judge Altobelli’s Associate dated 19 September 2020 (Exhibit CB 1317-1326). Thirdly, an email from Mr Williamson to Mr Rob Kennett, solicitor on record for Elders, and Ms Reynolds dated 24 September 2020 (Exhibit CB 1326). Finally, an email from Mr Williamson to my Associate dated 2 October 2020, admitted as Exhibit A. Mr DAC Robertson, counsel for Elders, tendered a transcript of proceedings before Registrar Hoskinson on 24 July 2020 (Exhibit B).

7. The proceedings before Judge Altobelli are bankruptcy proceedings against Mr Williamson at the suit of the Banks. The hearing before the Registrar was the purpose of fixing the date for the hearing of this current application. The purpose of the tender was to prove that notwithstanding the adverse outcome of the litigation in this Court, Mr Williamson still believes strongly that he is the victim of fraud and continues to maintain a determination to vindicate his belief by ongoing litigation in this Court ventilating the same cause until he is successful.

8. At the hearing, Mr Williamson tendered his speaking notes annexing a map of the relevant area of Bungonia (Exhibit 1). The cumulative thrust of both Exhibit 1 and his submissions is that both Elders and the Banks were complicit in their efforts to defraud him. He appeared unrepresented at the hearing and has been mostly unrepresented in the proceedings relied upon by the defendants as the basis of their claim for relief. I interpolate, however, that he was formerly a solicitor specialising in litigation.

9. The purpose of the tender of the map was to demonstrate that the witness, a Mrs McGinity, accepted by Johnson J, could not have seen what she claimed to see of posters protesting a proposed development that Mr Williamson says were deliberately hidden from him by Elders’ agent. Mrs McGinity’s evidence was that the posters were plainly visible to anyone driving through Bungonia when Mr Williamson met the vendor’s agent there. From his speaking notes it is also plain that Mr Williamson continues to allege that Mr Hannan, the licensed agent who presented the property to Mr Williamson, who has since deceased, knew of the development application that Mr Williamson says materially devalued the Reevesdale property when approved, and connived to remove the posters that would have alerted Mr Williamson to the development application prior to the exchange of contracts and settlement of the sale of the property. It is also plain from this material, and from his oral submissions, that Mr Williamson has far from given up his determination to obtain redress through further proceedings in this Court: 45.48-46.48T.

10. Although each of the cases of each set of defendants could be described as overlapping, aspects of their cases are independent from the other. I note that the question of whether to make a vexatious proceeding order is one at large. The language of s 8(1) of the Act provides as much. In this regard, for instance, if I were to find further proceedings against the Banks would be vexatious, that finding can and may go towards the order sought by Elders, and vice versa. I bear this consideration in mind.

11. Consistently with the approach espoused by the Court of Appeal in Viavattene v Attorney General (NSW) [2015] NSWCA 44, both sets of defendants point to a multiplicity of proceedings, including interlocutory proceedings, propounding essentially the same issues, or aspects of them, raised by the Great Southern litigation and the Reevesdale litigation. The Banks raise eleven discrete proceedings, and Elders, twelve. Of these matters eight involve both the Banks and Elders reducing the total to fifteen, according to my calculation. They are:

1. Common Law Division No. 2015/226349 filed on 3 August 2015. These are the proceedings finally determined by Johnson J on 19 December 2018. These proceedings are in the Reevesdale stream and are relied upon by both the Banks and Elders. I will refer to these as the Johnson J proceedings.

2. Notice of motion filed in the Johnson J proceedings on 18 February 2016 to amend the statement of claim. Again, both the banks and Elders call the conduct of this matter by Mr Williamson in aid of their applications.

3. Notice of motion to strike out Elders’ defence in the Johnson J proceedings filed on 13 October 2016. By this time the banks were not a party and these proceedings are raised by Elders.

4. Further notice of motion seeking leave to file an amended statement of claim in the Johnson J proceedings on 26 April 2016. Again, this matter is raised by Elders.

5. An oral application made in the hearing of the Johnson J proceedings on 27 November 2017 to again amend the statement of claim. This is relied upon by Elders.

6. On 27 September 2018, Mr Williamson commenced District Court proceedings No. 2018/295495 seeking to set aside the Deed of Settlement giving effect to the parties agreed compromise of the Great Southern litigation at mediation on 18 August 2017. The Deed provided for payment of the settlement sum no later than 30 September 2018. These proceedings are relied upon by the banks.

7. Commencement of proceedings in the Equity Division on 10 December 2018, No. 2018/379388. Both the Banks and Elders rely upon these proceedings. These proceedings were commenced within about 3 weeks of Rees J’s decision on 16 November 2018 and one week before the delivery of judgment in the Johnson J proceedings. These proceedings sought to re-litigate the issue of the Banks receipt of the proceeds of fraud previously discontinued upon condition that each party pay its own costs, and claimed the Banks had assisted in the fraud by conducting the Great Southern proceedings; Elders were joined to these proceedings on or about 13 March 2019. The proceedings were determined by Lindsay J on 6 December 2019.

8. On 12 March 2019, Mr Williamson purported to file a summons seeking leave to appeal from the interlocutory decision of N Adams J of 22 April 2016, made during the Johnson J proceedings, refusing leave to amend the statement of claim. Elders relies upon these proceedings and not the bank. The application for leave was heard and dismissed on 13 June 2019.

9. Both the Banks and Elders rely upon the filing of a notice of motion filed on 17 June 2019 in the 2018 Equity proceedings (heard by Lindsay J) seeking discovery.

10. Each of the Banks and Elders rely upon the filing of a notice of motion on 4 July 2019 in the 2018 Equity proceedings seeking orders under the Limitation Act 1969 (NSW) impugning the Great Southern settlement. Both the Banks and Elders rely upon this matter.

11. Oral application to further amend the amended statement of claim made in the 2018 Equity proceedings on 22 August 2019, the day of the hearing before Lindsay J. Although this application only appears in the Banks’ submissions, both the Banks and Elders were parties to the proceedings by this point.

12. Notice of motion filed in 2018 Equity proceedings seeking to set aside the judgment of Johnson J. The 2018 Equity proceedings were summarily dismissed by Lindsay J on 6 December 2019 as a frivolous or vexatious attempt to re-litigate a lost cause.

13. Before the determination of the Equity proceedings, Mr Williamson commenced further proceedings in the Common Law Division bearing No. 2019/286765. Both the Banks and Elders rely upon the commencement of these proceedings filed on 13 December 2019 and summarily dismissed by Bellew J on 21 July 2020.

14. The Banks also rely upon the commencement of proceedings No. 2019/283383 in the Equity Division of the Supreme Court of New South Wales on 11 September 2019, also dismissed by Bellew J on 21 July 2020.

15. The Banks and Elders rely upon Mr Williamson’s notice of motion to amend the statement of claim filed in the 2019 Common Law proceedings on 25 October 2019, as further amended and dismissed by Bellew J as part of the orders on 21 July 2020.

12. As can be seen, Mr Williamson’s determination to propound and re-propound and re-propound again his allegations of fraud against both the Banks and Elders has spawned much substantive and interlocutory litigation in this Court. But notwithstanding a total of fifteen proceedings, including the interlocutory proceedings, it is evident that the 2018 Equity proceedings and both sets of 2019 substantive proceedings are most significant, in as much as they are obvious attempts to re-litigate the Great Southern litigation and the Reevesdale litigation. Notwithstanding the summary dismissal of each of those substantive proceedings, as I have commented, Mr Williamson remains determined to re-litigate them, even now.

Principles

13. A wide definition is given to “proceedings” by s 4 of the Act. It extends to (a) “any civil proceedings”, (b) “any … matter within the jurisdiction of any court”, and (d) “any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings…”. All of the proceedings relied upon by the Banks and Elders fall within this wide definition and are capable of supporting the s 8 relief sought.

14. As I have pointed out, the Banks and Elders also rely on various communications between them and Mr Williamson, and statements made by him in court or to a court as proof that some proceedings were made without reasonable grounds, for an improper purpose or his present intention as to the future conduct of proceedings. I have not found it necessary to multiply instances of these contained in the evidence.

15. The judgment of Simpson AJA (with whom McColl and Macfarlan JJA agreed) in Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317 at [13]-[15], sets out the four-step approach a court, charged with the task of determining a s 8 application, must undertake. The first step in the process is to identify the proceedings the subject of the application that are said to be vexatious. The second step is to determine whether the proceedings are “vexatious” by reference to s 6 of the Vexatious Proceedings Act. Section 6 is in the following terms:

6 Meaning of “vexatious proceedings”

In this Act, vexatious proceedings includes:

(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 that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.

The categories of s 6 are not “independent and self-contained categories” in the sense that the same proceeding the subject of the Court’s inquiry may well fall into one or more of the categories: Mohareb v Palmer (No 2) [2020] NSWCA 324 at [10].

16. The third step identified by her Honour “is to determine whether the person has ‘frequently’ instituted or conducted vexatious proceedings in Australia”. The term “frequently” is derived from the statutory standard requiring a requisite state of satisfaction for the making of an order, as contained in s 8(1) of the Act. Section 8(1) provides:

8 Making of vexatious proceedings order

(1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that:

(a) the person has frequently instituted or conducted vexatious proceedings in Australia,

…

(My emphasis.)

Section 3 provides that the Supreme Court is an authorised court for the purpose of the Act.

17. The term “frequently” is undefined by the Act. But it has been the subject of considerable judicial attention to which I will return when I am considering that aspect of the applications.

18. The fourth step identified by Simpson AJA relates to the Court’s discretion to make such an order. The Supreme Court derives its power to make such an order by virtue of s 8(7). That section provides:

(7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:

(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,

(b) an order prohibiting the person from instituting proceedings in New South Wales,

(c) any other order that the Court considers appropriate in relation to the person.

The final step in the analysis requires the Supreme Court to consider the manner in which it will exercise its discretion, bearing in mind the wide scope of the power conferred by s 8(7)(c).

Whether the proceedings relied upon are vexatious within the meaning of s 6

19. In determining whether the proceedings complained of by the Banks and Elders in support of this application are vexatious, I am entitled to have regard to the views of the judicial officers, if any, who resolved them: s 8(2)(c); Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 (‘Teoh’) at [50] and [52]. Indeed, as the unanimous court observed in Teoh, “in the ordinary course it would require very persuasive material to justify such a departure” from a relevant finding of an earlier court: [54]. That said, those earlier views are clearly not determinative.

20. I also bear in mind that it does not automatically flow from a court’s finding that a plaintiff has failed to establish an arguable case that the proceedings were instituted without reasonable grounds: Teoh [59]. On the question of what constitutes reasonable grounds, Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 – in the context of the phrase ‘unreasonable grounds’ used in Ord 20 r 1.1 of the now superseded Federal Court Rules 1979 (Cth) – stated at [6]:

“… whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. … Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.”

21. For the reasons that follow, I am satisfied that the various substantive proceedings instituted or conducted by Mr Williamson and the interlocutory applications relied upon, as I have identified above, were vexatious within the meaning of s 6. I propose to break up the following analysis of the proceedings into their respective streams of litigation, so far as one can, given the mingling of the waters by Mr Williamson himself in some significant ways. Moreover, I have borne in mind the difference between the “unlikely” and the “hopeless”. One needs to be cautious in branding Mr Williamson’s institution and conduct of the Johnson J proceedings as “hopeless” as they were a comparatively early foray onto the glacis, albeit one of his construction. However, as I seek to demonstrate below, the result was a comprehensive rejection of the whole of Mr Williamson’s case, including the upholding of Elders’ limitation defence which would have been obvious to a reasonable plaintiff careful of his own interests from the start. His very largely unsuccessful attempts to expand the case by repeated interlocutory applications heighten the strong impression that the proceedings were pursued without reasonable grounds. It is not irrelevant to consider that the Johnson J proceedings were not Mr Williamson’s first (unsuccessful) attempt to claim damages for economic loss arising out of the Reevesdale purchase: see Williamson v Carneys Lawyers [2015] NSWSC 1080. And indeed, largely on the basis of the same findings of primary fact independently made by Johnson J: [19]-[23], and [92]-[118], by Adamson J. It is of more than passing interest that the Johnson J proceedings were instituted only two days before Adamson J handed down her decision on 5 August 2015.

22. I have also borne in mind that neither the Banks nor Elders rely on the motion filed by the Banks in the 2017 Equity proceedings, transferred from the Supreme Court of Victoria, to enforce the 2017 compromise. Mr Williamson was, of course, the defendant to those proceedings. But his conduct of his defence was calculated to cause at the very least unreasonable delay. His institution of the 2018 District Court proceedings was a collateral manoeuvre to outflank his legal obligations. That he did not raise the matters averred in those proceedings before Rees J demonstrates those proceedings too were instituted without reasonable grounds. A conclusion reinforced by their consent dismissal on 23 November 2018, after Rees J’s decision, and on terms that Mr Williamson pay an agreed amount for the Banks’ costs (Flamer-Smith affidavit, [22]). At best, the District Court proceedings were conducted to cause unreasonable delay in the enforcement of the 2017 compromise.

23. These matters are dealt with in greater detail below.

The Great Southern litigation

24. To recapitulate, Bendigo Bank commenced proceedings against Mr Williamson in 2010 in the Supreme Court of Victoria seeking the recovery of a debt due under a loan agreement. The loan agreement related to Mr Williamson’s investment in Great Southern Plantation Managed Investment Scheme, which collapsed in 2009. Bendigo’s proceedings were transferred to this Court in its Equity Division in 2017. From the outset of the proceedings in this Court, the plaintiff was self-represented.

25. At a court-annexed mediation conducted in August 2017, the plaintiff agreed to settle the dispute on terms that he pay Bendigo Bank the sum of $400,000 either within 30 days of judgment being delivered in the Johnson J proceedings or by 30 September 2018, whichever was the later. On 25 September 2018, five days before the last day for payment the amount due under the terms of the 2017 compromise, Mr Williamson wrote to the Banks’ solicitors after the Banks’ refusal to extend the time for payment until Johnson J handed down judgment. In that communication, he said the following (at SFS-1 p 53):

“We can deal with this in the civilised way or we can make a multiplicity of applications… If I do not receive a reversal of your indication by return [email] I will take action which will make it quite impossible to enter any judgment.”

Proceedings commenced on 27 September 2018 (2018/295495)

26. Two days later (and three days before the sum was payable), on 27 September 2018, the plaintiff commenced proceedings in the District Court of NSW seeking to set aside the 2017 compromise. His statement of claim alleged that counsel for Bendigo Bank at the court-annexed mediation had made misrepresentations which were intended to be relied upon, and were relied upon, by Mr Williamson (SFS-1 p 42). He sought orders that the agreement be set aside “pursuant s 52 of the Trade Practices Act 1974” (Cth) (CB 58), obviously on the basis that counsel for the Bendigo Bank had engaged in misleading and deceptive conduct in procuring the compromise. The basis for that allegation was that, when the plaintiff asked for assurance that the loan money had been provided by 1 July 2004, counsel assured him that the money had been advanced. He contended that another case, in which the same counsel was involved for Bendigo Bank, demonstrated that the moneys had not in fact been advanced.

27. The Banks filed a notice of motion in the 2017 Equity proceedings seeking enforcement of the 2017 compromise pursuant to s 73 Civil Procedure Act 2005 (NSW). That application was determined by Rees J in Bendigo and Adelaide Bank Ltd v Williamson & Anor [2018] NSWSC 1756. Her Honour recounts some of the correspondence between the Banks and Mr Williamson following the institution of the District Court proceedings at [19] of her judgment. Generally, Mr Williamson stated he did not have the funds to pay the amount due and, again, proposed the Banks wait for Johnson J’s judgment in the Reevesdale litigation. The Banks relayed their intention to press on with enforcing the judgment.

28. Rees J made the following observations (at [28]):

“Mr Williamson did not rely upon the allegations made in the District Court proceedings, nor did he seek a stay of these proceedings pending determination of the District Court proceedings. Indeed, Mr Williamson’s submissions rather proceeded on the basis that the Settlement Agreement was valid and binding. It appears to me that proceedings were commenced in the District Court in an effort to prevent the Bank entering judgment in this Court which the Bank had indicated to Mr Williamson it intended to do … The District Court proceedings appear to me to have been filed for the purpose of frustrating the Bank’s application for judgment in this Court…”

The Banks obtained judgment in their favour in the amount of the settlement and interest (CB 52). As I have said, the District Court proceedings were dismissed by consent (CB 62)

29. Although not relied upon here, there is no reason in the present context not to take Rees J’s observations into account: cf s 8(2)(c). I am satisfied the District Court proceedings were instituted for the wrongful purpose of causing delay or detriment to the Banks. This conclusion is buttressed when one considers Mr Williamson’s conveyed explicit intention referred to at [25] above.

Proceedings commenced on 11 September 2019 (2019/283383)

30. Although somewhat out of chronological order, it is convenient to refer to these proceedings next as they are in the Great Southern stream. Mr Williamson instituted these proceedings by statement of claim filed on 11 September 2019 in this Court’s Equity Division, again, seeking to set aside the 2017 compromise. The statement of claim averred that Mr Williamson was labouring under a medical incapacity when he entered into the 2017 compromise. The statement of claim pleads that the reason Mr Williamson entered into the compromise was because of his medical condition and therefore he had been unable to maintain the litigation, presumably, because of legal incapacity. He also claims to have been “unwell at trial in November 2017 [sic]” (SFS-1 190, CB 206). This is probably an erroneous reference to the hearing before Rees J on 6 November 2018 (CB 43) as this was the only “trial” involving the 2017 compromise.

31. As I have already stated, these proceedings were dealt with by Bellew J on 21 July 2021. On the day before the hearing, in an email exchange between Mr Williamson and the Banks’ solicitors (dated 20 July 2020), Mr Williamson states that, “I will not rely on the state I was in in August 2017” (SFS-1 p 196, CB 212), “My mental health was quite alright”. In a forwarded email to the Banks’ solicitors forming part of the same email chain he states:

“I totally accept what Ms Avery-Williams says. She concludes that I am fine and she is agreed with. Therefore you have your judgment against me and I will get a much larger judgment against your client.

“There is no ruse any more about me being unable to conduct litigation.”

32. In the course of the hearing before Bellew J, when prompted by his Honour for submissions regarding the alleged legal incapacity averred in his statement of claim, Mr Williamson conceded the following (SFS-1, Annexure A p 24-25, CB 423):

“HIS HONOUR: … So, Mr Williamson, the first question I’m asked to determine is whether you were under a legal incapacity on 18 August 2017 … what submissions do you wish to make to me in relation to how I should resolve that question?

PLAINTIFF: Well, I withdraw any suggestion that I was unwell

…

PLAINTIFF: Well, I don’t think on reflection that I was under any incapacity. There have been some writings on this and I agree with Ms Avery-Williams that I was quite able to understand and conduct the proceedings.”

33. With regard to costs, Mr Williamson sought to have any costs order stayed until other proceedings already commenced, and those intending to be commenced, were resolved. The following exchange occurred between his Honour and Mr Williamson (SFS-1, annexure A p 27, CB 425):

PLAINTIFF: “I don’t dispute an order to costs”

HIS HONOUR: “Right”

PLAINTIFF: “I rather think the costs have been swollen by the naughty behaviour of the director of Bendigo Bank”

…

PLAINTIFF: “I would seek to bring proceedings against that director for that wrong behaviour which have swollen the costs and in the meantime, I would ask that the costs be not enforceable yet until the – the end of the – these proceedings”.

34. In Bellew J’s judgment in Williamson v Bendigo and Adelaide Bank Ltd [2020] NSWSC 934, he noted that Mr Williamson had served a notice to discontinue the proceedings. In that context, his Honour observed that there was “no justifiable basis on which the proceedings should remain on foot given that the plaintiff has abandoned any suggestion that he was incapacitated” (at [15]). As to costs, with regard to the Mr Williamson’s intention to commence new proceedings, I infer, at least one of them being against the director of Bendigo Bank mentioned, and other proceedings already commenced, his Honour held (at [16]):

“[Mr Williamson] submitted that the execution of any costs order be stayed until such time as other proceedings that he has instituted, or may wish to institute, against another party or parties have been resolved. That submission appears to proceed on the assumption that any such proceedings will be determined in his favour and will result in the payment of an amount of damages to him. In my view, there is no proper basis for deferring the operation or execution of any costs order. The basis on which the plaintiff advanced the proposition that execution of a costs order be stayed was entirely speculative.”

35. I am satisfied that these proceedings were commenced without reasonable ground. Mr Williamson’s staggering admission in correspondence of engaging in a “ruse” that he was unfit to conduct litigation can only be taken as evidence there was no reasonable ground for instituting the proceedings. Frankly, so much is palpably obvious. As relevant to my discretion, I also find Mr Williamson’s submissions on costs evince an intention to commence new proceedings against the Banks.

The Reevesdale proceedings

The Johnson J proceedings (2015/226349)

36. On 3 August 2015, as I have said, two days before Adamson J handed down judgment against him in proceedings against his former solicitors involving the same subject matter, Mr Williamson filed a statement of claim commencing proceedings against the Banks, Elders and the solicitor and her firm representing Bendigo Bank in the Great Southern litigation. The statement of claim sought costs of the proceeding (and the costs of “all parties” in the Adamson J proceedings), a total sum of $5,103,720 for losses incurred from the sale of the Reevesdale property and exemplary damages of $20m (ANB-1 pp 16-21, CB 462-467).

37. Johnson J entered judgment in favour of the remaining defendants, being the Elders parties in this proceeding. His Honour summarised Mr Williamson’s claim as formulated in his third further amended statement of claim in Williamson v Elders Rural Services Australia Limited (No. 2) [2018] NSWSC 1986 (at [3]-[5]) as follows:

“Put shortly, the Plaintiff alleges that a fraudulent representation was made by an employee of the Defendant, Leslie Joseph Hannan, in relation to the sale to the Plaintiff of a property known as ‘Reevesdale’ at Bungonia. Bungonia is a small town in the Southern Tablelands of New South Wales. The sale of ‘Reevesdale’ occurred in July 2007 when the Defendant (then known as Elders Limited) was joint agent for the sale of that property. Mr Hannan, who is now deceased, was a licensed real estate agent and an employee of the Defendant, who accompanied the Plaintiff on an inspection of ‘Reevesdale’ in April 2007.

“The Plaintiff alleges that Mr Hannan fraudulently misrepresented the reason why the vendor was selling ‘Reevesdale’. It is alleged that Mr Hannan was aware at that time (prior to July 2007) that the true reason why ‘Reevesdale’ was on the market at the price then being sought was because an application had been made for a quarry to be built on a nearby property, “Ardmore Park”. The Plaintiff contends that Mr Hannan gave the reason for the vendor selling the property as being the alleged presence of ghosts in ‘Reevesdale’.

“The Plaintiff claims to have purchased ‘Reevesdale’ in reliance upon this representation by Mr Hannan, and claims to have suffered loss by reason of his purchase of the property. He alleges that, if he had known of the proposed quarry on “Ardmore Park”, he would not have purchased ‘Reevesdale’. The Plaintiff contends as well that he would not have engaged in a refinancing exercise with Rabobank Australia Limited for both the purchase of ‘Reevesdale’ and the refinancing of his residential property in Cascade Street, Paddington.”

38. I have set out Johnson J’s findings at [51]-[52] below. It is however clear that Mr Williamson’s claim against Elders relies on the same factual matrix rejected by Adamson J.

Notice of motion filed 18 February 2016 (2015/226349)

39. Only ten days after the institution of the proceedings, on 13 August 2015, Mr Williamson served an amended statement of claim adding an additional eight defendants. Then on 18 February 2016, he filed a notice of motion seeking to amend his statement of claim, removing all but Elders as defendants, and seeking to plead a cause of action based on misleading and deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth).

40. That notice of motion came before N Adams J, who refused Mr Williamson leave to file the amended statement of claim: Hugh Francis Arthur Williamson v Elders Limited and Ors [2016] NSWSC 450. Her Honour concluded that leave should be refused on two bases. The first reason was that the amended statement of claim failed to disclose a reasonable cause of action. Her Honour concluded that Mr Williamson failed to assert that Mr Hannan, the licensed real estate agent, had any actual private knowledge of the quarry development proposal; rather, the pleading asserted that, by reason of everyone in the area have actual or constructive knowledge of the development proposal, so should Mr Hannan (at [44]). Her Honour noted that Mr Williamson’s claim under the Trade Practices Act was statute-barred, and although his allegations of fraud could have extended the time limit, there was no material before her Honour to make a finding on the issue (at [45]-[47]).

41. The second basis for refusing leave was the embarrassing nature of the pleadings. Her Honour held (at [50]):

“Having considered the proposed amended pleading as a whole I am of the view that it is embarrassing in that it is ambiguous, vague and internally contradictory. The proposed pleading does not state with sufficient clarity the case that must be met by the first defendant. I find that the complaints made in relation to it on behalf of the second defendant [that the loss was sustained on the date of purchase, there was no evidence of a disability, and his failure to particularise the representations he is alleged to have relied upon], are made out.”

42. I do not believe that it automatically follows from filing a motion for leave to rely on amended pleadings that are found to be embarrassing in the technical sense that the proposed claim was made or pursued without reasonable ground. However, these particular pleadings involved more than mere drafting errors. They made broad, unparticularised allegations of fraud, and unsubstantiated claims of impairment. The motion was instituted and pursued without reasonable ground.

Notice of motion filed on 13 October 2016 (2015/226349)

43. Following N Adams J’s judgment, the plaintiff filed two further proposed amended to the statements of claim, dated 20 May and 31 August 2016. On 12 September 2016, Elders consented to Mr Williamson filing a second further amended statement of claim, in response to which, on 10 October 2016, Elders filed their defence.

44. Mr Williamson filed a notice of motion on 13 October 2016 seeking to strike out that defence. That application came before Beech-Jones J (as his Honour then was) and his Honour dismissed it: Williamson v Elders [2016] NSWSC 1505. The strike-out application concerned Elders’ pleading that Mr Hannan had spoken to the plaintiff regarding the proposed quarry. Elders’ pleading was supported by an affidavit sworn by Mr Hannan in 2015, and as I have already said, who was deceased by the time of the hearing, to the effect that Mr Hannan had stopped at a house in Mountain Ash Road with a community advocacy group’s anti-quarry placard adjacent to it; he spoke to a man who informed Mr Hannan he was protesting a quarry; and the person described himself as an organiser of an action group. Mr Hannan stated he then telephoned Mr Williamson to relay this information, to which Mr Williamson said he would make his own enquiries (at [4]-[11] of his Honour’s judgment).

43. His Honour refused to resolve the contention, it being “a classic matter of fact to be determined at trial” (at [16]) and one unsuited to the task of the Court in determining an interlocutory issue such as a strike-out application. After receiving the parties’ submissions on costs, his Honour held (at [19]):

“In the end, I do not think there is any basis to deny [Elders’] application for indemnity costs. The Notice of Motion was doomed from the outset, because it was based on a fundamental misconception of the role of the Court at an interlocutory stage compared with the trial stage. Despite a number of difficulties affecting Mr Williamson, I think with a moment's reflection he should have been able to appreciate that. I see no reason why [Elders] should have to incur costs because an unreasonable notice of motion was persisted with.”

46. I take Beech-Jones J’s observation that the notice of motion was “doomed from the outset” to mean the application was devoid of any legal merit. I agree; it was made without reasonable ground.

Notice of motion filed on 26 April 2017 (2015/226349)

47. On 26 April 2017, the plaintiff filed a notice of motion seeking leave to file a third further amended statement of claim. On the same day, Elders filed a notice of motion seeking summary dismissal of the claims against it and the dismissal of the plaintiff’s second further amended statement of claim. Those applications were again heard by Beech-Jones J. His Honour granted the plaintiff leave to file the third amended statement of claim, although his Honour rejected pleadings alleging fraud on the part of Elders Rural. The gist of the pleadings was “that Elders Rural directed Mr Hannan to specifically not tell Mr Williamson and his wife that there was a development application for a quarry on the property adjacent to Reevesdale, that it did so for the purpose of maximising the prospects of selling Reevesdale and that Mr Hannan gave effect to that direction”: Williamson v Elders Limited [2017] NSWSC 667 at [17].

48. His Honour rejected those pleadings on the basis that, given the strict requirements for pleading fraud, they were insufficient to support the allegations advanced. Moreover, as the pleadings sought to attribute fraud directly rather than vicariously, and as they failed to identify the person or persons who authorised Mr Hannan to commit the fraud, the pleadings fell short of the pleading requirements for attributing fraud to a corporate body (at [18]-[23]). His Honour refused to allow an amendment seeking exemplary damages from Elders Rural, in large part, again, because Mr Hannan was merely an agent of Elders Rural, and accordingly the pleadings were insufficient to support a claim of exemplary damages for fraud against the principal (at [24]).

49. His Honour concluded with this observation (at [27]):

“… I will then hear the parties on directions designed to take the matter up to trial. It is my strong suspicion that, unless the matter gets moving towards a trial, it will simply become bogged down in further pleading issues that do not appear to be getting anywhere.”

50. This was the second time Mr Williamson sought to plead fraud. It was the second time he failed to adequately particularise the allegations of fraud against Mr Hannan and Elders. Notwithstanding that his Honour acceded to Mr Williamson’s application to file aspects of the claim, I am satisfied that those portions related to fraud were made without reasonable grounds and were thus vexatious.

Oral application on 28 November 2017 (2015/226349)

51. The substantive claim, as mentioned above, came before Johnson J for determination on a hearing commencing on 27 November 2017. As a result of Beech-Jones J and N Adams J’s interlocutory decisions, Mr Williamson proceeded to trial on the sole basis of a common law claim of fraudulent misrepresentation: [25]. After the conclusion of the evidence but before closing addresses, Mr Williamson sought leave to again amend his third further amended statement of claim to seek exemplary damages from the defendants. In dismissing the application ex tempore in Williamson v Elders Rural Services Australia Limited (No 1) [2017] NSWSC 1644, his Honour noted that the same application had already been rejected earlier by Beech-Jones J’s second decision. Nothing falling out in evidence had altered the position since then, and thus there was no basis to entertain Mr Williamson’s application (at [5] and [7]). Again the application to amend had been made without reasonable grounds, in my view.

52. Ultimately, Johnson J found in favour of the defendants on both its limitation defence and the liability issue, Mr Williamson having “fallen far short … on virtually every contested issue in the proceedings” (at [185]). After making his findings with respect to Mr Williamson’s failure to make out his case of fraud and to overcome the statutory bar, his Honour made the following observations (perhaps findings, although nothing in the present application turns on such a dichotomy):

1. The false representation pleaded by the plaintiff was not supported by the evidence in the plaintiff’s case, his own evidence, nor that of his former wife: at [165];

2. There was no evidence supporting a conclusion that the pleaded representation was false, nor any evidence going towards the vendor’s reasons for selling the property: at [167];

3. There was no evidence that Mr Hannan knew or believed the alleged representation to be false: at [169];

4. There was no evidence to suggest Mr Hannan believed the vendor was selling by reason of the quarry development proposal: at [171];

5. To the contrary, the evidence demonstrated that the plaintiff was an enthusiastic purchaser of the property, with a desire for speed so he could obtain a tax advantage: at [175];

6. Not only were the losses not attributable to any representation alleged on the part of Mr Hannan, but Reevsedale was at least worth the same, if not significantly more than the plaintiff paid for it at the time the contracts were exchanged, that being the date when the cause of action arose: at [178]-[179];

7. The true cause of the plaintiff’s financial difficulties was his “fanciful expectations of his income cash flow” as represented to his creditors, and the effect of the global financial crisis: at [181]-[182].

53. With respect to Mr Williamson’s oral application to claim exemplary damages, that was plainly made without reasonable grounds and was an abuse of process. That application had been already heard and dismissed by Beech-Jones J. The second application was made without reasonable grounds, as I have said.

54. As for the substantial claim, bearing in mind the caution which must be exercised before assessing these proceedings vexatious, I am also satisfied that it was made without reasonable ground. Even leaving to one side the fact that Mr Williamson’s claim was statute-barred, the fact that the evidence in his case fell far short of supporting the pleaded misrepresentation and that Reevesdale was likely worth more when the cause of action accrued than the plaintiff paid for it serve to demonstrate that the proceedings were instituted and conducted without reasonable ground. In light of the evidence led at trial, I am satisfied his claim was hopeless and devoid of any legal merit.

Proceedings commenced on 10 December 2018 and the oral application made on 22 August 2019 (2018/379388)

55. On 10 December 2018, when Johnson J’s judgment was still reserved, Mr Williamson commenced proceedings in the Court’s Equity Division against the Banks, to which Elders was later joined when Mr Williamson filed a proposed amended statement of claim in March 2019. The Banks and Elders responded by filing notices of motion to have the proceedings dismissed or the amended statement of claim struck out. Mr Williamson filed a further notice of motion on 4 July 2019. Mr Williamson’s 4 July 2019 notice of motion and the defendants’ dismissal/strikeout application were heard by Lindsay J on 22 August 2019 and decided on 6 December 2019: Williamson v Rural Bank Limited [2019] NSWSC 1735.

56. At the hearing, Mr Williamson made an oral application to further amend his amended statement of claim to include, inter alia, the following pleading (ANB-1 p 609, CB 1055):

“150. The representatives from Cowell Clarke for Elders Rural Services Australia Limited and from Turks Legal for Bendigo have extended beyond what could be in pursuit of a remedy which their client has a hope of reasonably obtaining. They have done that by denying things which are not capable of being denied and concealing that which is a fraud. As such they have assumed responsibilities for their clients’ wrongs.

…

151.6 An order that Cowell Clarke and Mr Robertson of counsel and Turks Legal be made liable for the damages of concealing the fraud.”

57. Notwithstanding Mr Williamson’s abandonment of this claim (at [5]), the defendants rely upon the making of the application to advance their application.

58. As Lindsay J observed, with the exception of his claim that he was a person under a “disability” for the purposes of the Limitation Act 1969, “the case [Mr Williamson] seeks to make in the current proceedings, against the Banks and the Elders Parties, is substantially the same as that advanced by him in proceedings determined against him by Johnson J” (at [11]).

59. His Honour agreed that Johnson J’s judgment prevented Mr Williamson’s attempt to re-litigate the dispute (at [15]). His Honour also determined that s 52 of the Limitation Act did not come to Mr Williamson’s aid, in substance, because (at [16]-[19]): he had not put his claimed disability to proof; had it been proved it would not have rendered Johnson J’s judgment a nullity because of the operation of s 63 of the Civil Procedure Act or UCPR r 7.14 requiring the appointment of a tutor for a disabled person; and that in any event he would still be bound by the judgment as the Limitation Act only operated to suspend the running of a limitation period, not invalidate decisions made in cases commenced within the extended limitation period. His Honour provides the following concluding observations in dismissing Mr Williamson’s claim (at [28]):

“I am satisfied that these proceedings are an abuse of the process of the Court. The principles governing the finality of judgments, in one form or another, preclude the plaintiff from re-litigating against any of the defendants the cause he lost in the proceedings that culminated in the judgment of Johnson J, by which he remains bound. He has demonstrated in these proceedings no reasonable cause of action against any defendant, but a determination to pursue against them proceedings which are both frivolous and vexatious.”

60. I agree with his Honour’s conclusion that the proceedings were an abuse of process. The application itself was premised upon the Limitation Act and was made without supporting evidence. It was made without reasonable ground. His Honour’s observation about Mr Williamson’s determination to continue to pursue the Banks and Elders is particularly pertinent in the present context.

Notice of motion filed on 10 September 2019 (2018/379388)

61. On 10 September 2019, whilst Lindsay J was still reserved, Mr Williamson filed a notice of motion seeking to have Johnson J’s decision set aside. His Honour dismissed that application ex tempore, for reasons he recited in paragraph [21] of his [2019] NSWSC 1735 judgment:

“On 12 September 2019 I dismissed the notice of motion with ex tempore reasons for judgment which included the following observations:

[5] The plaintiff's motion does not quite rise as high as he contends. On a closer reading the motion seeks to obtain some priority for a motion that the judgment of Johnson J be set aside.

[6] The current proceedings are not appropriate for any application that is made by the plaintiff for the judgment of Johnson J to be set aside.

[7] It is not a matter for me to advise the plaintiff about what course he should take. I have nevertheless suggested to him that if an application were to be made to have the Johnson J judgment set aside: it might be made in the proceedings in which Johnson J delivered judgment; it might be made in fresh proceedings depending upon the grounds upon which an application to have the judgment set aside is made; or it might have to be made by way of an appeal (out of time, it should be said) from Johnson J's judgment. These alternatives do not include an application made in these current proceedings.

[8] The plaintiff's desire to have Johnson J's judgment set aside is based, it seems, upon his perception that, as his opponents contend, the existence of the judgment is an impediment to the continuation of the current proceedings.

[9] Upon an assumption that, procedurally, the plaintiff makes a correct form of application to set aside Johnson J's judgment, a number of impediments might well stand in his way in getting the judgment set aside. I mention only one of them.

[10] In reasons for judgment published by the Court of Appeal on 13 June 2019 as Williamson v Elders Rural Services Australia Ltd [2019] NSWCA 137 at paragraph 22, the Court of Appeal (constituted by Leeming and White JJA) recorded that, in oral submissions before the Court of Appeal, the plaintiff ‘confirmed that he had chosen not to challenge any aspect of Johnson J's decision.’

[11] In all of the circumstances, it seems to me that the proper course is for me to dismiss the plaintiff's notice of motion filed 10 September 2019, and to resume consideration of the judgment reserved on 22 August 2019. That I propose to do.”

62. Mr Williamson’s attempt to have Johnson J’s decision set aside in an inappropriate proceeding was clearly made without reasonable ground.

Notice of motion filed 17 June 2019 and notice of motion filed on 4 July 2019 (2018/379388)

63. At this juncture, I interpolate that two other notices of motion were filed by Mr Williamson and are relied upon by the Banks and Elders but, by reason of Lindsay J’s dismissal of the claim, never made it to argument. The first is dated 17 June 2019 which sought discovery. The second is dated 4 July 2019 and related to the Limitation Act. The Banks point to sought order 5 of the application for discovery, namely that Bendigo and Adelaide Bank Limited “give discovery of all documents by which it became aware of the dates which were set for the trial of Williamson v Carneys” (ANB-1 p 576, CB 1022). The 4 July 2019 notice of motion sought an order that (ANB-1 p 578, CB1024):

“Pursuant to the Limitation Act 1969 and s 52 of that Act the limitation period fixed by this Act for the cause of action has commenced to run, and the plaintiff was under a disability from 1 November 2010 until 30 June 2018 (“the period of disability”) so that issue estoppel does not apply to any action taken during the period of disability.”

64. Although Lindsay J notes that his dismissal of Mr Williamson’s claim did away with the need to determine the 4 July 2019 application, the defendants rely on Lindsay J’s observations regarding s 52 of the Limitation Act and Mr Williamson’s case. Namely, that it did not support his claim.

65. The application clearly lacked any reasonable ground. It laboured under a critical misapprehension as to the operation of the Limitation Act. The discovery application was also made without reasonable ground. It ignored the operation of Practice Note SC Eq 11: Disclosure in the Equity Division, the effect of which being that the Court will not order disclosure until evidence has been served unless exceptional circumstances exist.

66. It should also be said that the institution of these unnecessary, indeed, misguided motions further demonstrate Mr Williamson’s determination to carry on propounding the causes of action which, even assuming they were ever viable, have merged in judgments of this Court by way of vexatious proceedings.

Summons seeking leave to appeal filed 12 March 2019 (2019/32907)

67. On 12 March 2019, Mr Williamson filed a summons seeking leave to appeal N Adams J’s interlocutory decision of 22 April 2016 ([2016] NSWSC 450), nearly three years out of time on one view of it. As Lindsay J observed, the application for leave was heard and dismissed by the Court of Appeal, constituted by Leeming and White JJA, on 13 June 2019: Williamson v Elders Rural Services Australia Ltd [2019] NSWCA 137. The thrust of his proposed appeal was that her Honour erred in finding that his proposed amended claim for misleading and deceptive conduct under the Trade Practices Act was statute-barred.

68. In assessing the strength of the case Mr Williamson was prevented from running, the Court of Appeal determined that Johnson J’s decision regarding “whether any conduct on the part of Elders was causally connected with his decision to purchase Reevesedale” gave rise to an issue estoppel ”fatal to the claim based on the Trade Practices Act”: at [29]. Specifically, his Honour’s findings regarding reliance on the part of Mr Williamson, or more accurately the lack thereof, was identical to the element of reliance under both the action at common law for fraudulent misrepresentation and misleading and deceptive conduct under the Trade Practices Act. This was so even though the civil standard of proof would have applied differently between a claim based on misleading and deceptive conduct and one at common law for fraudulent misrepresentation: at [34]. Thus, there was no prospect of Mr Williamson’s claim succeeding under the Trade Practices Act.

69. In the circumstances, Mr Williamson’s appeal was made without reasonable ground. It was far out of time and given Johnson J’s finding that Mr Williamson had not relied on a representation by Mr Hannan, had no prospects of success in circumstances where there was no challenge to Johnson J’s findings.

Proceedings commenced on 13 September 2019 and the notice of motion filed on 25 October 2019 (2019/286765)

70. Mr Williamson instituted these originating proceedings by way of a statement of claim filed in the Common Law Division on 13 September 2019. He also sought to amend that statement of claim by way of notice of motion filed on 25 October 2019. Both the substantive claim and the notice of motion came before his Honour Bellew J for consideration as referred to above. His Honour heard this proceeding and the subsequent application concurrently with Mr Williamson’s attempt to set aside the 2017 compromise in the Great Southern litigation (merged in the judgment of Rees J) on the basis of alleged incapacity.

71. In the Common Law proceedings, Mr Williamson sought to have the decision of Johnson J set aside. Having already conceded that he was not under an incapacity at the relevant time, Justice Bellew held that the “proceedings have no proper basis” (at [21]). As to the notice of motion seeking to amend that claim, his Honour made the following pertinent findings (at [22]-[23]):

“It purports to plead an entirely different case to that set out in the original statement of claim. It pleads, amongst other things, a fraud said to have been committed by Mr Hannan. ... The pleadings might be described in some respects as discursive. In my view, when read as a whole, they do not properly plead a cause of action. The form of the statement of claim does not comply with the rules in respect of pleadings. It is frankly almost impossible to determine with any precision what case the plaintiff seeks to bring, other than a case under the broad umbrella of an allegation of fraud.

“Moreover, it appears to me that the matters sought to be raised by the plaintiff in the proposed further amended statement of claim are the same issues, at least in part, as those adjudicated upon by Johnson J. In those circumstances, as the Court of Appeal observed, the findings of Johnson J operate to estop the plaintiff from further agitating, or seeking to agitate, the same issues.”

72. As I have said, Bellew J dismissed Mr Williamson’s statement of claim and notice of motion, and made orders relisting the defendants’ application for Vexatious Proceedings orders, culminating in the present application before me.

72. Again, I am satisfied that the application and proceedings were made without reasonable grounds. Parts of the claim were estopped by the judgment of Johnson J, other parts, particularly the Limitation Act pleading, had no foundation. Importantly the proceedings were yet another attempt to re-litigate the Johnson J proceedings. If one includes the Adamson J proceedings, this was the fourth substantive attempt to litigate the same factual issues in the Reevesdale litigation, issues which he comprehensively lost after a hearing on the merits twice.

Mr Williamson’s submissions

74. Mr Williamson made both oral and written submissions in defence of his application. He states that judgment was found against him in the Reevsedale litigation because he had not included evidence which had only become apparent to him in May of 2020. He submits that the “evidence shows beyond doubt that Mr Hannan was lying when he claimed to have stopped in Mountain Ash Road and been informed of the [development application] by a member of the Rural Lifestyle Residents Action Group”.

75. His contentions flow from statements contained in Mr Hannan’s affidavit from the substantive Reevesedale proceedings. In sum, Mr Hannan deposed that he became aware of the development application after speaking to an unidentified man on Mountain Ash Road who claimed to be a member of the Action Group. He then telephoned Mr Williamson relaying that information. To the contrary, Mr Williamson submits that Mr Hannan was already aware of the development application and essentially conspired to hide that information from him by pulling down the signs related to development application from the Old School House, which they drove past when Mr Williamson toured the property with Mr Hannan before its purchase. In support of this argument, Mr Williamson tendered a map of the relevant area which became Exhibit 1.

76. The reason Mr Williamson has arrived at the conclusion there was a conspiracy is because Mrs McGinity gave evidence that the signs were up on the date in question. He alleges that the signs must have been taken down in the period between 8:30 am and 12 pm because they were not there when he and Mr Hannan drove past. He argues that Mr Hannan either took them down himself or organised someone else to do it for him. Mrs McGinity’s evidence, he submits, is the reason he lost his case. The relevance of the map (Exhibit 1), which appears to be the new evidence, but was doubtless readily available when the hearing proceeded before Johnson J, as I have stated, is that, Mr Williamson submits, it demonstrates that Mrs McGinity could not have seen what she says she saw. The proposition is very far from self-evident, or even cogent.

77. His contentions are all but in the most immaterial respects identical to those contained in the statement of claim which Justice Bellew dismissed.

78. Aside from fraud, Mr Williamson’s written submission again raises s 52 of the Limitation Act in relation to the sale of Reevesdale. He argues that the proceedings before Johnson J should “count for nothing” because of the limitation period’s suspension.

79. The defence Mr Williamson attempts to mount to the orders sought are nearly identical with the claims for fraud and impairment he has maintained throughout this interminably litigious chronicle, and thus are fundamentally inconsistent with the repeated, adverse findings of this Court. I am satisfied that, even if his submissions were to the point (which they undoubtedly are not), they have no evidentiary foundation whatsoever. His submissions and the evidence he relied upon for the hearing do nothing but bolster the case for the defendants. They evince an unwavering commitment to continue interminably to propound the same baseless case repeatedly rejected by this Court; a position he has ceaselessly sought to agitate and one which, with reference to his conduct of the hearing, I believe he is likely to agitate again at the nearest opportunity.

Whether Mr Williamson has ‘frequently’ instituted or conducted vexatious proceedings

80. The Court of Appeal in Teoh discussed Toohey J’s consideration of the meaning of ‘frequently’ in the context of a similarly worded power under the old High Court Rules 1958 (Cth), his Honour describing it as a “relative term”: Jones v Cusack [1992] HCA 40; (1992) 66 ALJR 815 at 816. It is a term to be understood in the context of the proceedings of the particular litigant: Teoh at [47].

81. In Teoh, the Court of Appeal elucidated the term’s meaning in the context of the Vexatious Proceedings Act (at [49]):

“This does not mean that the test can be satisfied only if a person institutes successive vexatious proceedings at short intervals. Nonetheless, a pattern of repeated vexatious applications within a limited period of time may be an important consideration in determining whether the language of s 8(1)(a) of the VP Act has been satisfied. This is particularly the case where a litigant repeatedly challenges a decision in a manner that demonstrates an unwillingness or inability to accept that the challenge has been rejected and that there are no grounds for further challenges. (My emphasis)

82. Following Teoh, Leeming JA made the following relevant observations in Potier v Attorney General in and for the State of NSW (2015) 89 NSWLR 284; [2015] NSWCA 129 (“Potier”) (Basten and Meagher JJA agreeing) regarding the frequency requirement (at [114]-[117]):

“… It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that “frequently” is a relatively low threshold.

…

“Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. … That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.

“I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of ‘frequently’.” (Emphasis added.)

83. “Frequently” may be a protean word. Whatever the nuances that may attend a given suite of cases, there can be no serious question that Mr Williamson has ‘frequently’ instituted and conducted vexatious proceedings. Although, one might appropriately conclude that at the beginning of the above chronology Mr Williamson fell at the lower end of the scale of ‘frequently institute and conduct vexatious proceedings’, it can be said confidently that their frequency has very greatly increased over the years since August 2015.

84. The escalating frequency of his vexatious proceedings must also be considered alongside the quality of his vexatiousness, which has been high throughout his litigious history involving the Banks and Elders. His behaviour is exactly that described by Leeming JA in Potier. He has made “serious allegations of fraud unfounded in the evidence” against the Banks and Elders. When he has failed in persecuting his claims of fraud, he tries again and again. Perseverance may be an admirable quality, but not in this context. His conduct of his defence to the current application, again, is taken as a further opportunity to ventilate his protestations of fraud and conspiracy. He simply cannot put it to bed.

Should the orders sought be made?

85. There is no small exercise of this Court’s power involved in restricting access to the courts of general jurisdiction. The power exists “not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits”: Teoh at [56].

86. Even so, in the present application there are powerful reasons to accede to the applications of the Banks and Elders. As I mentioned above, the way in which Mr Williamson attempted to resist this application evinces his present intention to continue to pursue his baseless claims against the applicants.

87. Exhibit A, containing correspondence between Mr Williamson and Judge Altobelli’s Associate, demonstrates Mr Williamson’s intentions to further dispute the validity of the 2017 compromise in the Great Southern litigation. Having already lost this argument more than once, before Rees J and Bellew J, to say nothing of the aborted District Court proceedings, this re-emphasises, where necessary for present purposes, his commitment to re-litigate in fresh proceedings, if given the chance, hopeless and previously lost causes entirely devoid of the slightest merit.

88. Mr Williamson also has demonstrated a propensity to pursue related parties, including officers, agents and legal representatives of the Banks and Elders, even if he baulks at when challenged. Action against these individuals is doubtless exceedingly harassing. That he maintains this tendency is clear in light of him signalling to Bellew J a potential action against a Director of Bendigo Bank for the ballooning legal costs of his litigation (he, of course, is self-represented). He has on a number of occasions levelled allegations of fraud against the legal representatives of the parties without evidence.

89. Finally, I am satisfied that the orders sought, confined as they are to the Banks, Elders and their officers, agents and legal representatives, are appropriate in the circumstances. I am satisfied that Mr Williamson has frequently instituted vexatious proceedings against the Banks, Elders and related persons arising out of or in connection with the matters underpinning the Great Southern litigation and the Reevesdale litigation. Mr Williamson’s repeated challenges to Rees J’s judgment in the Great Southern litigation and to Johnson J’s judgment in the Reevesdale litigation, and the manner of his conduct of his litigation, amply demonstrate a complete unwillingness to accept the correctness of the judgments, that his challenges have been rejected and that there are no grounds for any further challenge. There is no discretionary ground to withhold the vexatious proceedings orders sought.

90. For these reasons my orders are:

1. On the motion filed by the Rural Bank Limited and the Bendigo and Adelaide Bank Limited on 30 October 2019:

Under s 8(7) Vexatious Proceedings Act 2008, except in the case of leave first obtained under Part 3 of the Act, Hugh Francis Arthur Williamson is prohibited from instituting proceedings in New South Wales against the Rural Bank Limited and the Bendigo and Adelaide Bank Limited, their directors, officers, employees or legal representatives in any matter in any way related to, arising out of, or in connection with the subject matter of proceedings file No. 2017/156318 determined by Rees J on 16 November 2018 by entry of judgment in favour of the Bendigo and Adelaide Bank Limited and proceedings No. 2015/226349 determined by Johnson J on 19 December 2018 by entry of judgment in favour of Elders Rural Services Australia limited.

2. On the notice of motion filed by Elders Rural Services Australia Limited on 3 February 2020:

Under s 8(7) Vexatious Proceedings Act 2008, except in the case of leave first obtained under Part 3 of the Act Hugh Francis Arthur Williamson is prohibited from instituting proceedings in New South Wales against Elders Rural Services Australia Limited and Elders Limited their directors, officers, employees or legal representatives in any matter in any way related to, arising out of, or in connection with the subject matter of proceedings no. 2015/226346 determined by Johnson J on 19 December 2018 by entry of judgment in favour of Elders Rural Services Australia Limited.

3. The plaintiff to pay the costs of the first, second, third and fourth defendants.

**********

Decision last updated: 08 October 2021