Attorney General for the State of Victoria v Horvath, Senior [2001] VSC 269

Supreme Court of Victoria|2001-08-09|Before: Ashley J

The application was dismissed by the Court of Appeal on 21 June 1996.

The Bank by summons filed 14 February 1997 sought to tax its costs against the defendant's son. The defendant filed a notice of objection in answer to the Bank's summons. In his notice of objection the defendant focused upon factual allegations similar to those set out in his affidavits of May and June 1996. He alleged, in effect, that the Bank had defrauded the court and had committed a conspiracy against his family; and that it had tried to steal Lot 5. His allegation of conspiracy extended beyond the Bank to two firms of solicitors, one of whom had acted for the vendors and one of whom had acted for the Horvath family in the conveyancing transaction.

That was the last step taken in the principal proceeding before 23 June 1997 - the date upon which the defendant filed the defence and counterclaim upon which the Attorney-General now relies. But in the period before 23 June were also proceedings in the Federal Court to which I should refer.

On 8 March 1996 the Bank, in reliance upon the default judgment obtained against the defendant and his wife, issued bankruptcy notices against both of them.

On 11 April 1996 the Horvaths applied to have those notices set aside and for an extension of time for which to comply with them.

The application to set aside the Bankruptcy notices came before a Deputy District Registrar of the Federal Court on 8 May 1996. The application was dismissed.

On 15 May the Horvaths lodged an application for a review of that decision. That application was heard by Northrop J on 29 May 1996, and was dismissed.

On 24 October 1996 the Bank filed a creditor's petition against the defendant and his wife.

On 3 December 1996 the Horvaths filed a notice of intention to appear at the hearing of the petition. The grounds of opposition were that the contract was void because it involved a minor, that the Bank was claiming on a void contract in two separate courts, and that no loan application had been signed by the defendant.

The creditor's petition was heard by Merkel J on 12 February 1997. His Honour made sequestration orders against the Horvaths.

On 21 February 1997 the Horvaths filed a notice of appeal against the decision of Merkel J.

On 4 June 1997 a Full Court of the Federal Court dismissed the Horvaths' appeal from the judgment of Merkel J. Hill J, delivering the judgment of the Full Court, noted that a lengthy written submission had been provided to the court which sought to assert, not on oath, matters of fact from which it was said the court should conclude that it should now go behind the judgment debt. The court declined to do so. Hill J said this:

"We should, however say that even if the matters raised in the written submissions were taken into account they do not seem to lead to the conclusion either that there was no advance by the bank or that the moneys advanced were not repayable. The matters raised, apart from the question of the infant son, concern a circumstance where the original agreement to purchase one lot was changed to an agreement to purchase another lot. There is some suggestion of forgery and a hint of a suggestion that the bank had agreed to the loan being unsecured. However, a mortgage appears to have been executed by Mr and Mrs Horvath as well as their son. It is now registered on the title of land purchased in their joint name with the aid of moneys provided by the bank. Moreover Mr and Mrs Horvath concede that they agreed to accept Lot 5 in substitution for Lot 4, certificate of title to Lot 5 issued in their name subject to a mortgage to the bank and a building was later erected on Lot 5. All that occurred with the assistance of funds advanced by the bank. However, it still remains the case that the material sought to be used by the applicants in their written submission was not material that was before the learned primary judge nor was it on oath. The only real matter before the primary judge as stated in the notice of opposition filed by Mr and Mrs Horvath was the question of the validity of the loan having regard to the fact that the son was a minor. For the reasons his Honour gives, the minority of the son could not affect the liability of Mr and Mrs Horvath, where that liability was not merely joint, but was also several."

Summarising, as at 23 June 1997 the defendant was a bankrupt, that inhibiting his ability to institute a court proceeding. Further, since 21 June 1996, subject only to the taxation of costs, all that remained alive in the principal proceeding was the appeal by the defendant's son against the judgment of O'Bryan J. The time for appeal against the Bank's default judgment against the defendant was long past. Yet what the counterclaim sought to do was, in substance, to litigate the Bank's entitlement to the judgment which it had obtained long ago.

The fate of the late filed defence and counterclaim was determined by McDonald J. I shall refer to his Honour's orders and reasons a little later. It is enough to say, for present purposes, that the counterclaim should properly be described as a proceeding for the purposes of s. 21(2).

The second proceeding relied upon by the plaintiff was a summons filed by the defendant on 22 July 1997 in the principal proceeding. It sought, in effect, default judgment against the Bank on the defence and counterclaim filed on 23 June. It asked the court to investigate the Bank, as knowingly and willingly having carried out a vendetta and conspiracy against him and his family. In a supporting affidavit Mr Horvath deposed that he wanted the Australian Federal Police to investigate and lay unspecified charges under, it seems, the Crimes Act 1958 of this State.

Notwithstanding that the summons of 22 July was filed in the principal proceeding, the time at which it was filed, and the relief which it sought satisfy me that it should be described as a proceeding for the purposes of s. 21(2). Nothing in the summons - or, for that matter, in the affidavit - should lead to the proceeding being excluded as being criminal rather than civil.

On 29 July 1997 McDonald J ordered that the purported defence and counterclaim filed on 23 June be struck out and that the summons filed on 22 July be dismissed. His Honour delivered written reasons. In essence, he held that although the purported counterclaim had been initiated grossly out of time that did not inevitably mean that it could not be pursued. He concluded further, however, that Mr Horvath was not competent to file the counterclaim and to prosecute any rights that he might have had by reason of the fact that he was and remained a bankrupt. It followed that the counterclaim ought be struck out and that the summons, which depended upon it, must fail.

His Honour, in the circumstances, did not have to address the question whether the claim raised by counterclaim was tenable; or was, to the contrary, evidently hopeless.

In my opinion the counterclaim was in fact utterly hopeless. Assuming for a moment that it raised a claim at all, despite its unusual form, the contentions upon which it was based had been or have been roundly rejected. The default judgment against the defendant, from which there was no appeal, depended upon the defendant, inter alia, being a registered proprietor of Lot 5, which land had been mortgaged to the Bank to secure advances made or to be made. It further depended upon there having been default in meeting demands for repayment. Again, judgments in the Court of Appeal and in the Federal Court have demonstrated the irrelevance to the defendant's liability to the Bank of the minority of his son. Moreover, other decisions, though at times denying the defendant's right to relitigate issues, have in substance passed judgment again upon those issues; and adversely to the defendant.

Quite apart from the reasons given by McDonald J for the orders which he made on 29 July, I do not doubt that the counterclaim should be characterised as vexatious. It follows that the summons filed on 22 July 1997 should also be so described.

The third proceeding relied upon by counsel for the Attorney-General was an application on summons filed 23 December 1997 by the defendant in the principal proceeding. The summons asked the court to -

"Set aside all the proceedings originated from the writ filed on the 21st day of December 1994."

The summons also sought orders that the Bank and its solicitors stop all proceedings against the defendant's son in the Federal Court with respect to bankruptcy, that the Court declare the bankruptcy of the defendant and his wife void, that the Bank and its solicitors refund the land to the defendant and his family, and that the Court make orders for damages and costs. On this occasion damages were particularised at about $452,000 together with compensation for the family of $30M.

On 7 January 1998 Beach J ordered that the summons be dismissed with costs. He further ordered that the defendant:

"... may not file any document or summons in this proceeding without the leave of a judge."

He did so having considered, doubtless, the defendant's affidavit in support sworn 23 December 1997. That affidavit made allegations which mirrored matters raised by the counterclaim, and to which I have earlier referred.

In my opinion, notwithstanding that this summons was filed in the principal proceeding, the time at which it was made and the relief which it sought justify its characterisation as a proceeding for the purpose of s. 21(2). The application should rightly be described as having been utterly hopeless.

The next proceeding relied upon by the plaintiff was a summons filed by Mr Horvath in the principal proceeding on 16 November 1998. It should not be thought, however, that Mr Horvath had been idle in the interim. The reasons for judgment of Weinberg J in Horvath v Commonwealth Bank of Australia; Pattison (Trustee) v Horvath[31] reveal that Mr Horvath, having been stymied in this Court, had turned his attentions to the Federal Court. The sequence of events in that court is set out in paragraphs 57 to 78 of the Reasons for Judgment of Weinberg J. The last event in that sequence occurred on 10 November.

The summons of 16 November sought orders that the default judgment entered against the defendant and his wife be set aside and that the defendant have leave to file and serve defences. The summons was supported by Mr Horvath's affidavit sworn 24 November. The affidavit traversed now familiar territory. In addition to repeating various allegations it also took, in part, the form of a counterclaim.

The application was heard by Master Evans on 25 November 1998. I pause to note that the Prothonotary's Office had apparently accepted the summons for filing despite the order made by Beach J on 7 January that year. In the event, the Master dismissed the application.

Having regard to the time at which the summons was filed, and the relief that it sought, I consider that it should be described as a proceeding for the purposes of s. 21(2). I further consider that the application, which mirrored applications that had already been unsuccessfully pursued, was utterly hopeless.

A postscript should be added to this episode in the chronology. It appears that the defendant filed a summons in the court on 24 November seeking leave of a judge to file and serve defences in the proceeding and that the default judgment against the defendant and his wife be set aside. On 30 November 1998 Beach J refused to grant the relief sought. Mr Caleo did not, I think, argue that the summons heard by Beach J should be treated as an additional proceeding for s. 21 purposes.

The fifth proceeding relied upon by the Attorney-General was a summons filed in this Court on 5 March 1999 in the principal proceeding. Notwithstanding that the summons purported to be issued in that proceeding it was directed not only to the Bank but to various individuals including two persons described as the Bank's solicitors.

The summons was rather a confused document but it did seek, in effect, leave to proceed; and it identified an application for "final relief, damages and compensation". It revisited much old ground. It sought, inter alia, the setting aside of all proceedings which had originated from the writ, deletion of registration of the instrument of mortgage, annulment of the bankruptcy of the applicant and his wife, damages and compensation, and costs.

It appears that the summons never got to hearing. On 10 March the senior Deputy Prothonotary wrote to Mr Horvath saying that the issue of the summons had been brought to the attention of the Practice Court judge who had directed him to inform Mr Horvath that the summons was invalid and had no standing. Nonetheless, the summons had in fact been filed and it was never removed from the court file so far as I can see.

In my opinion the summons should be described, for the purposes of s. 21, as a proceeding. That is so for reasons which I have given in connection with other applications late made in the principal proceeding.

The summons sought, as I have said, relief of a kind which Mr Horvath had previously sought on a number of occasions. It was based upon matters, also, that he had previously sought to agitate. For reasons given in connection with earlier proceedings where the same relief had been sought based upon similar allegations, the proceeding commenced by the summons should properly be described as completely hopeless.

According to the plaintiff's case the sixth relevant proceeding was initiated by a summons filed in the Court of Appeal on 31 March 1999. By the summons Mr Horvath sought to overturn the order made by Beach J on 7 January 1998 which prohibited him from filing any document or summons in the proceeding without the leave of a judge. He further sought leave to file and serve defences in the proceeding, to have the default judgment entered against his son set aside, and to have the default judgment entered against he and his wife set aside.

The summons was supported by an affidavit of the defendant sworn 31 March 1999. It is unnecessary to refer to the content of the affidavit in any detail. It is enough to say that it sought to revisit the sequence of events concerning Lot 5 which culminated in the Bank's action for possession. By paragraph 16 Mr Horvath specified orders sought by him - presumably upon the summons of 31 March. The orders sought went beyond the relief sought by the summons itself, and included claims that the registration of the instrument of mortgage be deleted, that the bankruptcy of the defendant and his wife be set aside, that damages now asserted at something in excess of $5.25M be paid to the defendant and his wife, that compensation of $30M be paid to the Horvath family, and that the Bank stop all proceedings against the defendant's son.

The purported appeal should be described as a proceeding for the purposes of s. 21(2). In almost all respects it mirrored relief previously sought by the defendant, and was based upon the same material. It was in those respects hopeless. It is further the fact that the defendant was then still an undischarged bankrupt.

True it is that the defendant sought additional relief by his summons - that is, that the order of Beach J which prohibited him from filing any document or summons in the principal proceeding without the leave of a judge be set aside. But it seems to me that the defendant's case in that respect was quite hopeless also. Not only did he file the summons whilst being an undischarged bankrupt, but the appeal - whether it should be viewed as an appeal or an application for leave to appeal - was long out of time. If the defendant required leave to appeal in order to pursue his contention that the relevant part of the order of Beach J made on 7 January 1998 should be set aside, I should think that his prospect of obtaining leave was non-existent. If, on the other hand, the application to set aside the relevant part of the order of Beach J was to be treated as an appeal commenced out of time (putting aside altogether problems with the form of the material) then I should think it was impossible that time would have been extended. A matter which must have weighed heavily was the hopelessness of the application itself. That hopelessness was evident not only from the nature of the proceedings brought by Mr Horvath which had prompted the order of Beach J; it was also reinforced by the balance of the matters which Mr Horvath attempted to raise by his summons of 31 March 1999.

I should add, with respect to the summons of 31 March, that in addition to other problems which I have described it sought relief in favour of the defendant's son[32]; and that the affidavit in support sought annulment of the bankruptcy of the defendant and his wife, and also that the court put a stop to all proceedings against the defendant's son. The documents therefore invited the court to make orders which on no view did it have power to make.

The summons of 31 March did not come on for hearing before the Court of Appeal. The Registrar wrote to the defendant by letter of 7 April saying that the summons had been "issued by this office incorrectly", on the footing that the defendant was a bankrupt and that his trustee in bankruptcy had not authorised the filing of any legal proceeding. Issued in error the summons may have been. But that is not to say that a proceeding was not instituted.

The seventh proceeding upon which the Attorney-General relied was a summons filed by Mr Horvath in the County Court on 1 May 2000. But before I come to that summons I should say something about events which occurred in the period between 31 March 1999 and the filing of the summons on 1 May 2000. I do so simply to flesh out the narrative.

On 27 April 1999 Weinberg J delivered judgment in the Federal Court, making an order against the defendant and his wife pursuant to Order 21 Rule 2 of the Federal Court Rules. That is the equivalent of s. 21(2).

Thereafter, Mr Horvath initiated proceedings in the Magistrates' Court of this State against employees of the Bank, against his trustee in bankruptcy, against a solicitor who had acted for the Bank in the principal proceeding, and against the Bank's internal solicitor. The various proceedings were commenced in the period 7 October to 13 October 1999. In the main, the proceedings alleged that the particular defendant had committed the offence of perjury by swearing a false affidavit in Mr Horvath's bankruptcy proceedings. The Bank's internal solicitor was charged with an offence under what was described as "s. 321G Incitement Crime Act 1958". That was an additional charge specified in the case of some of the other defendants.

On 26 October 1999 a magistrate struck out nearly all the summonses for want of jurisdiction. One matter was adjourned for summary mention.

On 24 November 1999 Mr Horvath made ex-parte application seeking to appeal from the magistrate's decisions. A master dismissed the appeal.

Mr Horvath appealed the master's decision. The appeal was heard by Beach J on 29 and 30 November 1999. His Honour dismissed the appeal in each matter.

In his reasons his Honour said that he considered that the magistrate had correctly found that the Magistrates' Court had no jurisdiction to hear and determine the charges; and on that basis alone his Honour would dismiss each appeal. He went on to say that it seemed to him that in bringing the charges that he had against the individuals in question Mr Horvath was simply seeking to circumvent the order made by the Federal Court declaring him a vexatious litigant. His Honour said that he considered the proceedings to be vexatious and simply another example of the lengths to which Mr Horvath was prepared to go to harass the Bank and its officers.

The next step, chronologically, was that Mr Horvath commenced a proceeding in the County Court by summons filed 5 April 2000. It was directed to the Sheriff and summoned him to attend before the Practice Court of that court on the hearing of an application by Mr Horvath for an order that the Sheriff be authorised and required to proceed to commit various "accused respondet's" for perjury. It is not clear to me who the accused persons were, but light is probably cast on the matter by a further summons filed by Mr Horvath on 13 April in which he sought, in effect, the prosecution of eight individuals for perjury. The eight individuals, so far as I can see, were the persons who had been the subject of Mr Horvath's unsuccessful Magistrates' Court proceedings. It appears that the 13 April summons in the County Court followed upon a hearing before his Honour Judge F.B. Lewis on 12 April in connection with the summons filed on 5 April.

It is not clear from the material filed in this proceeding what happened to the summons of 13 April. What is clear, however, is that the next step taken by Mr Horvath was the filing of a summons in the County Court on 1 May - that summons being the seventh proceeding relied upon by the plaintiff before me.

The summons was directed to the Bank and the eight individuals to whom I have earlier referred. It summoned each of the defendants to answer a charge of contempt. In each instance it was alleged that the defendant had committed perjury. The Bank had done so by lodging forged documents. The Bank's internal solicitor had done so by taking steps in the principal proceeding, and by using forged documents in the proceeding so far as it pertained to the claim against the defendant's son; four of their defendants had made false statements in affidavits filed in bankruptcy proceedings; and two defendants had made false statements in proceedings sworn in the Federal Court.

On 8 May 2000 Judge F.B. Lewis ordered that the summons of 1 May be struck out. He directed that the Registrar refuse to seal any document constituting an originating process by or in the name of Mr Horvath where the form or contents of the document showed that the proceeding to be commenced would be irregular or an abuse of the process of the court; and that the Registrar refuse to accept for filing any document by or in the name of Mr Horvath that was not prepared in accordance with the rules of the court - in each instance without first obtaining a direction from a judge or the master. His Honour further directed that the Registrar refuse to seal any document by or in the name of Mr Horvath by which Mr Horvath purported to commence proceedings pursuant to Rule 75.06 in respect of the matters referred to in the summons of 1 May.

I do not doubt that the summons filed on 1 May was a further attempt by Mr Horvath to circumvent orders made in the Federal Court, to relitigate matters which had been denied him by the earlier orders made in the Magistrates' Court and by orders on appeal, and to pursue the substance of issues that he had by then been litigating for years. The form of the summons, and the affidavit in support, were at least peculiar. Putting to one side the question whether any of the matters alleged could constitute a contempt of court, the case which Mr Horvath sought to litigate was entirely hopeless.

That leaves for consideration, however, the question whether this proceeding should be accounted a proceeding for the purposes of s. 21(2). For reasons which I set out when considering the issue of contempt, I do not think that it should.

The eighth proceeding relied upon by the plaintiff concerns an order made by Judge Hanlon in the County Court on 18 July 2000. It appears that on 13 July Mr Horvath had attempted to file two summons. The first was in the same number as the proceeding disposed of by Judge F.B. Lewis on 8 May. That summons, directed to the Bank and the eight individuals, sought to raise again the issue of contempt. The second matter, described as an application, in substance sought a direction from a judge of the County Court that Mr Horvath be permitted to commence a proceeding pursuant to Rule 75.06; and that the Registrar seal the summons commencing such a proceeding.

On 18 July 2000 the Registrar of the County Court and Mr Horvath appeared before Judge Hanlon. Relevantly, his Honour directed the Registrar to refuse to seal the summons of 13 July, concluding that it fell within the ambit of paragraph 5 of orders made by Judge F.B. Lewis on 8 May.

The orders made by Judge Hanlon were made upon an application pursued by Mr Horvath for dispensation from the prohibitive effect of the orders made on 8 May. That application should be described as a proceeding for the purposes of s. 21(2). Notwithstanding that, had the application succeeded, what would have been commenced was a proceeding for contempt, the application itself ought not be described as a criminal proceeding. I refer to the distinction which I drew when I earlier considered the issue of contempt proceedings.

The application was evidently hopeless. It was, I consider, a brazen attempt to revive a proceeding which a judge of the County Court had denied Mr Horvath only two months earlier.

The ninth proceeding relied upon by the plaintiff concerns documents which Mr Horvath attempted to file in the County Court on 31 July 2000. The first document was headed "Notice of Application to the County Court". It was described as an application under s. 445 of the Crimes Act and was directed to the Bank's internal solicitor. It sought, in effect, that the solicitor be prosecuted under s. 445 of the Crimes Act, that section authorising a court or judge to direct that a person be prosecuted for perjury. The second document was a committal warrant directed to the Sheriff, requiring him to arrest the solicitor and have him put into prison.

The Registrar of the County Court refused to accept the documents for filing, or to seal them, on the direction of a judge. That was consistent with paragraph 4 of the order made by Judge F.B. Lewis on 8 May 2000. I note from the Registrar's file note dated 31 July[33] that Mr Horvath had produced a copy of the order of 8 May for the Registrar's reference at the counter.

It is arguable that Mr Horvath did institute a proceeding on 31 July 2000, in that he attempted to file documents, and in order to do so sought an appropriate direction from a judge. It might also be said that the application was not a criminal proceeding because it sought no more than permission to commence the substantive proceeding; and that, if it be necessary to consider the substantive proceeding, such proceeding should not be characterised as criminal both by reason of its form and because s. 445 of the Crimes Act does not create a substantive offence.

I think, however, that I should not hold that Mr Horvath instituted a proceeding within s. 21(2) on 31 July. Unlike the situation on 13 July he did not file a summons seeking a direction that he be permitted to commence proceedings. Rather, he simply attempted to file documents and his attempt was unsuccessful. I do not think that the unsuccessful attempt should be accounted the institution of proceedings. It is not then to the point that this was simply a hopeless attempt to revisit matters that had long ago been resolved against him.

The tenth proceeding relied upon by the Attorney-General was a summons dated 21 November 2000 which Mr Horvath attempted to file in the County Court. That document referred to s. 74 of the Corporations (Victoria) Act 1990 and to the offence created by s. 43 of the Crimes Act 1914 (Cth). The latter section creates the offence of attempting to obstruct, prevent, pervert or defeat the course of justice in relation to the judicial power of the Commonwealth. Section 74 of the Corporations (Victoria) Act makes Part III of the Crimes Act 1914 (which includes s. 43) applicable as a law of Victoria for the purposes of Part III of the ASC Law of Victoria.

The summons was directed to the eight persons whom Mr Horvath had periodically attempted to bring to court over a period of years. It sought orders of the court that the Australian Federal Police and the Commonwealth Director of Public Prosecutions prosecute the eight persons, that the Australian Federal Police obtain warrants for the arrest of those persons and that they be committed to prison. The legislative warrant for this action was said to be the two provisions to which I referred a few moments ago. The conduct of the eight individuals alleged to require such action was the same conduct which in the past had founded the proceedings for contempt and perjury. Nowhere, so far as I can see, did Mr Horvath attempt, either by his summons or by his affidavit in support, to explain his reference to Part III of the ASC Law of Victoria.

Thus far I have referred to the main substantive content of the summons and affidavit in support. But it is important to note that both by his summons and in his affidavit in support Mr Horvath sought leave "to file and serve in this proceeding". It is, I think, apparent that thereby he was seeking a favourable direction in terms of the order made on 8 May 2000 by Judge F.B. Lewis. But he did not obtain such a direction; for on 21 November 2000 Judge F.B. Lewis made an order directing the Registrar to refuse to seal summons on the grounds that the same was an abuse of the process of the court.

It appears to me that Mr Horvath should be taken in the circumstances to have instituted a proceeding for the purposes of s. 21(2). It was an application for leave to file the summons of 21 November. It is unnecessary for present purposes to consider the nature of the substantive proceeding - though the Court of Appeal in fact did so. It is enough to conclude that the application itself should not be accounted a criminal proceeding. Its success would not itself have resulted in the imposition of a criminal sanction.

The application was evidently hopeless. It was founded upon allegations of misconduct that had already been the subject of court determination adverse to Mr Horvath. There were, moreover, at the least very large questions about the relevance of s. 43 of the Commonwealth Crimes Act, and the obscure reference to Part III of the ASC Law of Victoria. Moreover, and most importantly, Judge F.B. Lewis gave his direction on the ground that the summons was an abuse of the process of the court.

The eleventh proceeding relied upon by the plaintiff was a summons filed on 23 November 2000 seeking leave to appeal from the order made by Judge F.B. Lewis on 21 November.

Mr Horvath's application was heard on 8 December 2000 by Buchanan and Chernov JJA. It was dismissed with costs. Buchanan JA said this:

"In my opinion it is clear that his Honour was correct in upholding the refusal of the Registrar to seal the originating process. The proceeding is misconceived in various ways, not the least of them being that the proceedings did not take the form of criminal proceedings but sought action by criminal enforcement authorities who were not defendants to the proceedings. Further, neither the summons nor the supporting affidavit disclosed any facts constituting any offence. The proceedings could not succeed, even assuming the truth of the facts alleged in the accompanying affidavit. In my opinion the proceedings are clearly a nullity and an abuse of process..."

I think it clear that the appeal should be regarded as a proceeding for the purposes of s. 21(2). Even if the proceeding which Mr Horvath sought to initiate, had leave been granted, was properly described as a criminal proceeding - and Buchanan JA was clearly of contrary opinion - the appeal itself could not be regarded as a criminal proceeding. Had it succeeded, its only outcome would have been to permit the initiation of the proceeding.

The application for leave to appeal was evidently hopeless. That was because, as Buchanan JA said, the proceeding which Mr Horvath sought to commence was itself "clearly a nullity and an abuse of process".

The twelfth proceeding relied upon by the Attorney-General was an application said to have been initiated by Mr Horvath in the present proceeding. Mr Caleo handed me a copy of the document, which on its face suggested that it had been faxed to the Secretary to the Listing Master on 9 April, in anticipation of a hearing before the Listing Master on 10 April.

Notwithstanding appearances, however, no faxed copy of the document is on the court file. Moreover, neither the court record of the hearing which in fact took place on 10 April nor the Master's authenticated order contains any reference to it. There is on the court file a bundle of documents faxed by Mr Horvath to the Secretary to the Listing Master which bear a date received stamp 9 April. Those documents were apparently intended to support an application that the Attorney-General's originating motion be set aside. So far as I can see, whatever application was intended to be made in reliance upon those documents was not entertained either on 10 April.

It is certainly possible that the application upon which Mr Caleo relied was faxed to the court, and that for some reason it went astray. Certainly it is the fact, upon an examination of the court file, that Mr Horvath faxed many documents to the court, documents not readily comprehensible and having an overlapping effect. Perhaps one document that he faxed was simply understood on cursory inspection to be a copy of a document already faxed. But that is speculation, and I should not speculate.

In the event, I have concluded that I should not take the foreshadowed application into account in determining the issues which fall for my consideration. That is so despite my being satisfied that the document was in fact served upon the plaintiff's side. I should only add that, had I been satisfied that the application had been instituted, I should have concluded that it was a proceeding within s. 21(2), notwithstanding that it was an application made whilst the proceeding in which it was issued remained extant. It sought two things: first, "interlocutory and final judgment for detention of goods"; and second, that Mr Horvath have the right to appoint the Director of Public Prosecutions "to prosecute the instigators of this proceeding for attempting to pervert justice".

The first claim to relief sought recovery of possession of Lot 5, deletion of the instrument of mortgage, the setting aside of the bankruptcies of Mr Horvath and his wife, refund of moneys paid to the Bank, and so on and so forth - in other words, the relief sought on many earlier occasions by different proceedings. Optimistically, the document concluded "Take notice this documents being prepared by the defendant who respectfully requires the plaintiff consent".

The second claim to relief sought an impossibility - that is, intervention by the court to appoint the Director of Public Prosecutions to take steps in respect of persons (presumably the eight persons who Mr Horvath has repeatedly proceeded against in the past) as "the instigators of this proceeding".

Had I been satisfied that this proceeding had been instituted, I should also have been of the clear opinion that it was utterly hopeless.

The thirteenth proceeding upon which the plaintiff relied was a summons filed by the defendant in this proceeding on 31 July - that is, the first day of the hearing. Mr Caleo initially objected to my granting leave to the defendant to file the summons, submitting that it contained irrelevant and scandalous material. But he did not press that submission - foreshadowing, however, his intention to make a submission that this was an additional proceeding for s. 21(2) purposes.

I made it clear to Mr Horvath[34] that counsel for the Attorney-General would make that submission if Mr Horvath successfully pursued his application to file the summons. I asked Mr Horvath whether he nonetheless wished to file the document. He said that he did, and I permitted him to do so.

The summons filed by Mr Horvath, with leave, was supported by his affidavit sworn 18 July. The summons alleged, as against the Attorney-General, a charge of contempt of court, and a breach of s. 42 of the Commonwealth Crimes Act. It alleged, in substance, that the Attorney-General had been party to a conspiracy to defeat justice. The basis upon which relief was sought was made apparent both by the summons and Mr Horvath's affidavit. It was that all proceedings which originated from what I have called the principal proceeding were a conspiracy to defeat justice, in particular by reason of ss. 49-51 of the Supreme Court Act.

Although the summons was interlocutory, in the sense that it was initiated prior to the trial of the present proceeding, its character was such that it should be characterised as a proceeding for the purposes of s. 21(2).

I next have no doubt that it should be regarded as having been utterly hopeless.[35] It demonstrated the lengths to which Mr Horvath is prepared to go to pursue his agenda.

The summons should not be regarded as a criminal proceeding insofar as it sought to raise an allegation of conspiracy by the Attorney-General to defeat the course of justice. As with the earlier summons considered by Buchanan and Chernov JJA, at the least its form was defective for such a purpose.

There remains, however, the allegation of contempt of court. The hopelessness of the charge should not be confused with characterisation of the proceeding. So, for reasons previously described, I think that I should treat the proceeding as being in part criminal, and thus outside the purview of s. 21(2).

I do not ignore the fact that, by reason of the order made by Beach J in January 1998, it was necessary for Mr Horvath to obtain the dispensation of the court in order to file the summons. Counsel for the Attorney-General did not, however, rely upon the application as distinct from the summons as filed. Moreover, notwithstanding Mr Horvath's determination, despite my warning, to file the document, it might be said that I facilitated the development of a situation in which Mr Horvath was confronted by yet another proceeding upon which reliance was placed in support of the present application. That is a second reason why, in my opinion, the summons filed on 31 July should not be taken into account for s. 21 purposes.

It only remains to say, as a matter of narrative, that Mr Horvath has pursued his campaign recently in the Federal Magistrates' Court. His application in that Court to have the bankruptcies of himself and his wife set aside, to recover possession of the land and for a very large amount of compensation failed; and on the application of the Bank and his trustee in bankruptcy he was held to be a vexatious litigant, with orders being made accordingly.

Having taken what is, I consider, a view of the matters relied upon by the Attorney-General which is most favourable to Mr Horvath, I am nonetheless of the clear opinion that, having regard to the principles which I earlier outlined, he has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings within s. 21(2). In reaching that conclusion I have taken into account the proceedings numbered 1, 2, 3, 4, 5, 6, 8, 10 and 11 in Mr Caleo's submissions. I have not relied upon proceedings instituted in non-State jurisdictions. If I had done so, they would have strengthened my already clear view that the proceedings instituted in the State jurisdiction should properly be characterised as the habitual and persistent and without reasonable ground institution of legal proceedings; moreover, of proceedings that should be characterised as vexatious.

The Attorney-General having satisfied me of each of the matters required to be proved under s. 21(2) I consider that I should exercise my discretion to make an order declaring Mr Horvath to be a vexatious litigant. The proceedings which I have taken into account in concluding that the requirements of s. 21(2) have been made out show that Mr Horvath has for a period of quite some years waged an unrelenting, ingenious and unfounded campaign against the Bank and the various individuals. In doing so he has made much use of court time. As one door to his campaign has been closed, he has sought to open another. I have no doubt at all that unless an order is made Mr Horvath will continue his campaign, to the detriment of the resources of Victorian courts, and to the unjustified distraction of (and cost to) the Bank and the individuals to whom I have earlier referred.

I should add this: in the course of his submissions, in answer to questions that I asked him, Mr Horvath indicated that from his standpoint there remained unfinished business, that is -

"to see what the court be willing to give for all the damages what, what the bank has done to me, and to my family."

I indicated to Mr Caleo my tentative view that what Mr Horvath had said, it having been made by way of submission and in answer to questions that I asked, should not be used by me in reaching a conclusion (if it became necessary) as to the proper exercise of my discretion, on the footing that to do otherwise would be unfair to Mr Horvath. In response, Mr Caleo pointed out that in the Federal Court proceeding to which I have earlier referred Weinberg J did make reference to and clearly relied upon statements that Mr Horvath had made openly in the course of that proceeding. He went on to submit, however, that I would be able to draw an inference about possible future actions by Mr Horvath from evidence before me.

Essentially for the reasons that I indicated in debate with Mr Caleo I have ignored what Mr Horvath said to me in the course of his submissions. Had I given regard to what he then said it would, of course, have tended in favour of my making the order which in any event I am satisfied must be made.

Mr Caleo submitted that I should make an order precluding the defendant from continuing or commencing any legal proceedings in the court, an inferior court or tribunal. He submitted that, notwithstanding that the proceedings commenced by Mr Horvath have all been concerned, in one way or another, with the circumstances which gave rise to the principal proceeding, that proceeding and its consequences, nonetheless there would be great difficulty in framing an order operating by reference either to the identify of possible defendants to future proceedings or by reference to the subject matter of future proceedings. He pointed out, fairly, I think, that Mr Horvath's ingenuity has been such that it was difficult to predict all the persons who might be potential defendants to future proceedings. He further submitted that an attempt to frame an order by reference to proceedings that directly or indirectly related to or arose out of or were in connection with the subject matter of the principal proceeding and its federal aftermath would lack precision, and so create difficulties for a registry in which Mr Horvath sought to institute a proceeding.

Notwithstanding the force of those submissions I consider that an order should be made in more limited form than was proposed by Mr Caleo. I consider that the limitation is best applied by reference to the identity of persons in respect of whom Mr Horvath may continue or institute proceedings. The persons in respect of whom the prohibition should apply are, in my opinion, the Bank, the eight individuals against whom Mr Horvath has in the past proceeded, the Attorney-General for the State of Victoria, the Sheriff of the Supreme Court of Victoria from time to time and past, present or future members of his staff, the Victorian Government Solicitor from time to time and past, present or future employees of the solicitor, and also Mr S.A. Glacken of counsel and Mr Caleo.

Concerning counsel, I should say this: first, Mr Glacken has at times acted as counsel for the Bank and for Mr Horvath's trustee in bankruptcy; and he was referred to, in a somewhat confused and ambiguous way, by Mr Horvath in his oral submissions. Second, Mr Caleo was said by Mr Horvath, before me, to be "in contempt of court with his submission to try to seduce me to accept the court order on the basis what they have always been made, or Lot 5, which I have never purchased..."

I am conscious that some of the persons whom I consider ought be named in the order have not hitherto been defendants in proceedings brought by Mr Horvath. I am also conscious of the fact that my order will only have effect with respect to civil proceedings. Even so, I consider that the order which I intend to make is the bare minimum.

The effect of my intended order under s. 21(3) would be in the ordinary course enough to dispose of the summons filed by Mr Horvath on 31 July naming the Attorney-General as respondent. Even so, I think it is prudent, and proper, to dismiss that summons by discrete order.

1. Gabor Horvath, senior, be declared to be a vexatious litigant.

2. Gabor Horvath, senior, must not, without the leave of the court, an inferior court, or a tribunal constituted or presided over by a person who is a barrister and solicitor of the court, continue or commence any legal proceedings in the Court, inferior court or tribunal against the following persons:

(j) The Attorney-General for the State of Victoria;

(k) The Sheriff of the Supreme Court of Victoria from time to time and any past, present or future member of his or her staff;

(l) The Victorian Government Solicitor from time to time and any past, present or future employee of the Victorian Government Solicitor;

3. The defendant's summons filed 31 July 2001 be dismissed.

[2] Attorney-General (Vic) v Lindsey, Kellam J, judgment 16 July 1998, unreported.

[3] Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378 at 390.

[4] Gallo v The Honourable the Attorney-General, Full Court of the Supreme Court of Victoria, judgment 4 September 1984, unreported, per Starke J at 11.

[8] Supreme Court of South Australia, unreported, judgment 20 February 1997.

[11] Attorney-General v Jones [1990] 2 All ER 636.

[13] Mephistopheles Debt Collection Service v Lotay [1994] 1 WLR 1064.

[18] Gallo, supra, per Starke J at 7; see also Kay, supra, per Ormiston JA at [1].

[19] This must be so at least in a case in which it is claimed that, considered objectively, proceedings were vexatious. If a more comprehensive enquiry is conducted, it should not be confined to the initiating court document. The court is entitled to examine the whole history of a matter relied upon by the Attorney: Re Vernazza [1956] 2 All ER 200 at 201-202 per Lord Parker CJ.

[20] Gallo, supra, per Starke J at 8-9.

[21] Paraphrasing Lord Parker CJ in Re Langton [1966] 1 WLR 1575 at 1578, cited with approval by Yeldham J in Hunters Hill at 485.

[22] Paraphrasing Gray J at first instance in Gallo, cited with approval by Starke J in the Full Court at 9.

[25] Though as to its effect see The Broken Hill Proprietary Company Ltd v Dagi and Ors [1996] VicRp 62; [1996] 2 VR 117 at 131 per Winneke P, at 142-143 per Brooking JA and at 170-173 per JD Phillips JA.

[27] See Dagi, supra, per Winneke P at 126; contrast the judgment of Brooking JA in the same case at 148.

[28] At [8]. See also Witham, supra, at 851 per Brennan, Deane, Toohey and Gaudron JJ.

[29] Being Lot 5 on Plan of Sub-Division 209632N, the land described in Certificate of Title Vol. 9801 Folio 263.

[30] By that time a second Warrant of Possession had issued at the request of the Bank.

[32] In part the setting aside of a default judgment which had long ago been set aside.

[35] In fact, it was not proceeded with by Mr Horvath during the course of the trial.

Prosecutions Act 1994

Victoria Crime Act 1914

Victoria Crime Act 1958

Incitement Crime Act 1958

"... one of [counsel's] submissions was that proceedings in courts other than Queensland courts could be regarded as 'legal proceedings' for the purpose of determining whether a person had frequently and without reasonable grounds instituted legal proceedings. It was conceded that a consequence of this argument was that the Supreme Court might make a declaration, for example, in a case where a person had instituted numerous proceedings in the Federal Court or the courts of other States without reasonable grounds and it was apprehended that he was likely to commence actions in Queensland. I do not accept this proposition. The jurisdiction given by the Vexatious Litigants Act is a protective jurisdiction and it is the frequency of the proceedings brought without reasonable grounds in Queensland courts which enlivens it. However once the elements of frequency and lack of reasonable grounds are established it is legitimate, in a case where it is necessary, to have regard to the fact that groundless proceedings have been brought in other jurisdictions and what their outcome was to aid in establishing that proceedings brought in Queensland are vexatious. It may be, as Toohey J. thought in Jones v. Skyring [1992] HCA 39; (1992) 66 A.L.J.R. 810, 813, that the requirement that proceedings be vexatious in addition to being 'without reasonable grounds' is tautologous in most practical situations. However in determining the question of fact whether proceedings instituted in Queensland courts are in fact vexatious (In re Vernazza [1960] 1 Q.B. 197), the fact that such proceedings are cumulative upon those commenced in another jurisdiction may strengthen the conclusion that the proceedings are vexatious if that is in dispute.[6]

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