Attorney-General for the State of Victoria v Kay [1999] VSC 30

Supreme Court of Victoria|1999-02-23|Before: Eames J

The application for an extension of time in which to bring these proceedings by originating motion was heard and dismissed by Master Wheeler on 6 May 1997, from which decision Mr Kay appealed, and that appeal was heard by Byrne J. who gave judgment on 24 October 1997 allowing the appeal and granting the extension of time. Byrne J proceeded to hear and adjudicate the substantive issue, namely, the application to quash the orders of the magistrate. His Honour granted Mr Kay's application, in part, by setting aside one of four orders made by Magistrate MacDonald on 11 June 1996. Byrne J, noting that the application for security was based on the fact that Mr Kay was a resident of Queensland, held:

"The magistrate was to my mind very properly concerned that an applicant who comes before the court, particularly an applicant who is outside its territorial jurisdiction, should not be shut out from approaching the court for justice which the court will dispense. But, at the same time she was properly conscious of the fact that an applicant should not use this right unnecessarily to harass a defendant. So the case before her, it seems to me that she was quite entitled to form the view that, if the application were unsuccessful and if an order were thereafter made against Mr Kay, he would not have paid that order. In those circumstances it is not possible for me to say that her discretion miscarried in seeking to prevent that occurrence on this, the fourth occasion the matter was before the Magistrates' Court. Accordingly, I find no fault in paragraph 1 of her order."

Byrne J. did not make a finding that these were vexatious proceedings, and, in fact, granted Mr Kay's application for review, by setting aside part of the order of the magistrate. This proceeding can not, therefore, be regarded as being vexatious, in my view. It is, however, pertinent to note that before the proceedings came before Byrne J. in the form in which they did a first attempt by originating motion had been struck out by a judge of this Court, as incompetent. Leave had then been given to amend the proceedings, so that they constituted an application for judicial review, but that proceeding was subsequently also struck out, as being out of time. On appeal from that decision Byrne J. then granted what he called "an indulgence" by extending time and, so, finally, the application, which still failed to comply with the Rules (as Byrne J. noted, granting "a further indulgence") as to the grounds of review, was heard and determined. What this demonstrates is not that the defendant's proceedings were vexatious, but the waste of resources which flowed from his failed efforts, as a non-lawyer, to choose the correct form in which to bring proceedings, and to do so within the time limits set by the Rules.

(d) The fourth proceeding by originating motion

The next proceeding by originating motion which is relied upon is that issued on 28 February 1997, in which the defendants were "Victoria Police and the Department of Public Prosecution and Justice Wodak of the Victorian County Court". This related to the refusal of an appeal brought by Mr Kay from a conviction, recorded in Dandenong Magistrates' Court on 15 August 1996, for breach of an intervention order. Magistrate Mr P. Rodda M. had dealt with two counts of stalking and five counts of breach of the intervention order and sentenced Mr Kay to eight months' imprisonment with four months of that sentence to be suspended. Mr Kay had already been in custody at the time when that order was made. He appealed against that decision, to the County Court, and a bail application before Judge Kimm was dismissed on 14 August 1996.

The appeal against Mr Rodda's orders was to be heard by Judge Wodak in September 1996 and it actually came on for hearing after the defendant had served the whole of his sentence. When the case came before Judge Wodak Mr Kay withdrew his appeal, in the mistaken belief, he says, that he could bring an alternative appeal by way of originating motion in the Supreme Court. He attempted to do so by an originating motion which was heard by McDonald J. on 30 June 1997.

The grounds for the originating motion, in broad terms, involve complaints both against Judge Wodak and also against the decision of the magistrate. It was asserted that Judge Wodak was "biased and hostile" to the plaintiff because the plaintiff had been staging demonstrations outside the court (against the legal system), which information had been conveyed to the judge. Furthermore, the bias had been demonstrated by the fact that Mr Kay had been threatened with being charged with contempt of court during the hearing before Judge Wodak, thus leading Mr Kay to announce that he would withdraw his appeal.

In the grounds of his originating motion Mr Kay complained that to have been sentenced to a substantial term of imprisonment "for a mild breach of an intervention order, out of concern for the welfare of his children he has been denied for three years is absurd and draconian".

When the proceedings by originating motion came before McDonald J. on 30 June 1997 it was pointed out to the defendant that by abandoning his appeal before Judge Wodak he had effectively removed any prospect of successfully bringing a claim by way of originating motion. Mr Kay was given leave to discontinue the originating motion proceeding, and did so.

95 An examination of the originating motion and the affidavit filed in its support demonstrates that Mr Kay was endeavouring to argue on his appeal to Judge Wodak (and sought to argue pursuant to the originating motion) that the original intervention order was invalid, and had been obtained by "legal tactics, lies and blatant perjury", and had been supported by a conspiracy involving police, who made false arrests of Mr Kay for alleged breaches of the order. Counsel for the Attorney submitted that the material filed with this originating motion demonstrated that the defendant is obsessed with the litigation and simply wishes to re-litigate earlier decisions, notwithstanding orders that have been made, on appeal, confirming the order.

96 The errors of law identified in the originating motion, are, for the most part, nothing more than a recitation of facts, and arguments on questions of fact, advanced by Mr Kay, but they do amount to a complaint of bias against Judge Wodak. In effect, the proceedings asserted that Mr Kay had been forced to withdraw the proceedings before Judge Wodak because his Honour had been biased against him, and had indicated that he would make evidentiary rulings which displeased Mr Kay. In the supporting affidavit Mr Kay separately complained about the conduct of the magistrate whose orders he was attempting to overturn. Thus, he complained that Magistrate Rodda was biased in the hearing because it had been reported to him by police that Mr Kay had threatened Mrs Kay with an incident such as the Port Arthur massacre, an allegation which Mr Kay strongly denied. He claimed that Magistrate Rodda had refused to regard as relevant, and a precedent, the fact that a previous breach of an intervention order had been set aside on appeal to the County Court on a hearing by Judge Kelly on 20 November 1995.

97 The originating motion was poorly pleaded and was couched in argumentative terms. Counsel for the Attorney suggested that the terms were contemptuous, but having regard to other material emanating from Mr Kay the documents are positively respectful. I think it likely that Mr Kay was not intending these documents to be scandalous. He proclaims "conspiracy" and declares that there has been "considerable malice against him by the judiciary" because that is what he genuinely believes to be the case, the possibility that his perception of events might be distorted not being one to which he gives any weight.

98 The pleadings were plainly deficient, but one should be slow to conclude that deficiencies in the pleadings of an unrepresented party thereby constitute vexatious litigation. It is increasingly common for litigants to appear unrepresented in the courts, including the Supreme Court. Inevitably, the pleadings drawn by unrepresented parties are deficient for one reason or another. Because the litigant is often incapable of objectivity, the manner in which the pleading is expressed is sometimes offensive. But it is not offensive, per se, for a litigant to claim that he or she has been the victim of judicial bias, or to have been treated unfairly by the courts. Such complaints, when made, are dealt with by appellate courts on their merits.

99 The mere fact that Mr Kay withdrew the originating motion is not sufficient to demonstrate that the proceeding was vexatious. Mr Kay was attempting to overturn a criminal conviction. His decision to abandon the appeal before Judge Wodak proved to have been very unwise, as he left himself without remedy. Those are the sort of errors which unrepresented people are prone to make. But the question whether he had been denied procedural fairness before his Honour was never tested, nor, by virtue of the withdrawal of his appeal before Judge Wodak, was the validity of his conviction tested. I am not presuming that there was any justification for Mr Kay's complaint of bias against Judge Wodak, but likewise there is no basis for assuming that there was none. The issue was never litigated. If his complaint was to have been properly tested then proceedings by way of originating motion, properly pleaded, would have been entirely appropriate.

100 The Court must be careful to ensure that Mr Kay is not being doubly penalised by virtue of the fact that he was not represented by counsel. His unrepresented status undoubtedly was a factor leading to the apparent warning from the judge that his conduct bordered on contempt of court, but, additionally, having suffered in that way because he was unrepresented, his decision to abandon the appeal was one which would probably not have been taken had he been represented.

101 This proceeding can not be viewed in isolation, but has to be assessed in the light of the totality of litigation initiated by Mr Kay. Viewed in that way, it clearly suggests that Mr Kay had by this time become so imbued with a sense of injustice and anger against the court system that it was increasingly likely that any further litigation initiated by him, without benefit of counsel or solicitor, would be vexatious, and would simply seek to re-litigate the facts behind the orders made years earlier. In itself, however, I would not regard this litigation as having been shown to be, vexatious.

Having discontinued the originating motion before McDonald J, Mr Kay then returned to the County Court and attempted to revive the appeal which he had abandoned before Judge Wodak, by making an application, in that respect, to Chief Judge Waldron. That was refused by Chief Judge Waldron, and that, in turn, led to the next originating motion being issued, on 24 November 1997, when an originating motion naming the Chief Judge as defendant was issued, complaining that the Chief Judge had refused the application made by Mr Kay for the re-instatement of his appeal against conviction and sentence for breach of the intervention order.

Mr Kay complained in the documents filed with the proceedings that that decision was a denial of natural justice, and he complained that at the hearing before Judge Wodak he had not been advised that if he were to withdraw his appeal in the County Court he would effectively deny himself any opportunity to challenge the decision made in the Magistrates' Court. It is clear from the documents, however, that Mr Kay was seeking to use this proceeding as part of his campaign to re-litigate the original intervention order.

This originating motion which, in common with many of his pleading documents, is hand-written by Mr Kay, is a rambling document, calling on the court to investigate the denial of natural justice which led to the result that his wife obtained the original intervention order ex-parte. The documents also complained of "corrupt legal tactics" used against him, to thwart his attempts to have the issue re-litigated, by the tactic of having his wife give evidence. In effect, this originating motion once again re-stated the substantive complaint as being that he had been denied access to his children and was unfairly made subject to an order which was impossible for him to comply with. He was obliged, he said, not to go within a five kilometre radius of his ex-wife at any time, but because he did not know where she lived he may well breach the order inadvertently, he claimed. That, therefore, made the order invalid, he claimed. The documents filed with his application asserted that the conviction for breach of the intervention order was unfair in that the substance of the complaint was that he had made threats to his wife in letters, whereas he had written to her in a belief, on his part, that the intervention order which had been made against him was invalid, in its entirety. Thus, he was only acting in the interests of his children when he sent the letters.

As to the originating motion in which Chief Judge Waldron is defendant and which is yet to be disposed, counsel for the Attorney-General submitted that although those proceedings have not been struck out, the terms of the originating motion and the affidavits accompanying them are such as to constitute scandalous and embarrassing material and, therefore, vexatious litigation, and demonstrate, on their face, that the proceedings are totally devoid of legal merit. Notwithstanding the fact that no order has been made striking out this originating motion it is plain that Mr Kay seeks to use the proceedings to re-argue the merits or lack of merits of the original intervention order, a matter concluded by the appeal process. In that respect it is quite properly to be taken into account by me, when having regard to whether the proceedings overall demonstrate that Mr Kay is a vexatious litigant.

The next group of proceedings relied upon by the Attorney-General in support of the application are those taken by Mr Kay against various firms of legal practitioners.

Between 14 December 1995 and 3 April 1996 Mr Kay issued many proceedings against firms of solicitors. With the exception of one action - a claim brought against the firm Hunt, McCullough, Kollias & Co which was a proceeding relating to a conveyancing matter - all of the actions against solicitors allege that in one way or another - either by virtue of their failures when acting as solicitor for Mr Kay or, alternatively, by virtue of their successes when acting for Mrs Kay - they contributed to the result that Mr Kay, unjustly, was deprived of access and custody of his children.

The claim against the firm Law Partners concerns proceedings in the Family Court in which Law Partners represented Mr Kay. The statement of claim which accompanied the writ is a confused, argumentative, document, but, in effect, alleges that a member of the firm was incompetent and negligent in representing Mr Kay on various occasions in the Family Court. The statement of claim amounts to a recitation of allegations of fact which Mr Kay alleges should have been put in the course of cross-examination by the solicitor representing him, and of complaints, both specific and general, that the solicitor was unable to stand up to the solicitor for Mrs Kay, and to be as effective as the solicitor for Mrs Kay.

Among many complaints, the details of which do not require listing, one major complaint was that the solicitor from Law Partners, who represented him, accepted an erroneous chronology for the purpose of the hearing in the Family Court, that document having been prepared by Mr Glover, the solicitor for the wife.

The preparation and filing of an agreed chronology is a requirement of the Family Court. There is no doubt that that chronology in this case was potentially misleading, in one respect, in that the dates of two items were transposed, thus creating, possibly, the impression that Mr Kay had acted in breach of an order of Frederico J., when he had not done so. (In its later judgment, the Full Court of the Family Court, having carefully considered this complaint, concluded that the trial judge had not been misled, at all, by the error in the chronology).

In its defence, the firm denied the allegations and pleaded that the proceedings were scandalous, frivolous and/or vexatious and were an abuse of the process of the court. The defence noted that on 28 September 1995 the Family Court had ordered that, without first obtaining leave from that court, the plaintiff make no further applications in respect to the custody of his children. The solicitors pleaded that the plaintiff had also been unsuccessful in various attempts in the Magistrates' Court and the County Court to overturn the intervention order.

Counsel for the Attorney General submitted that the proceeding brought against Law Partners was one of a series of proceedings by Mr Kay brought for the purpose of harassing persons, or else, constituting an improper attempt to re-litigate matters, in the Supreme Court, which had been determined in the Family Court, or matters relating to the intervention order which had been decided by the Magistrates' Court or the County Court, and for which the appeal process had been exhausted.

On application by Law Partners, Master Wheeler struck out the plaintiff's statement of claim and dismissed the proceedings.

Master Wheeler dealt with three sets of proceedings on the same occasion, namely, an action against Law Partners and also actions against Piesse Clarebrough and Brian Slattery and Co. In my opinion, the criticisms made by counsel for the Attorney-General are valid, generally, with respect to each of those proceedings.

In his reasons for decision Master Wheeler, on 18 September 1996, said there was, in each proceeding, an almost overwhelming conclusion that each proceeding had been brought in an attempt to re-litigate matters already disposed of "to vent his spleen on solicitors who have not achieved the result Mr Kay would have preferred". Master Wheeler described a statement of claim in the Law Partner's case as being quite confusing, containing no dates and otherwise being inadequate.

As noted above, Master Wheeler was also dealing with an application to strike out the proceedings in the action brought against Brian Slattery & Co, and also the firm Piesse Clarebrough.

The action against Slattery & Co related to the occasion on which Mr Kay was charged with threatening to kill Mr Glover, which led to the arrest of Mr Kay on 28 April 1994. The statement of claim in this action complained that Slattery & Co were negligent in handling those criminal charges on his behalf, and also in handling the application made by Mrs Kay for a final intervention order, which was received by Mr Kay whilst he was on bail for those charges. The statement of claim complained that the handling by the solicitors of the plaintiff's bail application "was a disgrace and a fiasco". He complained that failures to properly advise him with respect to criminal charges led to his later plea of guilty to one count of threatening to kill Mr Glover and that admission was used against him in subsequent proceedings relating to intervention orders. There were various other complaints made with respect to this firm's handling of the affairs of Mr Kay, including the failure to ensure that he was granted bail. He complained that on the advice of these solicitors he agreed to the making of a permanent intervention order against him.

In fact, Mr Kay had terminated the retainer of this firm prior to his entering the plea of guilty, and when he did so he was then being represented by the firm Galbally Fraser & Rolfe, which firm was also sued by Mr Kay, as was the firm which succeeded them, Piesse Clarebrough.

The compensation and damages sought in the statement of claim were with respect to a claimed loss of income, emotional stress, and harm to Mr Kay's health, but Master Wheeler in striking out the proceeding as an abuse of process held that the plaintiff could not demonstrate that he had suffered any damage.

Also on 14 December 1995, Mr Kay issued a Supreme Court writ against the firm Galbally Fraser & Rolfe, for negligence, relating to that firm's conduct of proceedings with respect to the charges of threatening to kill Mr Glover and also counts of threatening to cause serious injury. This firm succeeded Slattery & Co as Mr Kay's solicitors The statement of claim, once again, recites various aspects of the preparation of his case which were inadequate, according to Mr Kay, including failures to make successful applications for bail on his behalf, failure to have one of the partners of the firm appear personally to represent Mr Kay, failing to adequately advise him as to an appropriate plea to the charges, and allowing two separate events to be included in one charge.

Once again, the statement of claim alleges that the damage which flowed from the alleged negligence was that the defendant, Mr Kay, had been unable to operate his business and had had no contact with his children for two years. Furthermore, criminal convictions had been used against him in Family Court proceedings.

The proceedings against Galbally Fraser & Rolfe were dismissed by order of Master Wheeler on 13 September 1996. Quite apart from his complaint that the decision of Master Wheeler was wrong insofar as he described this proceeding as an abuse of process, Mr Kay complained before me that the order of Master Wheeler should not have been made, in any event, because it was unjust that the strike out application had occurred in his absence.

As emerged in affidavits and oral evidence called before me on behalf of the plaintiff, the application to strike out the proceedings had been adjourned on very many occasions - on more than one of those occasions at the request of Mr Kay. On 13 September 1996, when the matter finally was dealt with by Master Wheeler, Mr Kay did not attend, because he was then in custody in Wron Wron Prison. An attempt had been made to have Mr Kay present at the hearing, by serving a Gaol Order on the Wron Wron Prison, so as to have Mr Kay attend. Mr Kay complained to me that this was a deliberate tactic to force him to drop his proceedings because the solicitors knew that Mr Kay had a particular aversion to being held in Pentridge Prison (and, I presumed, the Melbourne Remand Centre) . He was a vegetarian, and also suffered claustrophobia. Were the Gaol Order to be complied with he would have been brought to Melbourne for the hearing before Master Wheeler and would have been located overnight at the Melbourne Remand Centre.

A prison officer contacted the solicitor who was acting for Galbally Fraser & Rolfe and conveyed Mr Kay's message that rather than being brought to Melbourne on a Gaol Order he would drop his proceedings against the firm. The witness, Ms Leone Thompson, a solicitor who was acting for Galbally Fraser & Rolfe in its defence of Mr Kay's proceedings, contacted Mr Rolfe and discussed that proposal, and Mr Rolfe advised her that it would not be proper to have Mr Kay withdraw his proceedings in such circumstances. Accordingly, the Gaol Order was cancelled and Mr Kay was not brought to Melbourne and was therefore not present for the hearing. The hearing proceeded in his absence and the strike out order was made by Master Wheeler. Master Wheeler did not publish formal reasons for his decision but he held that the case was "clearly an abuse of process".

It is true that it is an unusual step to have a Gaol Order issued in civil proceedings. Mr Kay urged upon me that it was a step taken knowing that it was unlawful, and was taken simply to intimidate Mr Kay. I did not hear detailed argument as to the status of a Gaol Order in civil proceedings, but having heard the evidence of Ms Thompson and Mr Rolfe, as well as that of Mr Kay, I do not consider that there was any impropriety on the part of Galbally Fraser & Rolfe or the solicitors who represented them in the proceedings before Master Wheeler. I am satisfied that the firm considered it was advisable to have Mr Kay present at the strike out application, in order to prevent any further adjournment being ordered on account of his absence. Having withdrawn the Gaol Order the solicitors were no less keen to bring to an end proceedings which they saw as being totally without merit. Mr Kay complained that the solicitors had proceeded with the application to strike out his proceeding notwithstanding the fact that they must have known that he was due to be released from prison within a month or so of the hearing.

I think it is likely that the solicitors did know that Mr Kay was due to be released in a short time but decided that there had been sufficient delay for what they considered vexatious proceedings, and determined not to tolerate any further delay. Whilst it is highly likely that Mr Kay may well have appeared had he been out of custody when the hearing was conducted before Master Wheeler, I have no doubt that the outcome would have been exactly the same as that which occurred.

Mr Kay appealed against the decision of Master Wheeler with respect to the action against Galbally Fraser & Rolfe and that appeal was dismissed by Beach J. on 23 October 1996. Mr Kay appeared in person and complained about the failure to have had the proceedings adjourned. Beach J. noted that the Master's order had recited the great frequency of past adjournments, and Beach J. accepted the correctness of the opinion of the Master that it was inappropriate that there be any further adjournment, notwithstanding his awareness that Mr Kay was in custody. Beach J. noted that the appeal against the order involving Galbally Fraser & Rolfe was incompetent, as it was not issued within time. He concluded, in any event, that this proceeding also was vexatious and an abuse of process.

Given the serious nature of his complaints that he had been denied justice by the court I allowed Mr Kay's complaints as to the striking out of this proceeding to be canvassed in detail, in order that I might better understand the basis on which he asserted that his proceedings were not vexatious but had a legitimate purpose. It is not part of my function, in considering this application, to review the correctness of the decision by the Master to strike out the proceeding. There is an appeal process which addresses that question. I note, however, that having given detailed consideration to Mr Kay's complaint that he was denied justice by the striking out of this proceeding, I can see no justification, at all, for that complaint.

In my opinion, it is appropriate that I should act upon the findings both of Master Wheeler and of Beach J. that this proceeding was an abuse of process. That conclusion was reviewed by the Court of Appeal and upheld on 6 December 1996 (per Hayne and Callaway JJ.A).

The action against the firm Piesse Clarebrough also related to the charges concerning threatening to kill Mr Glover. The firm commenced to act for Mr Kay in September 1994 in the conduct of his appeal against his conviction, on his plea of guilty, for threatening to kill Mr Glover. The statement of claim asserts that on 7 June 1995, when the charges were listed to be heard, on appeal, in the County Court, the firm withdrew from the proceedings. Mr Kay claimed that that occurred because of a dispute between himself and his solicitors as to whether they would have his former wife and her friend called as witnesses in the case for the purpose of his defence to the charge of threatening to kill Mr Glover. According to Mr Kay's statement of claim, his solicitors, and counsel, declined to adopt that course. In effect, the complaint was that by withdrawing as and when they did, the firm left insufficient time for Mr Kay's new lawyer to prepare the appeal.

The further complaint against Piesse Clarebrough related to a breach of an intervention order which was dealt with in the Moe Magistrates' Court in the absence of Mr Kay, the court not having been informed that the proceedings were to be adjourned, due to a mistake by the solicitor. In his absence, Mr Kay was fined $1500 on two counts of breach of the intervention order. An appeal against that order was successful, before Judge Kelly.

The action against Piesse Clarebrough alleges that due to the negligence of the firm he had been denied contact with his children for two years, because his convictions were later used against him in Family Court proceedings. The claim for damages is expressed to be for compensation for loss of income, and for stress and harm to his health as a result of being denied his children for two years.

In his reasons for decision Master Wheeler held with respect to the Piesse Clarebrough case, that the bulk of the statement of claim demonstrated it was an action that was unlikely to succeed, however Master Wheeler, whilst striking out the entirety of the statement of claim, granted leave to Mr Kay to re-plead his allegations relating to the alleged failure of Piesse Clarebrough to make proper arrangements for the hearing to be adjourned in the Moe Magistrate's Court, or for Mr Kay to be present at court to defend the two counts of breach of the intervention order heard in his absence.

Mr Kay appealed against the decision of Master Wheeler with respect to his actions against Law Partners, Slattery & Co, Galbally Fraser & Rolfe and Piesse Clarebrough, and his appeal was heard by Beach J. on 23 October 1996. Beach J. held that he could discern no error on the part of the Master in his disposition of those proceedings and held that, in his opinion, the proceedings were vexatious and an abuse of process of the court. Mr Kay appealed from the decision of Beach J. and his application for leave to appeal was heard and dismissed by the Court of Appeal (Hayne and Callaway JJ.A.) on 6 December 1996. He then applied for special leave to appeal in the High Court and that application was refused. Although Master Wheeler did not strike out the proceeding, in its entirety, as an abuse of process, the subsequent characterisation of it as such by Beach J. was endorsed by the Court of Appeal. It is appropriate, in my opinion, that the order which I will make, restraining Mr Kay from continuing proceedings without leave of this Court, should apply to this proceeding also.

(e) Actions against Glovers and against Hardy & Co

On 21 December 1995 Mr Kay issued proceedings in the County Court against Glovers, solicitors, and Hardy & Co, solicitors. Glovers was the firm representing his former wife and Hardy & Co had been appointed in the Family Court to be the separate representative before the Family Court on behalf of the children.

In the statement of claim the allegations against Glovers were that the firm, when acting for Mrs Kay, had misled the Family Court and Magistrates' Courts and had used biased material to vilify the plaintiff and had conspired to manipulate the system of justice against Mr Kay, advancing evidence which they knew to be false and using such evidence for the purpose of having criminal charges laid against Mr Kay. The solicitor from Hardy & Co, which firm was a joint defendant in the proceedings, was also accused, individually, of misleading the court.

The statement of claim against both defendants was a poorly drafted document which fails to comply with rules as to pleading. Application was made to strike out the statement of claim as not disclosing a cause of action and as an abuse of process of the court, and as vexatious, and on 6 August 1996 Master Patkin struck out the statement of claim. Mr Kay did not appear to resist that application. Mr Kay then made application to have the order set aside on the basis that he had been in custody, having been arrested on charges of stalking, that arrest having occurred when he had attended Melbourne Magistrates' Court on 11 June 1996. Bail had been refused and the hearing of the charges had been adjourned to 14 August 1996, so he was in custody at the time of the hearing before Master Patkin.

Upon hearing the plaintiff's application, Master Patkin, on 29 October 1996, set aside his order of 6 August, reheard the matter and not only made the same order striking out the statement of claim but then went further than his original order and dismissed the proceedings, in toto, as an abuse of process and as not disclosing a cause of action.

(f) Action against Hunt, McCullough, Kollias & Co

On 3 April 1996 Mr Kay issued County Court proceedings against Hunt McCullough, Kollias & Co. This action related to a 25 lot sub-division which had been developed by Mr Kay in the area of Hastings Shire, at Somers. On one block, Lot 22, there was a sewerage treatment plant, and Mr Kay had an agreement with Hastings Shire with respect to that block, but he approached his solicitor, Mr Kollias, to re-negotiate the agreement so as to enable him to sell the property. The statement of claim, in effect, alleges that Mr Kollias negligently failed to remove a caveat from Lot 22, thus, preventing Mr Kay from selling the property. As a result of him being delayed in selling the property the value of the property dropped.

I heard evidence from Mr Kollias with respect to this matter, both orally and by affidavit. These events occurred in August to October 1992. Mr Kollias swore that he had acted according to the instructions which he had been given, and had negotiated, successfully, with the Shire Council to amend the agreement so that it was possible for the land to be sold, and that he had nothing to do with the placing of a caveat on the land. That had been done by the Hastings Shire, but the mere fact that there was a caveat on the land would not, in any event, prevent the sale of the land pursuant to the agreement.

In fact, the action against Hunt McCullough, Kollias & Co was taken to trial by Mr Kay. The trial was conducted by his Honour Judge Gebhardt on 19 February 1997. The plaintiff gave evidence and Mr Kollias also gave evidence. At the completion of all of the evidence Judge Gebhardt dismissed the action. His Honour gave no reasons for decision that appear to have been recorded. The order of the court simply records "struck out - no case to answer".

Although the form of the pleading was quite inadequate it is difficult to see how this proceeding can be characterised as vexatious litigation. The matter went to trial and was dismissed not as an abuse of process, or as disclosing no cause of action, but on the merits. Although the order stated that there was no case to answer it is clear that evidence was called on behalf of both parties. I exclude this case from those to which I have regard in considering the application of the Attorney-General.

On 14 December 1995 Mr Kay issued a writ in the Supreme Court claiming damages against Ms Sue Wilding, a Member of the Victorian Legislative Council. Those proceedings arose in consequence of a 35 page letter written by Mr Kay, which was addressed to "Dear Politician", copies of which were delivered to all politicians in Victoria and Canberra.

The document itself is defamatory, in the grossest of terms, of many citizens, politicians, judges and institutions. In it Mr Kay rails against the perceived injustice which he has suffered in his dealings with the Family Court and other courts. In the course of the wild and rambling terms of the document it contains many passages which could reasonably be interpreted as being of a threatening nature against Family Court judges, and also magistrates and politicians.

In his submissions to me Mr Kay argued that his words had been taken out of context and that he had not himself been threatening violence against any person, but had been warning that if the perceived unfairness of the judicial system was not corrected, insofar as it impacted upon fathers, then it was likely that some of those fathers (not himself) would resort to violence. It may well be that that was the intention of Mr Kay (I make no finding of fact as to that) but if that was so then this is yet another demonstration of how disastrously incompetent he is as an advocate in his own cause. (Mr Kay seems prone to having his intentions misread in this way. After I had reserved judgement in this application Mr Kay sought leave to file further material and, then, some weeks later - having had the opportunity to carefully consider his course - he did so, filing a new affidavit and many exhibits. That material, including his affidavit, contained statements which, once again, would readily be interpreted as being threatening of judges of the Family Court (and, perhaps, even myself) and statements grossly contemptuous of courts and judges. Once again, he said it was not his intention to have made any threats, and that his words had been misunderstood).

Upon receiving a copy of the offensive letter, Ms Wilding, so Mr Kay alleged, made statements in the media in which she expressed concern about the nature of the threats which had been made, and those comments were reported under the headline of "death threats" against politicians. By Ms Wilding having made such statements, Mr Kay alleged that he had been defamed by Ms Wilding. Furthermore, he alleged that "Ms Wilding had deliberately misled the Victorian Parliament by her claims and has slandered the plaintiff as a consequence".

In her defence Ms Wilding pleaded that the statement of claim was embarrassing and vexatious, disclosed no cause of action and was an abuse of the process of the court. It was further pleaded that claims as to what was stated by her in Parliament could not be pursued, as that occasion was covered by absolute privilege. Upon application before Master Evans the defendant, Ms Wilding, sought to strike out the statement of claim. Mr Kay appeared in person and an order was made on that date striking out the statement of claim but granting leave to Mr Kay to file an amended statement of claim, which was done on 21 March 1997.

On 14 October 1998 Master Wheeler struck out an amended statement of claim which Mr Kay had filed on 29 September 1998, and dismissed the proceedings, with costs. In the course of his reasons for decision Master Wheeler noted that Mr Kay had made five attempts to file a statement of claim which pleaded a cause of action known to the law, with each attempt resulting in the statement of claim being struck out. Master Wheeler was dealing with the latest attempt to file an appropriate statement of claim and concluded that that document still did not set out clearly or properly any cause of action.

"In addition to that the plaintiff, by his behaviour in court and his submissions, wants to use this proceeding to highlight inadequacies in procedures and orders of the Family Court, to force various Attorneys-General to give him statistics about molestation of children who have been deprived of contact with their fathers with a view to ultimately persuade the Queen and/or the United Nations to take some action to remedy the injustice as he sees it of being deprived access to his children. The statement of claim is so defective that it must be struck out. I am not prepared to permit any further application by Mr Kay in respect of a further statement of claim. (I accept that Mr Kay's feelings and desires to see his children are quite genuine.)"

On 21 December 1995 Mr Kay issued County Court proceedings against Mr Robin Cooper, a Member of the Legislative Assembly. The statement of claim in those proceedings is not an easy document to understand, but, in essence, the complaint made relates to an approach Mr Kay made to Mr Cooper in April 1994 seeking assistance to locate his three children. The meeting with Mr Cooper apparently followed a letter written by Mr Kay to the Attorney-General which Mr Kay, himself, in his statement of claim, characterised as being a document which was bitter in its terms and had expressed his sense of injustice "in the strongest terms". Mr Kay, in his statement of claim, complained that having asked Mr Cooper to make a photocopy for Mr Kay of another letter written by Mr Kay, which was hand-written and unaddressed and in which he was "stating clearly his anger and frustration at being denied his children", Mr Cooper had retained a copy of that letter.

Mr Kay's complaint was that the copy of the letter was handed to the police, which led to the plaintiff being arrested and charged with two counts of threatening to kill persons and one count of threatening serious injury. Bail was opposed and the letter written by Mr Kay was then used against him in later proceedings, Mr Kay said, so as to further harm his prospects of succeeding in any of his applications to gain access to, or custody of, his children.

The statement of claim alleges that as a result of Mr Cooper's actions the plaintiff had suffered financially and emotionally, being unable to operate his business because of the criminal charges, and by being convicted thereby damaging his prospects in his Family Court proceedings. Furthermore, Mr Cooper's conduct led to Mr Kay being denied contact with his children.

Application was made on behalf of Mr Cooper to have the proceedings struck out as disclosing no cause of action and as being vexatious and an abuse of process. On 22 March 1996 Judge Shelton issued a self-executing order that Mr Kay serve and file a statement of claim which disclosed a cause of action, otherwise the proceedings be struck out. Mr Kay filed what purported to be an amended statement of claim which did not cure the patent deficiencies of the original statement of claim and upon application by summons, heard on 1 August 1996 (Mr Kay not appearing, he then being in prison, as was known to the court) Judge Shelton ordered that there be judgment for the defendant against Mr Kay, with costs.

Although this proceeding was not formerly struck out as an abuse of process it was manifestly so, in my opinion.

I was referred to one additional proceeding, which was an action taken on 21 December 1995, in the County Court, against the Chief Commissioner of Police. Subsequently, a number of individual police officers were substituted for that defendant. These proceedings related to three separate incidents in which Mr Kay alleges that police falsely charged him with offences, and conspired with various persons to ensure his unlawful detention, and engaged in malicious prosecution of him.

On 29 November 1996 Master Patkin gave Mr Kay leave to amend the writ and statement of claim, which he did, but the amendments made little or no alteration to the original pleadings, although they added a fourth incident to the matters of complaint. A further attempt to amend the pleadings was made on 17 December 1996, and appears not to have been struck out. These proceedings were listed for trial to commence on 10 October 1997 but on that day Judge Stott ordered that the matter be taken out of the list to be refixed for hearing, and made various orders for particulars of special damage and for the exchange of reports.

The proceedings against the police officers have, therefore, not been decided, nor has the action been struck out, and in those circumstances counsel for the Attorney-General did not seek to rely on this as being a vexatious proceeding for the purposes of this application. Counsel noted, however, that there has been an apparent failure to comply with an order, and the proceeding currently stands as struck out until such time as the order is complied with. Given that the Attorney-General did not seek to argue that this proceeding was vexatious the order which I will make prohibiting Mr Kay from continuing proceedings will not extend to this proceeding. That is not to say that the proceeding has merit, or should not be struck out. Those are questions which can properly be evaluated by a judge of the County Court, or Master, if required to so decide.

Considerable care should be taken before an order under s. 21 is made. The badge of vexatious litigant, once the label attaches, carries severe repercussions and has the potential to adversely, and unfairly, impact on the litigant even in proceedings which he has been granted leave to pursue.

Starke J. held, in Gallo v Attorney General, supra, that it was a matter of fact for the tribunal to decide whether or not proceedings relied on to establish the applicant's case did constitute an habitual and persistent institution of proceedings. His Honour held that the word "vexatious" is not a term of art, and is an omnibus expression "which includes proceedings which are scandalous and which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the court".

In Jones v Skyring [1992] HCA 39; [1992] 66 ALJR 810 at 814, Toohey J. held that provisions such as s. 21 are "concerned with practice and procedure, reinforcing the power of the Court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance".

In Attorney-General v Wentworth (1988) 14 NSWLR 481, at 491, Roden J. held:

"It seems to me that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms: `1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless..."

In Re Vernazza [1961] QB 197 at 208 (a decision cited with approval by Toohey J. in Jones v Skyring at 813) Ormrod J. held:

"The question is not whether legal proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious."

Having made reference to Re Vernazza Toohey J. continued, in Jones v Skyring, at 813:

"That question is one for the court to decide on the facts; it is not decided by reference to whether the person against whom an order is sought was acting maliciously or in bad faith. So, in deciding the present application, it is not to the point that Mr Skyring may believe and believe strongly in his view of section 115 of the constitution and the associated points he wishes to agitate."

If, having regard to the principles discussed above, in Gallo v Attorney-General and Attorney-General v Wentworth, the court concludes that the litigant has instituted vexatious legal proceedings, s. 21(2) requires that before the person may be declared a vexatious litigant, the court must also conclude that the litigation has been initiated habitually, persistently and without any reasonable ground. In Attorney-General for the State of Victoria v Lindsay, unreported, 16 July 1998, Kellam J, having held that the proceedings in that case met the description of being vexatious continued:

"In the case before me the plaintiff led no evidence of any subjectively malicious motive on the part of Lindsay in bringing the proceedings. Accordingly, proof that the various proceedings relied upon were or are `vexatious' depends upon whether or not those proceedings disclosed any reasonable cause of action or basis or, to the contrary, were hopeless. I have already found in respect of the proceedings to which I have referred that they did not disclose any reasonable cause of action and indeed were effectively hopeless. As I have already stated, Lindsay's subjective belief as to the reasonable basis of the legal proceedings he has brought, and to which I have referred, is not relevant in the determination of whether the elements of s. 21 have been satisfied. Accordingly, I am satisfied that each proceeding which I have found to be vexatious has been brought without any reasonable grounds."

Repeated applications which are not based on new material may, of themselves, be an abuse of process even if the proceeding does not amount to a final determination of any matter between the parties: D.A. Christie Pty Ltd v Baker [1996] VicRp 89; [1996] 2 VR 582 per Hayne JA at 604-6. In my opinion, it would be manifestly the case that proceedings were brought without any reasonable ground if those proceedings failed to disclose a cause of action or constituted an abuse of process. As to the requirement of s. 21 that the proceedings must also have been instituted "habitually and persistently", that, too, is a question of fact: see Gallo v Attorney-General per Starke J. at p.12. In Attorney-General v Wentworth, supra, at 492 Roden J. held:

"On first impression these words clearly imply more than great frequency. `Habitually' suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; `persistently' suggest determination and continuing in the face of difficulty or opposition, with a degree of stubbornness."

In Attorney-General for New South Wales v Solomon (1987) 8 NSWLR 667 at 673, Young J. held that even if there may have been reasonable grounds in each particular instance for the issuing of a proceeding a person might be declared a vexatious litigant if there is an overall pattern of vexatious proceedings being habitually and persistently instituted. Although the legislation being considered by Young J. was in terms identical to s. 21 I would, with respect, doubt whether litigation could, overall, be characterised as being instituted without any reasonable ground if, in every instance, there was reasonable ground for instituting the proceeding. That question is not one, however, that arises in the present case, so many of the proceedings being issued without reasonable grounds.

So far as Mr Kay is concerned, he has not instituted any vexatious proceedings. He is convinced that the intervention orders would not have been granted in 1994 and 1995 had his wife been cross-examined when she made her applications to the Magistrate's Courts. In his opinion, therefore, the proceedings which he has brought since those orders were made have been genuine attempts to reverse decisions, which he considers to have been unjustly made. As the authorities discussed above make clear, however, a sincerely held belief in that regard, by Mr Kay, would not preclude me from concluding, objectively, that he is a vexatious litigant.

Mr Kay's belief as to the injustice of decisions of the courts, and hence, the justice of his continued litigation, in large measure relates to what he considers to have been the denials of the opportunity to cross-examine witnesses. It is appropriate that I consider this issue further. As will be seen, Mr Kay's perception as to the events with respect to any such lost opportunities for cross-examination - whether related to hearings in the Family Court or in courts under State jurisdiction - is a very selective one. It is not appropriate that I comment upon proceedings conducted in a different jurisdiction, but reference to events in the Family Court, as set out in the judgment of the Full Court of the Family Court, is necessary in order to understand the complaints made by Mr Kay concerning events in State courts. There is considerable overlap between events in the different jurisdictions, so far as Mr Kay is concerned.

It was indeed the case, as the Full Court of the Family Court acknowledged, that he was denied the opportunity to cross-examine Mrs Kay in one hearing in the Family Court, being that conducted by Dessau J. over seven days, in July 1995. Mr Kay was unrepresented in proceedings concerning guardianship, custody and maintenance. Orders had previously been made by Rowlands J.

Mr Kay, as the party who had conduct of the action, first gave evidence, and was cross-examined by Mr Glover, solicitor for Mrs Kay, and by counsel representing the children. Mr Kay gave evidence in a manner described by the judge as being belligerent and aggressive. When the time came for Mrs Kay to give evidence Mr Glover announced that he was withdrawing the wife's affidavit so as to prevent her being cross-examined by her former husband. Mr Kay objected to that course and sought leave to cross-examine his wife, which application was refused by Dessau J.

In its judgment, the Full Court, at p.29, noted that the decision to refuse Mr Kay's application to cross-examine his wife was "an unusual matter". The court, at p.33, expressed its disapproval, generally, of any tactical decision by a party to withdraw an affidavit so as to prevent cross-examination, and held that an impermissible refusal by a judge to allow cross-examination of a material witness would constitute a serious miscarriage of justice. However, the Full Court held that in all the circumstances of this case a miscarriage of justice had not occurred. It was noted that the decision made by the trial judge refusing the application for cross-examination was substantially taken because Mr Kay intended to cross-examine Mrs Kay on irrelevant or impermissible matters, that being made clear not only by his own statement as to the topics he wanted to address, but by the manner in which he had conducted the case to that point. The Full Court of the Family Court held that "the trial judge was faced with a unique situation which would rarely be replicated"

Dessau J. made an order restraining Mr Kay from instituting any application with respect to guardianship, custody or access without prior leave of the court and Graham J. later extended that to include any application under the Family Law Act. The Full Court held, at p.46, that: "(H)er Honour concluded that the history of this matter and the husband's attitude during the proceedings demonstrated a determination by him to continue to institute proceedings without any proper basis and to continue to harass the wife and reventilate prior issues. She was, in our view, justified in reaching those conclusions."

Thus, it may be seen that the loss of opportunity to cross-examine his former wife in the Family Court proceeding was substantially brought about by Mr Kay's own belligerent and inappropriate conduct, which conduct would probably have been avoided had he been represented by counsel.

The situation with respect to lost opportunities for cross-examination in State courts is different from, but has some features in common with the Family Court experience.

As I have shown, it is true that Mr Kay did not have the opportunity to cross-examine Mrs Kay at the time when the magistrate made the final order in 1994. In the case of that final intervention order - which applied for 12 months - he was in custody when the order was made. When that order came for reconsideration in 1995 and was made final - for an indefinite period - he appeared in person to oppose the application, but was unsuccessful. I presume that his scope for any cross-examination was, at least in his opinion, limited by the court. An appeal against that order, being a complete re-hearing, was heard before Judge Villeneuve-Smith, at which time Mr Kay was represented, and Mrs Kay was cross-examined. Mr Kay considers the cross-examination to have been ineffective, but the fact remains that the appeal process was exhausted and he had not been denied the opportunity to challenge his former wife's account of events.

The great majority of proceedings brought by Mr Kay since the making of the final intervention order in 1995 represented his refusal to accept the fact that the correctness of the decision to make a final order in 1995 was no longer open to debate, since the issue had been determined and the appeal process was exhausted. Mr Kay was entitled to bring proceedings to revoke the order, but only by reference to new facts and circumstances which had arisen since the making of the 1995 order. Mr Kay simply refused to accept that the matter was at an end, and refused to bring proceedings based on new facts and circumstances, because he wanted vindication upon the same facts and circumstances as he claimed existed at the time of the decision of the magistrate in 1995.

Earlier in my reasons I noted that there were a series of topics which might well have been the subject of cross-examination of Mrs Kay and other witnesses at the time of the making of the 1994 and 1995 orders. I am by no means convinced that cross-examination on some, or all, of those topics never occurred. Certainly there were opportunities for Mr Kay, or his counsel, to do so. But even assuming that such opportunity was not taken, the matters would, most probably, have had no relevance for the proceedings which Mr Kay later took. In saying that, I do not discount the possibility that, in the context of an application for revocation based on new facts and circumstances, a court might well have been persuaded that cross examination on some of the topics did, indeed, have some continuing relevance. Mr Kay has never brought such an application, however. He has merely sought to revisit the original findings. The constant complaint of the denial of justice by virtue of a denial of the right to cross-examine is unjustified both because he did have such an opportunity and also because there can be no basis now for re-litigating the circumstances of the 1994 and 1995 orders. Mr Kay seeks vindication as to events leading up to the order in 1995 and, I suspect, seeks to harass Mrs Kay as part of the exercise.

In evaluating the evidence presented by the Attorney General in support of this application, it is plain that some of the proceedings relied upon do not, taken in isolation, or at all, justify the description of their being vexatious. But as emerges from the cases discussed, above, it is the totality of proceedings which must be taken into account, together with all of the circumstances which surrounded the bringing and disposition of those proceedings. When viewed overall, even if many of the individual proceedings are not taken into account (for reasons earlier discussed), the conduct of the defendant is manifestly that of a vexatious litigant. The proceedings, to a significant degree, have failed to disclose a proper cause of action and have manifested a determination to ignore past adverse rulings and to re-litigate matters which he has repeatedly been told can not be litigated. Mr Kay is using the legal process for the purpose of waging a campaign, primarily against the Family Court. His pleadings often employ the strident language which he uses in his campaign waged outside the court precincts, and his pleadings are similarly unrestrained by reference to legal principle. Furthermore, Mr Kay has brought proceedings in Victorian courts habitually, persistently, and without reasonable cause, and will continue to do so unless restrained from so doing without leave of the Court, being forced thereby to direct his energies to more productive, and properly formulated, litigation. Mr Kay is wasting the time of the court, and his own, but enjoying the notoriety which his proceedings bring and the inconvenience and harassment of those who must defend those proceedings. Although Mr Kay's sincerity in his concern for loss of his children has been acknowledged many times by judges and magistrates, the time is fast approaching when much harsher judgment of his motives may be made.

In Re Attorney-General of the Commonwealth; Ex Parte Skyring, (1996) 70 ALJR 985, at 987 Kirby J. held:

"It is always necessary to keep open the possibility, particularly where a person is not legally represented, that there might be, in the issues which he or she wishes to litigate, some question of substance hidden amongst all the words. It is a serious matter to prevent a person prosecuting a contention before a court of law and of justice. However, as I explained to the applicant, courts for a very long time have needed, and asserted, a power to prevent their time being occupied by proceedings which are, in a legal sense, an abuse of process or in respect of which there is no prima facie ground for prosecuting the point."

I have regard to the words of Kirby J. There is a particular need to exercise care in the present case when considering the many proceedings, and their outcome, to which I have been referred. Mr Kay complains that from the time when the first adverse decision was made against him, each succeeding court has drawn comfort and support from prior decisions, an approach which both increases the confidence of the decision-maker, and reduces Mr Kay's prospects of justice in an individual case. As the number of cases grows and as the reasons for judgment in each instance refer, with obvious displeasure, to the aggressive manner which Mr Kay has brought to the hearing, then so too do his prospects of success increasingly diminish.

Typically, Mr Kay's complaint, in this respect, is not couched in insincerely polite terms. So far as he is concerned, he is the victim of judicial "rubber stamping" of the decisions of judicial colleagues. Care must be taken that such a complaint is not too readily rejected. The fact is that, given the importance in judicial culture of precedent, judicial comity, and respect for other judicial officers, it would be quite easy for a judge hearing a case involving Mr Kay to be unduly influenced by the history of the repeated rejection of his litigation. I have endeavoured to ensure that I do not succumb to that temptation. Insofar as Mr Kay has been the subject of much adverse judicial comment as to his belligerent manner, then I have had my own opportunity to judge whether that was likely to have been fair comment. Insofar as his proceedings have been dismissed as vexatious or an abuse of process then my own examination of those cases has satisfied me that that conclusion was amply justified.

Having regard to the totality of the proceedings, in my view there is not the slightest doubt that the case for declaring Mr Kay a vexatious litigant is overwhelming. Having said this, however, it is important to recognise that the making of such an order will not prevent further proceedings being brought, but my order will ensure that they can not be brought without leave of a judge of this Court.

It is very unfortunate that Mr Kay has lost so much time pursuing hopeless litigation. Not only has that represented a tremendous waste of scarce judicial resources, and, I do not doubt, also entailed a quite unnecessary emotional and financial burden both on Mr Kay and on others, it has itself contributed to the fact that Mr Kay has been denied the opportunity to see his children, who are now all in their teens. Mr Kay freely acknowledges that he is waging a campaign against the legal system. He has chosen to focus on that campaign, rather than taken the many opportunities which he has had to make a properly presented application for variation or revocation of the intervention order on the basis of new facts and circumstances.

In the judgment of Dessau J., delivered 8 August 1995, her Honour referred to previous proceedings in the Family Court before Rowlands J. Her Honour continued:

"Rowlands J. accepted that Mr Kay loved his children and dearly wished to see a lot of them. I have seen happy family photographs when the children were babies and toddlers and have read affidavits from friends and acquaintances of the father who described his relationship with the children in years gone by in favourable terms. The expert evidence before me has supported the view that Mr Kay's expressed desire to be reunited with his family is genuine. I accept that and understand the frustration that Mr Kay has felt in not being able to lead an active role in the children's lives. However, he was in this regard thrown a perfectly appropriate `life line' by his Honour's outlining the sort of preparation that was required in order for access to recommence. His Honour's view was clearly that Mr Kay's anger went beyond being a logical effect of having been deprived of his children. Indeed, it had become a significant cause of that deprivation. Several interlocutory orders have been directed towards Mr Kay's anger management since the last hearing. Such counselling as there has been in this regard has been notable for its lack of success."

Dessau J. discussed attempts at counselling which had occurred and had failed, and reported that Mr Kay had considered that the reports which had been made by psychologists and counsellors had been biased and unfair, including a psychiatrist who had been chosen by the solicitor acting for Mr Kay. Dessau J. continued:

"It is fair to note that Mr Kay argues that he is angry, but that is because he cannot see his children. His view is that rather than treatment, he needs only an active daily role in the children's lives for his anger to vanish. Rowlands J. clearly rejected that view, as have the experts in their evidence before me. Sadly, Mr Kay's anger has reached such proportions that it is contributing towards the deprivation from which he says it derives. The expert witnesses agree, and I accept, that until he can see the problem he cannot receive useful treatment. Even more sadly, until he avails himself of such assistance he cannot be the `access' or `shared custody' parent that he would like."

In the course of the hearing before me I observed to Mr Kay that my reading of all of the files disclosed that in no instance did any magistrate or judge express any doubt as to the sincerity of Mr Kay's love and affection for his children. I expressed the view that upon a reading of the files and, in particular, of the reasons for judgment of the Full Court of the Family Court, it seemed quite plain that his attempts to gain the association with his children that he seeks is doomed to failure unless he can establish new facts and circumstances which would justify the hearing of an application for a change in the existing situation. Custody, guardianship and access arrangements are all matters to be considered by the Family Court. Applications to vary the intervention order must be made to courts under the jurisdiction of the Supreme Court. The requirement of new facts and circumstances, however, applies to each jurisdiction.

I encouraged Mr Kay to consider heeding the often repeated pronouncements that if he wished to continue legal proceedings with respect to the intervention order he must present a case based on new facts and circumstances. There is good reason why that is so. There must be some finality to litigation, and the appeal process provides for finality after proper testing of decisions. Were it otherwise parties would forever be at risk of having to re-argue old arguments, with the reliability of memory, and the availability of witnesses, decreasing as time progressed. Had Mr Kay succeeded in having the application for an intervention order dismissed in 1995, and successfully withstood an appeal, would he wish to be at risk that the case might be re-argued in 1999, perhaps for the third or fourth time?

As I stated to Mr Kay during the course of submissions, a factor which frequently emerged in previous proceedings was the question of anger management. Initially, Mr Kay was very unreceptive to my suggestion that he might consider seeking professional assistance so as to demonstrate to the courts a new fact and circumstances, namely a genuine effort to control his anger. But, after giving the matter further thought, Mr Kay said that he would be willing to undertake such counselling and psychiatric support as may be appropriate. I commend him for that decision, which I have no doubt was sincerely stated. It is important that Mr Kay does pursue that course of seeking professional assistance with respect to anger management.

If Mr Kay does adopt such an approach as a starting point for seeking to bring fresh proceedings it seems to me essential that he then be assisted by an experienced legal practitioner in framing and presenting such an application, both in his own interests as well as in the interests of the court being able to properly assess the merits of such an application.

Mr Kay was refused a grant of legal assistance by Victoria Legal Aid for the conduct of the hearing before me. It is not the responsibility of the Court to make decisions as to legal aid. The guidelines and funding priorities of Victoria Legal Aid are matters for that body to assess. It is a notorious matter that legal aid funds are scarce and that funding bodies have to make difficult choices between deserving applicants for grants of legal assistance. I do, however, make some observations as to the impact on the judicial process which I perceive would result if Mr Kay pursued his application without legal representation.

Mr Kay considers that he has been the victim of what amounts to a conspiracy by lawyers, judges, politicians, police officers and others, to misuse the processes of the law so as to deny him his right as a father to participate in the lives of his children. Those views are demonstrably wrong, but no doubt sincerely held. He rages at what he regards as manifest injustice. He is not a man given to self doubt, and is quite incapable of objectively assessing facts. He seems reluctant to view compromise as other than weakness, or to recognise when the time has come to abandon a hopeless position. As an advocate in his own cause he is quite hopeless. The frequent excesses of language, the loud exchanges, the refusal to address unpalatable facts - which are frequent features of his conduct of proceedings - coupled with his lack of legal training, combine to make it almost impossible for him to personally present his case, adequately, to the court. The duration of the hearing before me was substantially increased by virtue of the fact that Mr Kay was unrepresented, and that has no doubt been so in all instances where he has appeared unrepresented.

A person such as Mr Kay presents a serious challenge to the functioning of the system of justice. Whilst the principle of accessibility to the courts is a fundamental tenet of the system, proceedings of a vexatious character which are commenced and pursued in purported reliance on that principle, deny or impede access to the courts by other litigants.

Properly advised, and such advice being properly heeded, Mr Kay may well be able to bring appropriate proceedings before the courts, with respect to the intervention order. He does not, however, present as a person who will readily heed advice, and I have little doubt that Mr Kay's own conduct has contributed to the fact that he has been unrepresented on occasions. He is quick to allege that his lawyers are negligent if the outcome of proceedings is not as he would wish, or to intervene in proceedings when he considers that he is the better advocate. All of those matters, coupled with the aggressive manner in which Mr Kay appears to approach all agencies which are seen to be part of the legal system, might engender a reluctance to grant funds to him for the purpose of further legal representation. Aggression, it might be thought, should not be rewarded by a grant of legal assistance, but such a consideration should not be given too great an emphasis, especially if it means that the proceedings will be taken in any event, and will have none of the proper restraints which legal representation imposes on litigants.

I recognise that there would be many factors which would have to be addressed by Victoria Legal Aid if an application for assistance was made by Mr Kay, but it would be a very regrettable situation if any further application - if leave to proceed be granted by this Court - was argued in person by Mr Kay. Furthermore, the complexity of the history of this matter, and the complicating factors which I have identified above, suggest that adequate representation would require that experienced counsel be engaged, and adequate time for preparation be afforded to that person. It is not that Mr Kay is incapable of restraint. Although Mr Kay was initially aggressive, and his presentation somewhat uncontrolled, when he first appeared before me, his conduct modified significantly as the hearing progressed, but I think it likely that he would be temperamentally incapable of calmly conducting proceedings which involved the cross-examination of witnesses.

In Deitrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, at pp.301-302, Mason C.J. and McHugh J, speaking of a criminal trial, but in a context with wider application, observed:

"The advantages of representation by counsel are even more clear today that they were in the nineteenth century. It is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious. Lord Devlin (in `The Judge' (1979) p.67) stressed the importance of representation by counsel when he wrote: `Indeed, where there is no legal representation, and save in the exceptional case of the skilled litigant, the adversary system, whether or not it remains in theory, in practice breaks down.' An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge or skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown. The hallowed response that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a `helping hand' to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems."

In my view, the problems associated with self-representation are no less significant in civil proceedings than in criminal proceedings. The order which I will make does not deny to the defendant his opportunity to take proceedings to remove the intervention order against him. To bring such proceedings he will require leave of this Court. To succeed in such an application new facts and circumstances must be presented and the arguments on his behalf must prove persuasive. Evidence of his having sought and followed professional advice as to anger management, and a demonstrated willingness to take advice, so as to allow his case to be presented professionally and calmly, would undoubtedly be significant factors aiding the prospects of the success of an application for leave.

I do not suggest that the absence of legal representation would be of direct relevance to the question whether leave to proceed should be granted, but a proper appreciation of the merits of such an application would be difficult to attain if the documents which constituted the pleadings, or process, had not been settled by counsel, and if the application was argued by Mr Kay, in person.

I conclude that the defendant is a vexatious litigant within the meaning of s. 21 of the Supreme Court Act. I will order that he be restrained from commencing or continuing any legal proceedings in the Supreme Court, County Court, Magistrates Court or any Victorian Tribunal without leave of a judge of the Supreme Court. I exclude from the terms of this order the proceedings which Mr Kay has issued in the County Court, being action No. MC9508691, between Ian Kay as plaintiff and Senior Constable A. Dye, and others, as defendants.

Counsel for the Attorney General advised me that in the event that the plaintiff succeeded in this application, no order for costs would be sought against Mr Kay.

(Family Violence) Act 1987

Mr Masel, counsel for the Attorney General, submitted that I was entitled to have regard to the proceedings which had been issued in the Family Court, not by way of adding any such proceedings to the list of proceedings (within the jurisdiction of the Supreme Court) which are relied upon by the Attorney General, but more generally. In deciding whether proceedings in Courts under the jurisdiction of the Supreme Court were vexatious, Mr Masel submitted I am entitled to have regard to the fact that those proceedings are cumulative upon those commenced in another jurisdiction: see, Re Cameron [1996] QCA 37; (1996) 2 Qd R. 218, at p.224, per Mackenzie J., with whom Pincus J.A. agreed.

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