Attorney-General for the State of Victoria v Moran [2008] VSC 159

Supreme Court of Victoria|2008-05-02|Before: CURTAIN J

PRACTICE AND PROCEDURE: Vexatious litigant - Application to restrain - Requirements - Whether proceedings 'vexatious' - Whether 'habitually and persistently' instituted - Supreme Court Act 1986 s.21.

1 This is an application by the Attorney-General for an order, pursuant to of the , declaring John Gerard Moran a vexatious litigant and seeking further consequent orders.

2 The Attorney-General, represented by Ms Judd SC, relied upon two affidavits of Andrew Suddick, sworn 12 December 2006 and 26 June 2007, respectively, and the exhibits thereto. Mr Moran appeared in person and relied upon two affidavits sworn by him on 6 June 2007 and 25 September 2007 and the exhibits thereto.

3 In December 1982, Cuthberts Nominees Pty Ltd (now known as Lydiard Financial Services) became a mortgagee of land at Clarkes Hill. The proprietor of the land was Mr Moran's mother, Isabella Bridget Moran. The mortgage was granted to secure a loan of $135,000 to Isabella Bridget Moran and other family members including Mr Moran. In 1988, Cuthberts Nominees Pty Ltd consented to a second mortgage of the land to different family members. As a result of a default under the first mortgage, proceedings were issued against Mrs Moran in the Supreme Court at Ballarat. This matter was remitted to the County Court and consolidated with two other County Court matters issued in respect of outstanding payment of principal and interest and payment of moneys in respect of an insurance claim; the farmhouse at Clarkes Hill having been destroyed by fire in June of 1993. The matter proceeded to hearing and, during the luncheon adjournment on the first day, the parties agreed to settle the matter. Ultimately, terms of settlement were entered into on 1 March 1995. These provided for an increase in the principal from $135,000 to $145,000 (to cover arrears of interest) and, in default of payment, Cuthberts Nominees Pty Ltd would be entitled to a consent judgment to recover possession of Clarkes Hill.

4 Subsequently, in default of payment and, acting under the terms of the settlement, an ex parte order was made by Master Patkin in the County Court on 3 December 1996 granting Cuthberts Nominees Pty Ltd possession of Clarkes Hill.

5 On 30 December 1996, Mrs Moran filed a notice of appeal and, on 15 January 1997, Beach J refused the application for leave to appeal as the proceedings were out of time. These proceedings issued by Mrs Moran were issued properly and conducted appropriately and do not form part of the proceedings relied upon by the Attorney-General to establish the grounds that Mr Moran is a vexatious litigant. On 20 June 1997, the Clarkes Hill property was sold at public auction. In April 2002, Mrs Moran died.

6 It is from these facts and circumstances that Mr Moran has, in his name or as the purported executor of his late mother's estate, issued many and varied proceedings ultimately designed to seek justice for what he sees as the unlawful dispossession of his family's land and which the Attorney-General alleges are vexatious proceedings.

7 In December 2002, Mr Moran in his own name laid private informations against two of the solicitors at Cuthberts Nominees Pty Ltd, the real estate agent who conducted the sale of the property, and the barrister who appeared before Master Patkin. These charges alleged, inter alia, conspiracy to defraud, obtaining property by deception and attempting to pervert the course of justice. Each of these accused persons and Lydiard Financial Services (previously Cuthberts Nominees Pty Ltd) applied to the Supreme Court to have the charges stayed as an abuse of process. On 28 January 2003, Beach J made interim orders staying the proceedings and restraining Mr Moran from laying or pursuing further proceedings. Those orders were extended by Redlich J on 20 February 2003 and eventually the proceedings were discontinued by order of Mandie J on 5 March 2003.[1]

8 On 19 March 2003, Mr Moran issued a summons seeking leave to appeal this decision out of time and on 16 May 2003 the Court of Appeal dismissed that appeal. On 10 December 2004, the High Court dismissed Mr Moran's application for special leave to appeal.

9 In the meantime, on 15 January 2003, Mr Moran, purporting to act as executor of the estate of Isabella Bridget Moran, filed a summons seeking an extension of time in which to appeal the order of Beach J made on 15 January 1997 wherein Mrs Moran was refused leave to appeal against the order of Master Patkin. On 28 February 2003, the Court of Appeal dismissed this application. On 28 March 2003 Mr Moran applied for special leave to appeal against the decision. The grounds included inter alia "the justices refused to answer a disclosure question in relation to the shareholding directorships and trusteeships or whether they were beneficiaries of the same. On the maxim of "what is not denied is admitted" the justices would be in breach of s.84 of the Victorian Constitution Act 1975" and seeking orders that included "the applicants be returned to their original position". On 10 December 2004 the High Court dismissed this application.[2]

10 In March 2005,[3] Mr Moran issued a writ and filed a statement of claim in the Supreme Court alleging, inter alia, that Lydiards had obtained possession of the Clarkes Hill property by fraud. A defence was filed denying the cause of action and alleging the proceedings were incompetent and a collateral attack on other proceedings. Lydiards issued a summons seeking summary judgment and on 21 July 2005 Master Evans dismissed the substantive proceeding and ordered the defendant to pay the costs of the proceedings on an indemnity basis.

11 Mr Moran filed a notice of appeal against the decision of Master Evans and that appeal was heard by Mandie J on 10 August 2005 and dismissed.

12 Mr Moran filed a notice of appeal against this order and on 18 November 2005 the Court of Appeal ordered him to give security for the costs of the appeal, the Court noting that the appeal had no real prospects of success. Mr Moran did not provide the security for costs by the appointed date and, accordingly, on 23 December 2005, the appeal was stayed.

13 In the interim on 23 September 2005, a bankruptcy notice had been filed against Mr Moran on the basis of unpaid costs orders. Mr Moran then filed an application to set aside the bankruptcy notice and this led to a series of proceedings in the Federal Court whereby Mr Moran appealed or applied for a review of every decision made in that jurisdiction, none of which were made in his favour. The most recent decision being that of Justice Gordon made on 8 June 2007 dismissing Mr Moran's appeal against the order of Federal Magistrate Riley which, in turn, dismissed his application to set aside a sequestration order.

14 Mr Moran advised this court, in passing, that he will be issuing proceedings alleging a conflict of interest in Justice Gordon having heard this appeal as Hayne J had determined his special leave applications in the High Court.[4]

15 Mr Moran also advised the court that he had on foot grand jury applications, which, as I understand it, were issued in the Supreme Court. He produced copy documents to that effect, although the documents bore no authentication or other markings which confirmed that they had been filed with the court. The content of these documents, however, was unintelligible and did not appear to disclose a cause of action.

16 In this court Mr Moran pleasantly and courteously argued his case against a declaration being made. As the order sought is of a most serious nature and one which should only be made when the case is clear and compelling and because Mr Moran was unrepresented, I invited him to consider whether he wanted to obtain legal advice. He did not, as he said he could not afford it and "he didn't have a lot of confidence in solicitors".[5] Ultimately, it was considered appropriate to proceed with the Attorney-General's submissions and then adjourn to allow Mr Moran to address those submissions and advance his case. Transcripts of proceedings were provided to him and he was afforded the opportunity to file further affidavits or submit written submissions. He did neither. However, on the return date, Mr Moran cross-examined Mr Suddick and gained from him the concession that there were in fact six signatories to the mortgage dated 16 December 1982 and not five as Mr Suddick's affidavit stated. He also challenged Mr Suddick as to his failure to exhibit the ruling of Mandie J made in August 2005, as it was his contention that that ruling reflected a change of attitude on the part of Mandie J to one which was more favourably disposed towards Mr Moran's situation. I accept Mr Suddick's answer that the omission was because some matters had been difficult to locate in the various files. In any event, the transcript and the ruling of Mandie J were conveniently exhibited to Mr Moran's affidavit and, thus, despite Mr Suddick's omissions, I have had recourse to those documents.

17 Ms Judd SC submitted that the chronology of proceedings issued by Mr Moran either in his name or that of executor of his mother's estate should satisfy the court that Mr Moran has habitually, persistently and without any reasonable grounds instituted vexatious proceedings and that, in the exercise of the court's discretion, the order should be made. Ms Judd submitted that the purpose of s 21 is to protect persons from, effectively, harassment[6] and that the various persons caught up in the claim for possession of Clarkes Hill face a continuous risk of being drawn into legal proceedings as they have in the past; that this requires them to instruct solicitors, file defences, issue applications for summary judgment and that these actions all necessarily involve considerable expense and inconvenience. Ms Judd further submitted that, in essence, Mr Moran continues to seek to relitigate matters which have been conclusively determined in earlier proceedings. He remains undeterred by cost orders, including indemnity orders, and his response to orders which are adverse to him or with which he cannot comply is simply to issue new proceedings. Further, as evidenced by the applications for a grand jury, it appears that Mr Moran intends to widen the net of those he believes have in some way played a part in the unlawful claim for repossession. Ms Judd frankly conceded that although the number of proceedings is at the lower rather than higher end they nonetheless satisfy the requirements of proceedings being issued habitually, persistently and without reasonable grounds.

18 Mr Moran's submissions principally canvassed the background to his grievances with Cuthberts Nominees Pty Ltd/Lydiards. In short these were:

(1) that the variation of mortgage was a deed and was void unless signed;

(2) that it was Lydiard's failure to sign and register the variation of mortgage which constituted a breach of settlement;

(3) Lydiard's failure to obtain consent of the subsequent mortgagees to the variation meant that the variation had lost priority and he here referred to s 75A of the Transfer of Land Act; and

(4) the affidavit of Richard Eric Oakley, a solicitor with Cuthberts Nominees Pty Ltd, had incorrectly deposed to the fact that the variation of mortgage had been entered into when it had not been signed. This affidavit was relied upon in the ex parte application for possession of the mortgaged property. It is in this regard that Mr Moran believes he has been wronged, and because the parties acted to sell the property, despite knowing "the legal issues", Mr Moran brought the criminal proceedings.

19 Mr Moran submitted that he has a legitimate claim because of the unsigned variation of mortgage and that in every proceeding to date he had been thwarted on technicalities such as standing to sue rather than a decision having been made on substantive issues. Mr Moran conceded that some of the affidavit material in the relevant cases contained "the same basic sort of facts" but that "none of these, the really important ones, have been dealt with --- the judgments have always been for some other area of the law".[7]

20 Mr Moran submitted that he had issued proceeding No 22 of 2005 to overcome the difficulty of his lack of standing as was apparent in proceeding No 12 of 2005 where he lacked the grant of probate and that, if a declaration is made, that these proceedings should be exempt. He regarded the bankruptcy proceedings by Lydiards as an endeavour by them to get him out of their hair and, as Lydiards were solicitors, the courts were covering up for one of their own.

21 Mr Moran maintained that he was exercising a right of appeal which is legitimate and not vexatious. He maintained that the bulk of the legal proceedings are appeals, or actions brought against him, or in his capacity as executor of his mother's estate.

22 Mr Moran submitted that there was no evidence before the court to prove that the Attorney-General had brought the proceedings or even that he knew about them and, indeed, although he did not appear to pursue the point, he submitted that the Attorney-General's authority may be compromised by reason of the misprision of treason charges and grand jury applications brought against him by another litigant, Brian William Shaw.

23 Mr Moran also submitted and tendered in support of his submission the extract from Blackstone's Commentaries that it is the third subordinate right of every Englishman to apply to the Court of Justice for redress of injuries and that this is what he was attempting to do.

24 However, Mr Moran's principal submissions seem to be what he discerned as a change of attitude on the part of Mandie J, which he submitted amounted to a favourable consideration of the substantive issues. Unfortunately for Mr Moran, this submission is not borne out by a reading of the judgment, transcript and ruling of either of the decisions made by Mandie J.

25 Section 21 of the Supreme Court Act inter alia provides as follows:

(1) The Attorney General may apply to the court for an order declaring a person to be a vexatious litigant.

(2) The court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has -

instituted vexatious legal proceedings (whether civil or criminal) in the court, an inferior court or a tribunal against the same person or different persons.

26 The principles to be applied and the relevant authorities have been helpfully summarised in the judgment of Whelan J in the Attorney-General for the State of Victoria v Michael Weston.[8] The court may only make an order under s 21 if it is satisfied that the defendant has habitually, persistently and without reasonable grounds instituted vexatious legal proceedings. If the court is satisfied that the requirements are met, then the court must consider whether an order ought to be made. Vexatious proceedings are instituted habitually when they appear to be instituted as a matter of course. Persistence suggests determination and an element of stubbornness. An absence of reasonable grounds will necessarily be the position where the proceedings have been revealed to be hopeless. If the requirements of the section are met the person's conduct as a whole must then be assessed to determine if, in all the circumstances, an order ought to be made.

27 The way in which the court is to approach the task on an application under s 21 is to be found in the decision of Hansen J in the Attorney-General v Shaw[9] where he there quotes from the passage in The Attorney General for the State of Victoria v Horvath Senior[10] as follows:

The following matters are according to the authorities relevant. First, when an order has been made dismissing an action as frivolous or vexatious or striking a pleading out it is not for court considering a s 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files, documents, judgments, orders and reasons. For that reason, any hearsay material contained in affidavit in support of an application even though objectionable should be treated simply as distraction and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s 21 in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results.

28 I propose to deal with the application consistently with those stated principles.

29 These proceedings were issued on 12 December 2002. They relate to the criminal charges laid in the Ballarat Magistrates' Court. Each of the four defendants were charged with conspiracy, attempting to pervert the course of justice, obtaining property by deception and one of the solicitors faced an additional charge of obtaining financial advantage by deception. On 5 March 2003, Mandie J in his judgment described the conspiracy charges as "doomed to failure". The charges against the estate agent were described as "absolutely absurd on its face". The charges against the lawyers were described as "completely misconceived and hopeless" and further that there was no basis for the charge of obtaining property by deception and obtaining a financial advantage by deception. Mandie J held that as these charges had been laid for an improper purpose (to further a civil action for damages) and were "so evidently hopeless and misconceived" that they ought to be terminated "even on an interlocutory basis". I am satisfied that these proceedings were issued without reasonable grounds.

30 On 19 March 2003, Mr Moran filed a notice of appeal in respect of Mandie J's order, which included inter alia the following grounds:

Mandie J erred in law when he sat in judgment, when he himself if he is trustee of the Masonic Trust of Victoria, was breaching s.84 of the Constitution Act 1975, 8750/1975.

Mandie J erred in law when he sat in judgment, when he himself if he is trustee of the Masonic Trust of Victoria, was breaching s.151 of the Evidence Act 1958.

Mandie J erred in law when he sat in judgment, when he himself if he is trustee of the Masonic Trust of Victoria, was breaching s.316 of the Crimes Act 1958.

The relief sought "that the hearing of the summons in this matter be declared a nullity and a new hearing be held before a jury of the defendant's peers or alternatively that the judgment made 5 March 2003 be set aside".[11]

31 On 16 May 2003, the Court of Appeal dismissed Mr Moran's appeal against the decision of Mandie J. The appeal was held to be out of time and in any event the grounds of the appeal were described by the Court as "quite hopeless and without any reasonable prospect of success". The grounds were described as being "without merit", "altogether without substance"[12] falling "far short of raising even an arguable case of error on appeal"[13].

32 The Court of Appeal noted that the notice of appeal did not challenge in any relevant fashion Mandie J's conclusion that the charges were an abuse of process. In these circumstances I am satisfied that the appeal from Mandie J's decision was instituted "without any reasonable ground".

33 On 15 January 2003, Mr Moran issued an application for an extension of time to appeal the orders of Beach J made on 15 January 1997. The Court of Appeal dismissed the application and ordered that Mr Moran pay costs on an indemnity basis. The Court of Appeal held that there was nothing in the affidavit material sufficient to explain the failure of Mrs Moran to take steps to prosecute the appeal during 1997 let alone thereafter. The Court stated that it was difficult to see now what could sensibly be achieved on appeal so long after the event; possession had long since passed to the first mortgagee, the land sold and the proceeds accounted for. Mr Moran's claim of constitutional difficulties was described as hard to follow and one aspect of it, which concerned the qualifications of Justice Beach to sit as a judge, was described as "plainly misconceived". Finally, Mr Moran had no standing as no order for probate or administration of the estate had been obtained. In these circumstances, I am satisfied that this appeal was issued without reasonable grounds.

34 Mr Moran issued a writ in the Supreme Court alleging, inter alia, that Lydiards had obtained possession of Clarkes Hill by fraud. Lydiards filed a defence denying the cause of action and alleging the proceedings were incompetent as they were a collateral attack on other proceedings.

35 Lydiards sought summary judgment. Master Evans dismissed the proceedings on the grounds that the statement of claim disclosed no cause of action and ordered Mr Moran to pay the costs of the proceedings on an indemnity basis. Mr Moran filed a notice of appeal against the decision of Master Evans and on 10 August 2005, Mandie J dismissed the appeal. In doing so, his Honour stated that Mr Moran had no standing because he was not the registered proprietor and if there was any cause of action it was likely to be statute barred. Mandie J described the statement of claim as quite confusing and noted that it had all the hallmarks of a vexatious claim. I am satisfied that in these circumstances the issuing of the writ and the appeal against the order of Master Evans were issued and instituted without reasonable grounds.

36 On 22 August 2005, Mr Moran filed a notice of appeal seeking, inter alia, to set aside the order of Mandie J, on the ground that Mr Moran "is one of the executors of his late mother's Will and Mandie J erred by giving his judgment on the strength of a submission of the defendant's counsel to the effect that the plaintiff did not have a grant of probate or letters of administration without asking the plaintiff whether he did have such documentation which would give him standing in the Court to pursue such action."

37 On 18 November 2005, the Court of Appeal heard an application by Lydiards for an order for security for costs. The Court observed that Mr Moran had an outstanding costs order amounting to $59,324.50 against him which had not been paid and a bankruptcy notice had been issued against him. The Court ordered security for costs because "the appeal itself has no prospects of success". Accordingly, I am satisfied that the appeal against Mandie J's order is a proceeding instituted without any reasonable grounds.

38 On 24 November 2005, Mr Moran issued a writ and filed a statement of claim alleging fraud and unlawful obtaining of judgment by Lydiards in respect of its possession of Clarkes Hill. The particulars of this statement of claim referred to the fraudulent and unlawful obtaining of judgment, the sale of the family farm and the obtaining of all of the proceeds of sale by the defendant, and sought trial by judge and jury under the sanction of the Magna Carta, Rule 47.02, and s.80 of the Commonwealth Constitution Act 1900 and claimed damages. Mr Moran issued these proceedings as executor of the estate of Isabella Bridget Moran and stated that he had a grant of probate for his late mother's estate.

39 Lydiards filed a defence alleging the proceedings to be an abuse of process because it amounted to no more than a collateral attack on the orders of the County Court made on 3 December 1996 and the Supreme Court on 15 January 1997 and that the statement of claim failed to disclose the cause of action.

40 It was these proceedings which Ms Judd SC submitted were stayed by operation of s.60 of the Bankruptcy Act, the trustee in bankruptcy not having made an election to proceed within the required time. Mr Moran, however, challenged the applicability of this section, maintaining he came within the exemption provided by s.60(4) of the Bankruptcy Act. While acknowledging that the stay arises by operation of law and not for any other reason, Ms Judd SC nonetheless relied upon these proceedings in support of the application.

41 I am satisfied that the subject matter of the allegations in the statement of claim have been effectively dealt with in the order of Mandie J made in August 2005 dismissing the appeal against the orders of Master Evans and I am satisfied therefore that insofar as these proceedings seek to relitigate matters which have been conclusively determined, they are therefore utterly hopeless and issued without reasonable grounds.

42 As to Mr Moran's specific submissions, the issue of the variation of mortgage was finally determined by the decision of Beach J when he refused the application for leave to appeal out of time and all of the proceedings issued since then have simply been a means of attacking the decision of Master Patkin and Beach J.

43 It is not the case that each decision has been dismissed simply by reason of a lack of standing or some technical point. The Court of Appeal in its decision on 28 February 2003 made it clear that the issue was not determined solely by a lack of standing but also by the failure of Mrs Moran to appeal in a timely manner in 1997 or afterwards and that an appeal some six years later could achieve very little given the property had been sold and the proceeds of the sale dispersed.

44 Mandie J, in March 2003, held that the criminal charges in the Ballarat Magistrates' Court were an abuse of process and, thus, were ordered to be discontinued. The proceedings in August 2005 (being case No 12 of 2005) were entirely different proceedings as was acknowledged by his Honour in argument before him. In those proceedings, although Mandie J articulated the oral submission of Mr Moran which supplemented the cause of action which his Honour said he could not otherwise follow, he did not, however, consider whether the submissions had merit other than to say "these are all interesting questions". But, nonetheless, Mr Moran did not have standing before the court. The fact that he was a prospective beneficiary under his mother's will did not give him a cause of action. Indeed, Mandie J concluded that "the proceeding is vexatious and an abuse of process and that no cause of action is disclosed by the statement of claim and even having regard to the explanation that Mr Moran has given me". Clearly, this cannot be said to be a favourable consideration of the substantive claim as Mr Moran now submits, nor can it be said that the proceedings were dismissed simply because of a technicality.

45 Indeed, in respect of Lydiard's application for security for costs, had Mr Moran provided security for costs by the appointed date he would have been entitled to prosecute his appeal. Instead he simply issued further proceedings which are clearly an attempt to relitigate the matters which had been resolved against his mother in 1997.

46 Mr Moran further submitted that there was no evidence that the Attorney-General even knew that these proceedings had been issued. This is not a situation where proceedings can only be issued with the consent of a statutory officer such as is required in conspiracy charges where the consent of the Director of Public Prosecutions is a prerequisite. This was the fatal flaw in the conspiracy charges sought to be laid by Mr Moran. An application pursuant to s.21 of the Supreme Court Act need only be instituted by originating motion. It does not require the consent of the Attorney-General nor does it require the leave of the court. Ms Judd SC has announced her appearance on behalf of the Attorney-General, the application is supported by affidavits sworn by Andrew Suddick, a solicitor in the employ of the Attorney-General's Department. Mr Suddick gave evidence that instructions were received by "my office to bring the present proceedings".[14] This submission cannot be sustained.

47 As to Mr Moran's submission that he is merely exercising his right of appeal and that that is the right of every Englishman, certainly the making of an order under s.21 denies Mr Moran his right to appeal as of right. However, it does not mean that he can never initiate proceedings but rather he will have to seek leave of the court to do so and in that way his prospective proceedings will be subject to scrutiny to ensure that the proceedings have a legitimate foundation and are not an abuse of process. It is in this way that an order pursuant to s.21 is designed to protect members of the community from being "harassed and embarrassed" by a multiplicity of proceedings that are without foundation, while at the same time permitting Mr Moran once he has obtained the leave of the court to institute proceedings which are legitimately designed to address a wrong.

48 Mr Moran submitted that he had only initiated the private informations and proceedings no. 12 and 22 of 2005, the latter as executor of the estate of his late mother and that otherwise he has issued proceedings only in response to those initiated by others. It is his view that Lydiard Financial Services should be declared vexatious. However, it is clear that the institution of legal proceedings is not confined to instances where Mr Moran has been the initiating party. The section has been held to be sufficiently wide to strike at groundless and vexatious proceedings instituted by way of appeal or a review in proceedings initiated by another. Accordingly, it is no answer to the application to say that others started it or that he is pursuing the rights of others as Mr Moran seems to suggest when he says he has issued proceedings as executor of his late mother's estate. I accept that in each instance Mr Moran is seeking to advance his own cause and is simply seeking other means to relitigate matters which have been previously and conclusively determined against him.

49 The applications in the Federal jurisdictions are not proceedings within the meaning of s.21 of the Supreme Court Act. In determining whether Mr Moran has habitually and persistently issued proceedings which are vexatious, I have had regard only to the proceedings instituted in the Victorian courts.

50 When one looks at the overall impression created by the various proceedings, and I here specifically exclude the proceedings in the Federal jurisdiction; their general character, wide ranging and sometimes bizarre allegations, the relief sought and the frequency with which they are issued, my conclusion is that despite the relatively small number of proceedings, they are nonetheless indicative of someone who is prepared to institute proceedings as a matter of course and entirely without regard to the merits of the case.

51 The proceedings, whether they be by writ, appeal or the laying of private informations, have been variously described by the respective courts as misconceived, hopeless, without prospect of success, vexatious and an abuse of process. It is not that Mr Moran has shown an inability to accept the finality of the decision which has gone against him but rather his response to an adverse decision is to institute further proceedings where there is no prospect of success and where the true purpose of the proceedings is ultimately to relitigate issues concerning the repossession of Clarkes Hill and presumably to continue to relitigate those issues until the property has been restored to him or he is compensated for its loss. I am satisfied that Mr Moran has habitually and persistently instituted proceedings without any reasonable grounds and that such proceedings were vexatious.

52 I turn now to the exercise of my discretion and to that end I must have regard to Mr Moran's conduct as a whole to determine if in all the circumstances an order should be made.

53 Mr Moran has issued a number of proceedings in the Federal Court and High Court. These proceedings are relevant only insofar as they demonstrate that he is prepared to relitigate the issues which have been determined against him and to issue proceedings which objectively can be regarded as without any prospect of success. This demonstrates that Mr Moran's attitude and demeanour towards litigation is that he will institute an appeal or a review almost as a matter of course and this is consistent with the way he has conducted himself throughout the proceedings issued in the Victorian courts. He will simply not let the matter go.

54 Mr Moran has pursued his claim throughout the Victorian courts since he laid the private informations in December 2002. Since that time he has issued, by my reckoning, 12 proceedings[15], none of which have had any real merit. He has appealed twice to the High Court and in each instance special leave was refused. He has issued five proceedings in the Federal Court either by way of an appeal or seeking a review of the decision. He has indicated that he will bring an action claiming conflict of interest on the part of Justice Gordon. He has apparently issued a grand jury application against the Federal Director of Public Prosecutions and the Chief Magistrate of Victoria.

55 I infer from these facts and circumstances that having exhausted the appeal processes he will seize upon any other avenue which may appear open to him. Any favourable comment he sees as reason enough to issue further proceedings. No unfavourable comment, adverse decision or inability to comply with an order deters him from issuing further proceedings. He has shown a complete inability to accept that the matters which he seeks to relitigate have already been conclusively determined as far back as January 1997. He reasons that he has failed in proceedings that he has brought because of technicalities only and that the courts are making findings adverse to him to protect Lydiards because they are a firm of solicitors. It appears that he does not accept that his various proceedings have been issued without any prospect of success. In these circumstances it seems highly likely that Mr Moran will continue to issue proceedings which in one way or another will have as their ultimate goal a favourable review of the decision of Master Patkin.

56 I have come to the conclusion that, having regard to all the circumstances, including Mr Moran's conduct, it is appropriate to grant the application sought and that there is no basis for exempting proceedings number 22 of 2005 from any declaration as those proceedings are simply another attempt to relitigate the same issues which have previously been determined.

57 I am satisfied that it is appropriate to declare John Gerard Moran a vexatious litigant and accordingly I make the following orders.

1. Pursuant to s.21 of the Supreme Court Act 1986 the defendant John Gerard Moran be declared a vexatious litigant.

2. The defendant John Gerard Moran must not without leave of the Court do the following:

(a) continue any legal proceedings (whether civil or criminal) in the Court, an inferior Court or any tribunal constituted or presided over by a person who is an Australian lawyer; or

(b) commence any legal proceedings (whether civil or criminal) in the Court, an inferior Court or any tribunal constituted or presided over by a person who is an Australian lawyer.

[1] Lydiard Financial Services Pty Ltd (previous Cuthbert Nominees Pty Ltd) v Moran [2003] VSC 65.

[4] The special leave applications were heard by Hayne and Hayden JJ.

[6] The Attorney General v Gallow (unreported) Supreme Court 17 July 1981 Gray J.

[8] AG v Weston [2004] VSC 314.

[9] Attorney-General for Victoria v Brian William Shaw [2007] VSC 148.

[11] Lydiard Financial Services Pty Ltd v John Gerard Moran 4250/2002.

[12] Lydiard Financial Services v John Gerard Moran 4250/2003, p.4.

[15] I have counted the proceedings in the Ballarat Magistrates' Court as four individual proceedings.

Victorian Constitution Act 1975

Constitution Act 1975

Constitution Act 1900

At a glance

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