Applicant v Defendants

Supreme Court of Victoria|2009-03-05|Before: SMITH J

Practice and Procedure - vexatious litigant - repetitious applications after declaration made - procedural options.

(A) An application by Ian Kay seeking leave from the Court to bring proceedings by way of appeal from a decision of the Magistrates' Court. The decision in question is that of Magistrate Goldsborough made on 22 June 2005 rejecting Mr Kay's application to revoke a restraining order made some years ago. It was modified by the learned Magistrate, however, to provide that the order would "last until 22 June 2008" I note that in the detail of the present summons the following is stated:

"That this matter cannot be heard until he is supplied with all documents he refers to in another application to the Court."

In his submissions it emerged that what he is seeking to do is to have the restraining order quashed because he wishes to make contact with his children, who are now adults, and fears that, if he attempts to do so, they may apply for a restraining order and he will be disadvantaged if the original restraining order still stands.

(B) The second application by Mr Kay seeks leave from the Court to obtain an order that he be supplied with certain documents by the defendants. The relevant summons filed with the Court contained the following statement:

"Take Notice that the above mentioned applicant, approaches the Supreme Court to seek leave compel the defendants to provide him with all relevant documents re a compensation payment which was made to Ms McIntosh and involved the applicant's children.

The applicant claims that the documents he requires are absolutely necessary for him to prove he is not a vexatious litigant, and how he has been gaoled based on conspiracies and perjury and how this has denied him contact with his children for 14 years and poisoned their minds against him."

"for the Court to make an order that the applicant be able to have a court hearing to remove the vexatious tag he wear".

In the relevant summons I note the following is stated:

"That the Court accepts that the applicant is being denied natural justice by being declared a vexatious litigant, as any application he makes to any Victorian court is immediately biased against him, and this is preventing him being reunited with his children.

That the Court accepts that the applicant has been denied contact with his children now for 15 years, and that their minds are poisoned against him by the very same lies and treachery that has criminalised him.

That this matter cannot be heard until the applicant has been supplied with all the relevant documents he requests to enable him to prove the above."

2 Mr Kay was declared a vexatious litigant by Eames J on 23 February 1999. Since then, he has brought many applications to this Court in an attempt to initiate proceedings. Warren CJ noted in Kay v Attorney-General of the State of Victoria[2] that he appeared to have sought to initiate legal proceedings on at least 28 separate occasions. In the matter before Chief Justice Warren, he sought orders that the orders made by Eames J on 23 February 1999 declaring him a vexatious litigant be set aside or revoked - an application repeated before me. He failed in that application. Warren CJ noted, when she handed down her decision dismissing his application on 19 December 2008, that in an application before her he sought access to documents relating to compensation payments made to his former wife and children.[3] That application too is repeated before me. He appealed against the learned Chief Justice's decision unsuccessfully to the Court of Appeal. I note also that in earlier proceedings before Hansen J,[4] Mr Kay also unsuccessfully applied to have the order declaring him to be a vexatious litigant set aside. I also note that applications for the production of the documents referred to in the present application were unsuccessfully made before Hansen J in the above matter[5] and Osborn J in another matter.[6] In those also he was unsuccessful. Finally, I note that in the proceedings before Hansen J he unsuccessfully sought leave to apply to set aside the intervention order.[7]

3 Thus, one way or another in other proceedings Mr Kay has recently sought the relief he is seeking before me. In each of those matters, as revealed by the published reasons, judges of this Court have been at pains to try to explain to him why his applications must fail. In particular, the attempt has been made to explain to him that while s 21(5) of the Supreme Court Act empowers the Court to revoke an order made declaring a person vexatious, the Court can only do so if it is proper to do so. It has been explained to Mr Kay that he faces a fundamental difficulty. As was explained in the reasons of Warren CJ:

Prior to exercising the discretion to set aside or revoke an order, the Court must be persuaded that circumstances have so changed from those prevailing at the time of the making of the original order that there is no real risk of a defendant engaging further in conduct of the kind which attracted the making of the order.

4 I in turn have attempted to explain that issue to him. He, however, maintains that there is fresh evidence available upon which he could rely to have the order revoked. The evidence, however, relates to events in the past relevant to the making of the original order. He also does not appear to understand that, assuming he is correct that fresh evidence has been found, it has to be directed to the issue of a change of circumstances on his part; for the question is not whether the vexatious litigant order should have been made in the first place but whether he can demonstrate that it should not continue. Similar difficulties face him in challenging other decisions that were made by courts in the past with which he disagrees such as the restraining order made against him. I note further insuperable difficulties in relation to the restraining order application; it has ceased to operate and he is out of time in lodging any appeal and no material has been filed which would satisfactorily explain the delay in pursuing this appeal.

5 His three applications before me are an abuse of process and should be dismissed. They confirm the wisdom of maintaining the original decision that Mr Kay be declared a vexatious litigant. They should be dismissed with costs. The problem remains, however, that there is no indication that he will cease to make such applications and thus the community faces the problem that this one litigant is likely to continue to abuse the processes of the Court and waste the time of court staff and judicial officers that need to be available to deal with claims of merit. Every time he files applications, they have to be considered and that consideration takes time. Any hearing involving Mr Kay also takes significant time. Further, reasons must be published. As has been shown in the past, considerable care has been devoted to the reasons that are published.

6 Warren CJ and Osborn J in their reasons for judgment considered the issue of whether an application should be made by the first defendant in an effort to bring these repetitious applications to an end. In the matter before Warren CJ there was, in fact, an application made for that purpose, namely, an application that he be prohibited from making further applications to set aside the orders declaring him a vexatious litigant without leave of a judge of the Court. Warren CJ decided that it was not appropriate at that time to do so. It may be said that it is questionable whether such an order would only result in an additional application being filed next time for leave to make a further application to set aside the orders declaring Mr Kay to be a vexatious litigant. But Mr Kay needs to understand that he cannot continue bringing the same applications indefinitely. I note that there may be other remedies available such as orders of the Court prohibiting access to court premises[8] for specified periods of time. Another option that may be available is the obtaining of orders restraining him for a period of time from filing applications seeking the same relief as is sought in the present application. Neither course is to be lightly taken, but the question exists whether the point has been reached where the community is entitled to expect that action will be taken. Mr Kay would not only be doing the community a service, but also doing himself a great service, if he ceased to make these repeated applications. They only confirm the need to maintain the order declaring him a vexatious litigant.

[1] See Attorney-General v Kay [2005] VSC 426 for the details of the history.

[4] [2005[ VSC 426, at [11]:.

[8] See discussion Law Reform Committee, Inquiry into Vexatious Litigants (December 2008), at 183 and the cases their cited - Her Majesty's Attorney-General v Ebert [2000] EWHC Admin 695 and [2005] EWHC 1254 [Admin].

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