Attorney-General for the State of Victoria v Weston [2004] VSC 314

Supreme Court of Victoria|2004-08-27|Before: WHELAN J

The application for leave to appeal out of time (Proceeding [4]) was dismissed with costs.[48] The reasons were given by Marks J. Marks J held that the application was simply made far too late. He also observed that the application had an added problem, which was that Mr Weston had been unable to make it apparent that there was any question of law involved in the appeal that he sought to litigate.

The Attorney-General submitted that the application for leave to appeal out of time which was dismissed by the Full Court on 25 September 1992 (Proceeding [4]) was vexatious, relying upon the fact that more than one year had elapsed since the AAT determination. I am not prepared to make a finding that this proceeding was vexatious. It seems to me that an appeal under s 52 was a course open to Mr and Mrs Weston and that this application to appeal out of time represented one occasion upon which Mr Weston did take an appropriate course, by way of contrast, for example, with his application under s 49A (Proceeding[3]). It is true that the Court considered that he (together with his wife) took this course after too long a period of delay. That is why the application failed. Many such applications fail for that reason. In the circumstances, notwithstanding the Full Court's rejection of the application, I am not prepared to find that the application was vexatious.

On 12 October 1992 Mr and Mrs Weston made a further application to the Planning Division of the AAT concerning the Shire's drainage works.[49] This application concerned works carried out by the Shire on 5 and 6 February 1992 and between November 1991 and May 1992. This application is referred to as Proceeding [6].

On 16 October 1992 Mr and Mrs Weston filed a Notice of Appeal to the Full Court of the Supreme Court under s 52 and 53 of the Administrative Appeals Tribunal Act 1984 against the decision of the AAT made on 15 September 1992 dismissing the application under s 58(3) of the Planning Appeals Act 1980. This appeal is Proceeding [5].[50]

On 21 October 1992 there were three hearings at the AAT. The first was the hearing of the application under s 49A (Proceeding [3]). The second was a taxation of the costs in the original AAT application (Proceeding [1]). The third was a directions hearing in Proceeding [6].[51]

The amount claimed by the Shire for costs in relation to the original AAT hearing (Proceeding [1]) was $88,894.24. On taxation, this was reduced to $69,940.59. The determination was made by Deputy President Ball.[52] On that hearing Mr Weston appeared with his father-in-law, a Mr J Heffernan. Mr Weston told me that Mr Heffernan had held a position with a legal aid organisation. I assume that he was legally trained. Mr Weston told me that Mr Heffernan had endeavoured to persuade him to give up all of the litigation and that Mr Heffernan had told him that the Shire had indicated they would be reasonable about the payment of costs.[53]

By a letter dated 26 October 1992 Mr and Mrs Weston applied for an order under s 28(3) of the Planning Appeals Act 1980 that all persons in the second drainage claim that they had just instituted (Proceeding [6]) should appear in person. Mr Weston told me in submissions in the current application that he was concerned about the costs that would be incurred as a result of the Shire's legal representation. The s 28(3) application was refused by the President of the AAT on 27 October 1992.[54] The refusal of that application prompted Mr and Mrs Weston to withdraw their second drainage claim (Proceeding [6]), which they did by notice dated 27 October 1992 enclosed in a letter they sent to the Acting Registrar of the AAT on 28 October 1992.[55]

The Attorney-General submitted that the second drainage claim (Proceeding [6]) was "probably vexatious". This submission was made on the basis that one could infer that it was obviously untenable because it was withdrawn after the application concerning legal representation, which the Attorney-General submitted was wholly unmeritorious, had been refused. I do not accept that. It is impossible for me to determine the merits of the second drainage claim (Proceeding [6]). The fact that it was withdrawn in the circumstances referred to does not lead me to conclude it was utterly hopeless. I do not find that it was a vexatious proceeding.

On 2 November 1992 the AAT determined Mr and Mrs Weston's application under s 49A of the Administrative Appeals Tribunal Act 1984 (Proceeding [3]). The application was dismissed.[56] The Tribunal indicated that the orders sought in the application were not orders contemplated by s 49A. An order for costs was again made against the applicants.

The Attorney-General submitted that the proceeding under s 49A (Proceeding [3]) was obviously untenable and in my opinion that is correct. The application was misconceived. Mr Weston said in submissions to me that this application was one he and his wife had worked out as it appeared to be "a cheap way" of bringing an appeal.[57] This was the institution of a vexatious legal proceeding.

By notice dated 2 November 1992 and filed 11 November 1992,[58] Mr and Mrs Weston discontinued their appeal in relation to the dismissal of their s 58(3) application (Proceeding [5]).

The Attorney-General submitted that the appeal (Proceeding [5]) against the rejection of the s 58(3) application was vexatious. It was submitted on behalf of the Attorney-General that the AAT decision in relation to the s 58(3) application was clearly correct. I have already indicated that in my view the s 58(3) application itself was arguable. The appeal was never the subject of any determination and I am not prepared to conclude that it was utterly hopeless because it was discontinued in the circumstances existing in late 1992. I do not find that Proceeding [5] was a vexatious proceeding.

On 8 December 1992 the costs of the s 58(3) application were taxed and reduced from $19,859.93 to $13,119.81.[59]

In December 1992, in Proceeding G274 of 1992 in the County Court, the Shire sought to obtain judgment pursuant to s 50(4) of the Administrative Appeals Tribunal Act 1984 for the costs orders it had obtained. However, the Act which had introduced that section had been proclaimed to come into effect in January 1992 and had provided that it would not apply to proceedings already commenced.[60] Mr Weston employed a firm of solicitors who succeeded in having the irregular judgment set aside. The solicitors were Rigby Cooke. Mr Weston told me in submissions that he obtained an order for costs on a solicitor/client basis in relation to the irregular judgment and the steps taken to set it aside.[61]

The position as it stood at the end of 1992 was as follows:

(1) All of Mr and Mrs Weston's various applications against the Shire had failed and they had incurred liabilities for the Shire's costs in the first drainage claim (Proceeding [1]), the s 58(3) application (Proceeding [2]), the s 49A application (Proceeding [3]), and the second drainage claim (Proceeding [6]). The Shire had entered an irregular judgment for these costs, which would eventually be set aside with costs ordered in favour of the Westons on a solicitor/client basis.

(2) The Westons' former solicitors, Dawes & Vary, continued to sue them for costs. The Westons had a counterclaim against those solicitors (Proceeding [16]), seeking to recover the costs they had incurred in the first drainage claim, the costs which had been awarded against them, and other losses.

1993

Rigby Cooke did not continue acting for Mr and Mrs Weston. Mr Weston told me in the course of his submissions on this application that it was simply too expensive for him and his wife to continue employing them.[62]

In March 1993 the Shire of Rutherglen issued proceeding No MC930819 in the County Court against Mr and Mrs Weston.[63] The statement of claim sought $69,940.59 in relation to the costs of the first drainage claim (Proceeding [1]), and a total of $20,504.21 in relation to the costs of the s 58(3) application to the AAT (Proceeding [2]), the s 49A application to the AAT (Proceeding [3]) and the second drainage claim (Proceeding [6]). The Shire also claimed interest.

Mr and Mrs Weston prepared their own defence and counterclaim, which was dated 18 May 1993 (Proceeding [7]).[64] The defence and counterclaim relied upon an agreement alleged to have been made during the course of the AAT hearing, and made allegations concerning the raising of new questions of law and fact and the making of submissions designed to bias the Tribunal's decision. It also made a claim of trespass on the basis of the alleged undertaking of works causing a direct intrusion of water onto their land; a claim under the Water Act 1989, the Water Act 1958 and the River Improvement Act 1958 as a result of alleged intentional flooding; a claim headed "Unlawful Arrest, False Imprisonment and Malicious Prosecution" in relation to the events in early February 1992 and the police charges heard on 14 August 1992; and a number of other claims including a defamation claim. Proceeding [7] had claims reminiscent of the s 58(3) application (Proceeding [2]), and the second drainage claim (Proceeding [6]) as well as a number of new claims.

On 5 August 1993 Mr and Mrs Weston filed an originating motion in the Full Court of the Supreme Court (Proceeding [8]). [65] Amongst the relief and remedies sought was an order that Mr and Mrs Weston "have leave to continue the appeal . . . which was discontinued by Notice of Discontinuance filed by the Applicants on 2nd November 1992". This is a reference to the previous appeal (Proceeding [5]) concerning the AAT determination of the application under s 58(3). Proceeding [8] was the first of a number of proceedings subsequently taken in an attempt to resurrect that discontinued appeal. The Attorney-General's material indicates that the court file in relation to this proceeding does not disclose any further steps taken beyond the filing of the originating motion.[66] Mr Weston told me in submissions that that was the case.[67]

The Attorney-General submitted that Proceeding [8] was vexatious. Counsel for the Attorney-General relied upon the fact that the application was an attempt to revive a discontinued appeal (Proceeding [5]) by a new proceeding and upon the fact that no step was ever taken by Mr and Mrs Weston in that proceeding. Mr Weston told me in his submissions that the attempt to revive Proceeding [5] was prompted by his belief that the original discontinuance had been obtained by deception.[68] On the material I have I cannot conclude that Proceeding [8], being the first attempt to revive Proceeding [5], was vexatious.

On 30 September 1993, Judge Lewis in the County Court struck out the defendant's defence and counterclaim (Proceeding [7]) in the Shire's cost recovery proceeding; gave the Shire judgment for both the amount of costs claimed together with interest, being a total sum of $101,329.81, and for the costs of the application; gave the defendants leave to file and serve an amended counterclaim; and ordered that there be a stay of execution on the judgment until the determination of the counterclaim or further order.[69] In the latter part of 1993 an amended counterclaim was prepared. It seems from the documents that Rigby Cooke were acting again for Mr and Mrs Weston at this time.[70] By the amended counterclaim dated 28 October 1993, Mr and Mrs Weston made claims to the following effect:

Paras 6-16: a claim relating to the alleged unlawful carrying out of drainage works between February 1992 and September 1992. Paras 17-21: a claim relating to the alleged wrongful arrest and imprisonment on 7 February 1992. Paras 22-24: a claim that the Shire caused the malicious prosecution of Mr Weston on 14 August 1992. Paras 25-28: a claim relating to the unlawfully registered judgment in December 1992. Para 29: a claim relating to an alleged unlawful assault on Mr Weston on 7 February 1992.[71]

At the end of 1993, the position was as follows:

(1) Mr and Mrs Weston's former solicitors, Dawes & Vary, continued to have proceedings on foot against the Westons. Mr and Mrs Weston had counterclaimed and the counterclaim had not been determined (Proceeding [16]).

(2) The Shire of Rutherglen had judgment against the Westons for approximately $101,000 plus costs. The Westons had a stay, pending determination of their counterclaim (Proceeding [7]).

(3) Mr and Mrs Weston had issued a proceeding (Proceeding [8]) in an attempt to revive their appeal (Proceeding [5]) concerning the determination of their application under s 58 (3). No step had been taken in that proceeding and no step ever was taken.

1994

In January 1994 a solicitor named Peter Julian Connor from the firm Constable Connor and Co in Wangaratta began assisting Mr Weston.[72] Mr Weston told me in submissions that Mr Connor initially assisted him on a pro bono basis.[73]

On 18 February 1994, in the County Court costs recovery proceeding issued by the Shire, Judge Higgins determined an application by the Shire seeking to have Mr and Mrs Weston's amended defence and counterclaim (Proceeding [7]) struck out, alternatively an order that it be stayed until the defendants had satisfied the Shire's judgment, and also seeking liberty to execute on the judgment. Judge Higgins did not strike out the claims concerning the alleged unlawful drainage work (paras 6-16 of the amended defence and counterclaim) but he did strike out the wrongful arrest and malicious prosecution claims, the claims concerning the irregular judgment, and the claims concerning wrongful assault. Judge Higgins then determined that there was no set off and that, as the claim that had not been struck out had no connection or nexus with the claim for which the Shire had obtained judgment, the plaintiff ought to have leave to execute on the judgment previously obtained.[74] The Westons appealed from these orders by a Notice of Appeal dated 22 March 1994.[75]

By summons dated 24 March 1994, Mr and Mrs Weston sought to have an order made that Judge Higgins' order be stayed pending the appeal.[76] On 20 April 1994 Judge Curtain ruled that she did not have jurisdiction to entertain that application.[77] Mr and Mrs Weston were represented by counsel before Judge Curtain. They then issued an originating motion in this Court seeking to overturn Judge Curtain's ruling (Proceeding [9]).[78] The originating motion records that Constable Connor & Co were acting as solicitors for Mr and Mrs Weston on that application. On 6 May 1994 a summons was issued in Proceeding [9] seeking an order restraining the Shire from executing upon the judgment.[79] On 18 May 1994 Beach J dismissed that summons. [80]

In March 1994 the hearing of the proceeding in which Dawes & Vary sought to recover their costs and in which Mr and Mrs Weston had counterclaimed (Proceeding [16]) was commenced before Judge Cullity. Unfortunately, Judge Cullity discovered that he had a conflict of interest and the trial was aborted on the fifth day.[81]

In June and July 1994 Mr and Mrs Weston re-financed Norong Park with a loan of $400,000 from solicitors who conducted a contributory mortgage practice in Geelong under the name Price Higgins. The lenders were two solicitors named Bannister and Hartnett and they took a mortgage to secure the loan.[82] From the settlement proceeds, some $112,000 was paid to the Sheriff to meet the various costs orders in favour of the Shire.[83]

By a summons filed 18 July 1994 the Shire sought to have Proceeding [9] (the review of Judge Curtain's decision) dismissed.[84] On 1 August that proceeding was dismissed by consent.[85]

The Attorney-General submitted that Proceeding [9] was vexatious. The material I have simply does not enable me to reach that conclusion. I am unable to conclude that the proceeding was hopeless merely because it was dismissed by consent. It was not suggested that the Westons were acting for any improper purpose.

Whilst Mr Connor may have commenced acting for Mr and Mrs Weston on a pro bono basis, that basis of engagement did not continue. In August 1994 Mr Weston mortgaged Norong Park to Mr Connor to secure both incurred and future legal costs.[86]

In July 1994 negotiations were held, as a result of which, it was subsequently found, the claim by Dawes & Vary and Mr and Mrs Weston's counterclaim (Proceeding [16]) were settled on the basis that each party would withdraw their respective claims and bear their own costs.[87] The negotiations were conducted by Mr Connor on behalf of Mr and Mrs Weston (although whether he was acting properly on instructions subsequently became controversial) and Mr Alan Norster of the firm Phillips Fox on behalf of Dawes & Vary.

On 29 August 1994 Judge Hart made an order giving Dawes & Vary leave to amend their reply and defence to counterclaim to allege a settlement agreement made on 25 July 1994.[88] By a reply, which they prepared themselves, Mr and Mrs Weston disputed the settlement, alleging, amongst other things, duress and undue influence by Mr Connor.[89] On 21 September 1994 Judge McNab in the County Court ordered that both the claim and the counterclaim (Proceeding [16]) be dismissed and that Mr and Mrs Weston pay Dawes & Vary's costs incurred after 28 July 1994.[90] One might have thought that, absent an appeal (and there was no appeal), Judge McNab's judgment would have constituted the end of Proceeding [16]. Mr Weston, however, had another application to make in Proceeding [16], although he did not make it for over three years.

The position at the end of 1994 was as follows:

(1) Mr and Mrs Weston's counterclaim in the Dawes & Vary proceeding (Proceeding [16]) had been dismissed. A further costs order had been made against them.

(2) Using funds borrowed from Bannister and Hartnett, Mr and Mrs Weston had met their liabilities under the various orders for costs in favour of the Shire. Their counterclaim against the Shire (Proceeding [7]) had only survived a strike-out application in part. Mr and Mrs Weston's appeal from the decision of Judge Higgins striking out most of the counterclaim and giving the Shire leave to execute was still pending.

1995

On 4 January 1995 Mr Connor issued a writ against Mr and Mrs Weston, seeking possession of Norong Park.[91] Mr and Mrs Weston filed a defence and counterclaim on 31 March 1995 (Proceeding [17]).[92] The defence and counterclaim alleged, amongst other things, that Mr Connor "may be in breach of Section 81 sub-Section 1 of the Crimes Act 1958 in seeking possession of the Firstnamed Defendant's property under the alleged mortgage".[93] Section 81(1) provides for the crime of obtaining property by deception. The defence and counterclaim also alleged fraudulent misrepresentation. It alleged that Mr Connor "sought exclusive control of the Defendants matters in order to conspire with the Defendants first solicitor's solicitor and the solicitor's liability committee to force the Defendants to accept the offer of settlement made by the Defendants first solicitor and to influence the Firstnamed Defendant to provide a larger mortgage to the Plaintiff". There are a number of other allegations of fraud. There is an allegation that Mr Connor "conspired" with Mr Alan Norster of Phillips Fox to prevent the defendants from prosecuting their counterclaim against Dawes & Vary. The defence and counterclaim was amended a number of times throughout 1995. To the allegations of fraud and undue influence were added allegations of breach of fiduciary duty.[94]

On 10 October 1995 the Appeal Division of the Supreme Court (Winneke P, Phillips and Hayne JJA) heard the appeal from the orders made by Judge Higgins on the counterclaim against the Shire (Proceeding [7]). Judgment was delivered the next day, 11 October 1995.[95] Mr and Mrs Weston each appeared in person. Mrs Weston informed the Court that she was no longer interested in pursuing either the appeal or the counterclaim and the Court accordingly gave her leave to take no further part in the appeal.

The judgment in the appeal from the orders of Judge Higgins set out a considerable part of what Winneke P referred to as "the sorry and regrettable history" of the matter. The President observed that by March 1993 the affair between Mr Weston and the Council "appears to have overtaken Mr Weston's life".

Mr Weston, pursuing the appeal alone, had a measure of success. Upon the imposition of conditions about particulars and the like, he was permitted to raise, one way or another, many of the issues he had previously sought to pursue. The Court observed that, as the Shire's judgment had been paid, there was no further point in dealing with the issue concerning Judge Higgins' failure to grant a stay of execution of the judgment in favour of the Shire, although Winneke P indicated that for his part he was satisfied that Judge Higgins was "clearly correct". As to the further conduct of the matter the President observed:

"It is, in my view, a relatively simple factual dispute which, subject to compliance with the orders of this court, is now in a condition where it ought to be litigated with dispatch."

In October 1995 Mr Weston defaulted on the loan advanced by Bannister and Hartnett.[96] On 29 November 1995 Bannister and Hartnett issued proceedings in this Court.[97]

In November 1995 Mr Weston delivered an amended defence and counterclaim in the Shire costs recovery proceeding (Proceeding [7]).[98] He also unsuccessfully applied to add a number of parties, being officers of the Solicitors' Liability Committee, Mr Alan Norster of Phillips Fox, Mr John Adams of Dawes & Vary, and his wife, Patricia Mary Weston, to his counterclaim in the Connor proceeding (Proceeding [17]).[99] On 13 December 1995 substantial parts of his counterclaim in the Connor proceeding (Proceeding [17]) were struck out by Master Wheeler with leave to file a further amended defence and counterclaim.[100]

The position at the end of 1995 was as follows:

(1) Supreme Court proceedings were on foot between Mr Weston and his former solicitor, Peter Julian Connor, in which Mr Weston had made allegations in a counterclaim (Proceeding [17]) of a very serious nature.

(2) Supreme Court proceedings were also on foot between Mr Weston and his financiers, Bannister and Hartnett.

(3) The counterclaim in the Shire costs recovery proceeding in the County Court (Proceeding [7]) had substantially survived as a result of the appeal in October 1995. The counterclaim was thereafter to be pursued by Mr Weston alone.

1996

On 11 January 1996 Mr Weston filed a defence and counterclaim in the proceedings instituted by Bannister and Hartnett (Proceeding [20]).[101] The defence and counterclaim denied that any money was owed and denied that the deed of mortgage was the deed of the defendant. It alleged unconscionable exploitation by the plaintiffs of what was alleged to be Mr Weston's special disability.

The trial of Mr Connor's possession claim and the counterclaim against Mr Connor (Proceeding [17]) was held before Ashley J between 5 and 14 June 1996. It is clear from the eventual judgment that Ashley J had serious concerns as to the form and content of the defence and counterclaim. It was further amended during the trial.

Bannister and Hartnett had managed to obtain final judgment against Mr Weston on 24 April 1996, but an appeal from that judgment was allowed by consent by the Court of Appeal on 4 October 1996 "in consequence of a point unearthed by the bench".[102]

In July and August 1996 there were further developments. On 23 July 1996 the Deputy Registrar of Firearms, Mr John McCarthy, issued a Notice of Cancellation of Mr Weston's shooter's licence. Mr Weston had a right of appeal to a magistrate. He appealed to the Magistrates' Court at Shepparton without success.[103] It seems that the Deputy Registrar had acted as a result of being alerted to certain matters put by Mr Weston in relation to his mental condition to Ashley J.[104] On 12 August 1996 a search warrant was issued by the Magistrates' Court at Wangaratta[105] and charges were laid against Mr Weston under the Firearms Act 1958 consequent upon that search. Those charges were dismissed in due course at the Wangaratta Magistrates' Court on 5 December 1996.[106] These events are relevant as they prompted two proceedings instituted by Mr Weston, which were dealt with by Harper J, and which the Attorney-General submits were vexatious. The first such proceeding was an originating motion seeking to attack the issue of the search warrant (Proceeding [23]).[107] This application was filed on 23 September 1996. Amongst the relief sought was the following (I have corrected some spelling):

"Relief in the nature of prohibition granting a permanent and irrevocable injunction restraining the second defendant and any other officers of the Victorian Police from providing any reports, information or laying charges pursuant to any Act of the State of Victoria without obtaining sworn statements from complainants and providing those statements to the plaintiff."

Ashley J gave judgment in Proceeding [17] (Connor) on 31 October 1996.[108]

Ashley J set out the history of amendments and strike-outs of the defence and counterclaim and then attempted to summarise the defence. He said (at p 3):

"Without attempting a comprehensive description of the Defence, what can generally be said is this: that throughout the present litigation the defendant has pursued a series of serious allegations against the plaintiff. He has alleged that the plaintiff conspired with a wide range of persons to injure him, that the plaintiff acted negligently in his affairs, in breach of retainer and in breach of fiduciary duty and that the plaintiff exercised undue influence over him. The defendant has further alleged that he did not voluntarily execute the mortgage upon which the plaintiff relies. He asserts that the effect of an agreement made between he and the plaintiff is that no liability to pay the plaintiff his costs and disbursements has ever arisen (and could ever arise)."

Ashley J formed strong views about the reliability of Mr Connor on the one hand and Mr Weston on the other. He found Mr Connor to be reliable; he found that Mr Weston was not. Ashley J found that the serious allegations made by Mr Weston against Mr Connor were without foundation. In this respect I refer to the following observations:

"He made serious allegations against the plaintiff and other legal practitioners without there being any proper foundation for doing so."

"I specifically reject that allegation, which was just one of a number of grave and unfounded allegations made by the defendant in this proceeding."

"The conspiracy pleading is unsupported by evidence and is a nonsense. A regrettable aspect of the matter is that these irresponsible allegations were ever made."

"There is not the slightest evidence of a conspiracy such as the defendant has alleged."

"The basis upon which participation in the asserted conspiracy by Mrs Weston's parents was sought to be made out (T566-567) was ludicrous."

Ashley J gave judgment for the plaintiff in the sum of $77,686.62 plus interest and ordered that the defendant give up possession of the mortgaged property. On the counterclaim, there was judgment for the defendant by counterclaim. By an order made 14 November 1996 his Honour corrected some of the figures and made allowance for a payment previously made to the plaintiff pursuant to an order of Beach J.[109]

The Attorney-General submitted that the counterclaim against Mr Connor (Proceeding [17]) was vexatious. In relation to this counterclaim (Proceeding [17]), the Dawes & Vary counterclaim (Proceeding [16]), the appeal from Ashley J (Proceeding [18]) and in relation to an application subsequently made to Kellam J to set aside Ashley J's decision (Proceeding [19]), Mr Weston submitted to me in response that I would have to read each of the judgments and make up my own mind.[110] It seems to me that a reading of Ashley J's judgment, fortified by the judgment in the subsequent appeal to which I will refer, can result in only one conclusion. The counterclaim was utterly hopeless and was a vexatious proceeding.

By Notice of Appeal dated 13 November 1996 (Proceeding [18]) Mr Weston appealed from Ashley J's decision.[111]

The position at the end of 1996 was as follows:

(1) Mr Connor had obtained judgment against Mr Weston and Mr Weston's counterclaim had been dismissed (Proceeding [17]). Mr Weston had instituted an appeal (Proceeding [18]).

(2) Bannister and Hartnett's claim and Mr Weston's counterclaim (Proceeding [20]) were awaiting trial. In December 1996 Master Kings fixed the matter for hearing on 28 February 1997.[112]

(3) Mr Weston's counterclaim in the County Court against the Shire (Proceeding [7]) was awaiting trial.

(4) Mr Weston's originating motion concerning the firearms search warrant (Proceeding [23]) was awaiting trial.

1997

On 7 February 1997 Cummins J dismissed an appeal instituted by Mr Weston from Master Kings' order fixing the Bannister and Hartnett proceeding and counterclaim (Proceeding [20]) for hearing on 28 February 1997.[113]

On 14 February 1997 Mr Weston issued a further originating motion concerning the cancellation of his firearms licence and the rejection by the Magistrates' Court at Shepparton of his appeal against that cancellation (Proceeding [24]).[114]

Between 3 and 7 March 1997 Southwell J heard the Bannister and Hartnett recovery proceeding and Mr Weston's counterclaim against Bannister and Hartnett (Proceeding [20]). He gave judgment on 13 March 1999.[115]

Southwell J made an order for possession of Norong Park and gave Bannister and Hartnett judgment for the sum of $487,470.44. He dismissed Mr Weston's counterclaim (Proceeding [20]) and ordered that Mr Weston pay the plaintiffs' costs of the whole of the proceeding on a solicitor/own client basis.

Southwell J summarised Mr Weston's defence (at pp 4 - 5 of the judgment) in terms that revealed that it had the following elements:

(1) There was no mortgage and no monies were advanced. His Honour said these defences were abandoned.

(2) Non est factum.

(3) The walnut trees on the property were not part of the security interest. His Honour said the defendant conceded this defence was not maintainable.

(4) Connor, with the knowledge of and as agent for the plaintiffs, procured the defendant to execute the mortgage. His Honour commented that there was no evidence upon which any finding of agency between Connor and the plaintiffs could be made.

(5) Breach of duty by Connor as agent for the plaintiffs in exercising undue influence over the defendant.

His Honour also observed that the pleading contained allegations of a conspiracy between the plaintiffs, Connor, the President of the Law Institute, the Solicitors' Liability Committee of the Law Institute, and the solicitor for that committee, in litigation between the defendant and Dawes & Vary. The predominant purpose of the conspiracy was said to be to defraud and injure the defendant.

In the judgment, Southwell J made a number of observations indicating the groundless character of the allegations that were the basis of Mr Weston's counterclaim (Proceeding [20]).

At page 8 his Honour made comment on the conspiracy allegation:

"Indeed upon the evidence I regard the proposition as absurd."

". . . it is the defendant's contention that this apparent negligence tended to demonstrate the conspiracy relied upon. Even were I to have been satisfied of some negligence on Connor's part - and I am not so satisfied - I would again regard the proposition that this negligence tended to prove the conspiracy as absurd."

In relation to the non est factum defence his Honour observed at page 12:

"In any event, his own evidence makes nonsense of the defence."

His Honour made observations as to a "misapprehension" that the defendant held, and referred to the "patent improbabilities" of the defendant's version of events (pages 13 and 14).

His Honour asked the defendant to set out in writing precisely the acts and statements relied upon by him as evidence of the alleged conspiracy. After analysing that document, his Honour observed at page 16:

"In my opinion, a reading of the document provided by the defendant demonstrates the flimsiness of the basis of the allegations of fraud and conspiracy. I should state that I regard these allegations as wild and wholly unsubstantiated."

By Notice of Appeal dated 17 March 1997 (Proceeding [21]), Mr Weston appealed from Southwell J's judgment.[116] Amongst other grounds in that notice was the following:

"The trial judge acted with bias to assist the respondents cause by tricking the Appellant into withdrawing his claim to privilege to the evidence of his former solicitor Peter Julian Connor."

By summons dated 24 March 1997, filed on 10 April 1997 (Proceeding [10]), in Supreme Court Proceeding No 10255 of 1992 (Proceeding [5]), Mr Weston sought an order that that proceeding, which had been discontinued on 11 November 1992, be continued, together with certain other orders.[117] This constitutes the second attempt to revive the discontinued appeal in Proceeding [5]. The first attempt was the originating motion filed 5 August 1993 (Proceeding [8]) in relation to which no step was taken. Proceeding [10] was dismissed by the Court of Appeal on 18 April 1997.[118]

The Attorney-General submitted that Proceeding [10] was vexatious. Mr Weston's explanation to me for this second attempt to revive the discontinued appeal relating to the s 58(3) application was to say, "10 years down the track you find out that they were going to split the farm up between them",[119] a reference to a conspiracy later alleged by Mr Weston in other proceedings. Mr Weston also told me that in the hearing Winneke P had offered him leave to appeal against the substantive AAT decision (Proceeding [1]) out of time but that he had rejected that offer. Mr Weston told me, "I didn't want to appeal the whole thing out of time, I just wanted this costs situation rectified and that was it".[120] The attempt to revive the discontinued s 58(3) appeal was in substance an attempt to appeal or re-litigate a matter otherwise finally determined. It was utterly hopeless. Mr Weston's explanation does not relevantly bear on this conclusion. I find that Proceeding [10] was a vexatious proceeding.

On 1 July 1997 Harper J heard and decided the two firearms proceedings (Proceeding [23] and [24]).[121] Harper J found that Mr Weston's submissions in support of his application in Proceeding [24] were "fundamentally misconceived". It is clear that Harper J held a similar view in relation to Proceeding [23], although his reasons are expressed more briefly.

Mr Weston told me in submissions that in these proceedings (Proceedings [23] and [24]) he was trying to "sort out" the criminal proceedings concerning the firearms charges. He told me that the law had now been rewritten to put in some of the safeguards that should have been in the Act years before, the sort of safeguards that he was seeking to have applied to him in his applications in Proceedings [23] and [24]. He told me that he took the matter as far as he could but that "no one seemed to want to decide it properly". He asked me, rhetorically, how could he be considered vexatious when he had succeeded in amending the law to comply to some extent with the laws of natural justice?[122] Mr Weston's views on the processes of the Registrar of Firearms and the issuing of search warrants might or might not have validity. For present purposes the issue is whether the proceedings which he issued were vexatious or not. They were misconceived, but, on the material I have, I am not persuaded that they were so hopeless as to be vexatious.

By a combined Notice of Appeal dated 14 July 1997[123] (Proceedings [25] and [26]), Mr Weston appealed against Harper J's decisions in Proceedings [23] and [24].

On 21 and 22 July 1997 the Court of Appeal heard Mr Weston's appeal (Proceeding [18]) from the judgment of Ashley J in the proceeding involving Mr Connor (Proceeding [17]).

On 8 September 1997 the Court of Appeal heard and determined Mr Weston's appeal (Proceeding [21]) from the judgment of Southwell J in the proceeding involving Bannister and Hartnett (Proceeding [20]).[124] On all matters of substance that appeal failed. The appeal succeeded, however, on an issue relating to reserved costs. The Court of Appeal varied the costs orders in Mr Weston's favour.

The Attorney-General conceded that the appeal in the Bannister and Hartnett proceeding (Proceeding [21]) was not vexatious as Mr Weston did succeed on a costs issue. I accept this approach. The reasons of the Court of Appeal, however, do not in any way detract from the conclusions expressed by Southwell J on the counterclaim (Proceeding [20]). Indeed, the Court of Appeal's reasons fortify those conclusions. The Court of Appeal rejected all grounds of appeal other than on the reserved costs issue and otherwise preserved Southwell J's orders, including the order for solicitor/own client costs. The Court of Appeal ordered Mr Weston to pay 75% of the respondents' costs of the appeal on a solicitor/own client basis, the reduction to 75% being referable to the costs issue upon which Mr Weston had succeeded.

In relation to the Bannister and Hartnett proceedings at first instance (Proceeding [20]) and on appeal (Proceeding [21]), Mr Weston told me that if his earlier application for a stay of the Shire's judgment for costs in the County Court had been successfully made to the Court of Appeal, a matter in relation to which he blames Mr Connor, then the Bannister and Hartnett loan would never have been needed. He said to me that he never wanted the Bannister and Hartnett mortgage and always felt there was something wrong about it.[125] Mr Weston's submissions did not address the untenable nature of the allegations he made against Bannister and Hartnett. In my view, Proceeding [20] was vexatious. Proceeding [21] was not.

On 10 October 1997[126] the Court of Appeal ordered that Mr Weston give security for the costs of his appeals in the firearms matters (Proceedings [25] and [26]) and that, if the security were not given, the appeal would be dismissed with costs. Mr Weston failed to give the security.[127] For the reasons referred to in relation to Proceedings [23] and [24], I do not find that Proceedings [25] and [26] were vexatious proceedings.

It will be recalled that on 21 December 1994 Judge McNab had dismissed the Dawes & Vary claim and counterclaim (Proceeding [16]). I have observed that, absent an appeal, and there was no appeal, one might have expected that that judgment would have constituted the conclusion of Proceeding [16]. It was not to be, however. On 6 November 1997 Mr Weston issued a summons[128] seeking to have the orders of Judge McNab set aside and to have the matter set down for trial "with priority".

The basis of Mr Weston's application, so far as is apparent from his supporting affidavit, is that the decision of Judge McNab was only made possible because his then solicitor, Mr Connor, had withheld documents from him in order to fraudulently obtain an adverse finding from Judge McNab and so enforce his security against Mr Weston. That being so, Mr Weston claimed, the judgment should be set aside and a re-trial ordered. Mr McArdle's affidavit of 25 September 2001 deposes (para 106) that the County Court computer register shows an order was made on this application in the Practice Court by Judge Lewis but a search of the file does not reveal a copy of that order.

In relation to the counterclaim in the proceeding brought by Dawes & Vary (Proceeding [16]), the Attorney-General submitted that the proceeding initially "may well have been vexatious" but that it is not possible to say given the settlement. The Attorney-General submitted that when the proceeding was maintained in the face of a settlement it "probably" became a vexatious proceeding. The Attorney-General submitted that the application to set aside Judge McNab's judgment was a separate vexatious proceeding. On the material before me I cannot find that the counterclaim against Dawes & Vary was utterly hopeless. It seems to me, however, that the application made by the summons of 6 November 1997 was utterly hopeless (or is utterly hopeless if it remains on foot). That summons was the institution of a vexatious proceeding in my view.

In November 1997 Mr Weston lost possession of Norong Park.[129]

The position at the end of 1997 was as follows:

(1) Mr Weston had failed in his counterclaim against Mr Connor (Proceeding [17]), and his appeal had been heard (Proceeding [18]) but not determined.

(2) Mr Weston had failed in his counterclaim against Bannister and Hartnett (Proceeding [20]) and his appeal (Proceeding [21]) had been heard and had been determined against him, save in relation to an issue of reserved costs.

(3) Mr Weston's counterclaim (Proceeding [7]) against the Shire remained on foot in the County Court.

(4) Mr Weston's two proceedings concerning the firearms matters (Proceedings [23] and [24]) had been dismissed by Harper J on the ground that they were each misconceived and his appeals (Proceedings [25] and [26]) had been dismissed as he did not provide the security ordered.

(5) Mr Weston had unsuccessfully applied (Proceeding [10]) to revive his discontinued appeal concerning the s 58(3) AAT decision (Proceeding [5]).

(6) Mr Weston had applied to set aside the orders of Judge McNab in Proceeding [16].

1998

By writ dated 3 February 1998, filed in the County Court on 5 February 1998[130] (Proceeding [27]), Mr Weston sued eight police officers and the Chief Commissioner of Police in relation to the events on 7 February 1992. In due course this proceeding was heard, together with his counterclaim against the Shire (Proceeding [7]), by Judge Dove.

On 9 February 1998 the Court of Appeal delivered judgment in Mr Weston's appeal (Proceeding [18]) from the judgment of Ashley J in the claim and counterclaim (Proceeding [17]) concerning Mr Connor. The appeal was dismissed.[131] The character of the appeal is revealed in what was decided on the question of costs. Charles JA, with whom Callaway and Batt JJA agreed, said as follows:

"In my opinion this is an appropriate case for the Court to order that costs be paid on a solicitor and own client basis. The grounds of appeal were some 77 in number. They included a large number of allegations of criminal conduct, conspiracy, malice and fraud made variously against the respondent and his counsel, and, so far as malice and bias were concerned, also against the judge. There was, in my opinion, no basis of any kind established for the making of these allegations and they should not have been made. In my view, the unjustified making of these allegations justifies, in the present unusual case, an order of solicitor-own client costs, and I would so order."

Mr Weston has often proceeded, after unsuccessful attempts to obtain relief in the Court of Appeal, to make applications for special leave to appeal to the High Court. As these applications are not proceedings within the meaning of s 21 of the Supreme Court Act 1986, I have not referred to them and have not had regard to them in considering whether the requirements of s 21 have been met. At this point, however, it is necessary to refer to the application for special leave in the Connor matter (Proceedings [17] and [18]), as it seems to me to reveal aspects of Mr Weston's attitude and approach which will be relevant to the issue of whether an order ought to be made if the requirements of s 21 are met. The application for special leave in the Connor proceeding[132] commences the section headed "Grounds" as follows (I have corrected some spelling):

"That their Honours failed to disclose their conflict of interest in their knowledge of Xavier Connor, father of the Respondent, who was a Commissioner to the Senate Select Committee into allegations against High Court Judge Lionel Murphy. That their Honours acted with malice and criminal bias to cover up the criminal activities of the respondent who is the son of Xavier Connor, who covered up for Mr Justice Lionel Murphy."

The reference to "their Honours" appears to be to Charles, Callaway, Hayne and Batt JJA.

As at March 1998, Mr Weston had brought counterclaims against Bannister and Hartnett (Proceeding [20]) in one proceeding and against Peter Julian Connor (Proceeding [17]) in another, which had been dismissed by Southwell J and Ashley J respectively. For relevant purposes, his appeals had been similarly dealt with by the Court of Appeal. By a summons dated 22 March 1998, filed on 24 March 1998 (Proceedings [22]),[133] Mr Weston made application in the Trial Division of the Supreme Court for an order that the judgment of Southwell J in the Bannister and Hartnett proceeding (Proceeding [20]) be "vacated". By summons dated and filed 24 March 1998, Mr Weston made a similar application (Proceeding [19]) in relation to the judgment of Ashley J in Proceeding [17] involving Mr Connor.[134]

On 30 March 1998, Kellam J dismissed Proceedings [19] and [22].[135] He observed that he could perceive "no jurisdictional basis upon which a puisne Judge of the Supreme Court of Victoria may vacate a judgment and orders made by other puisne Judges after trial in the circumstances proposed here."

Counsel for Connor did not seek an order for costs. Counsel for Bannister and Hartnett did. In relation to that application, Kellam J observed:

"It is in such circumstances appropriate in my view to take into account the unjustified nature of the allegations in question and the complete futility of the application in making an order that the costs of the respondent to the summons in the matter of Bannister and Hartnett be taxed as between solicitor and client."

Proceedings [19] and [22] were utterly hopeless. They were vexatious proceedings.

By a summons dated 27 March 1998, filed 7 May 1998[136] (Proceeding [11]), in Supreme Court Proceeding No 9660 of 1992 (Proceeding [4]), Mr Weston sought leave to appeal out of time pursuant to s 52 of the Administrative Appeals Tribunal Act 1984 from the determination of the AAT of 14 June 1991 (Proceeding [1]). Proceeding [4], being the earlier application to appeal out of time, had been dismissed with costs on 25 September 1992.

On 7 May 1998 Mr Weston filed a further summons bearing the date 27 March 1998 (Proceeding [12]), in Supreme Court Proceeding No 10255 of 1992 (Proceeding [5]). The summons sought leave to continue that appeal. This was the appeal concerning s 58(3) which had been discontinued on 11 November 1992. An originating motion had been issued seeking to "continue" that appeal on 5 August 1993 (Proceeding [8]) in which no step was ever taken, and an earlier summons (Proceeding [10]) to the same effect had been dismissed on 18 April 1997.[137] This summons (Proceeding [12]) constituted the third attempt to revive the discontinued appeal in Proceeding [5].

By summons dated 29 April 1998, also filed in the Court of Appeal on 7 May 1998 (Proceeding [13]), Mr Weston sought leave to appeal out of time from orders made in the Shire's cost recovery proceeding in the County Court in which Mr Weston had counterclaimed (Proceeding [7]), for consolidation of the proceeding with Proceeding [12], repayment of monies by the Shire and various other orders.[138] The orders from which Mr Weston sought leave to appeal were orders of Judge Lewis made on 30 September 1993, where Judge Lewis had given the Shire judgment with a stay of execution, and orders made on 15 December 1997.

Proceedings [11], [12] and [13] were heard by Phillips and Kenny JJA on 29 May 1998, and were each dismissed.[139] Phillips JA observed that a major difficulty with Proceeding [12] was that it was so late. He also observed that it appeared to be "merely a rerun" of the last application (Proceeding [10]). In relation to Proceeding [11], Phillips JA observed that "there is no ground for such leave to appeal out of time being granted", given the nearly eight years' delay and the earlier refusal of an application to appeal out of time. In relation to Proceeding [13] Phillips JA observed:

"Mr Weston is once again seeking leave to appeal against a judgment many years after the event, and I have heard nothing today to justify this court's now granting that leave out of time."

Each of Proceedings [11], [12] and [13] was utterly hopeless. Each was in substance an attempt to appeal or re-litigate a matter otherwise finally determined. In his submissions, Mr Weston said to me, "Yes, I have had another go at it in `98".[140] He submitted that he thought that he had a chance to succeed, given the observation which he told me Winneke P had made to him in one of his earlier applications (see above). Proceedings [11], [12] and [13] were each vexatious proceedings instituted by Mr Weston.

The position at the end of 1998 was as follows:

(1) Mr Weston's counterclaim against the Shire (Proceeding [7]) and his new proceeding against the police (Proceeding [27]) were pending in the County Court.

(2) Mr Weston's appeals in the Connor matter (Proceedings [17] and [18]) and the Bannister and Hartnett matter (Proceedings [20] and [21]) had been dismissed, and applications to `vacate' the respective trial judges' orders (Proceedings [19] and [22]) had also failed.

(3) Mr Weston had attempted to revive two of his previous appeals and to appeal out of time from Judge Lewis' orders (Proceedings [11], [12] and [13]). These attempts had failed.

1999

Throughout 1999, a number of directions hearings were held and various applications were made in the County Court proceedings against the Shire (Proceeding [7]) and the police (Proceeding [27]). On 25 November 1999 the two proceedings were fixed for hearing together on 31 January 2000.[141]

By a writ dated 14 January 2000, Mr Weston issued a further proceeding against the Shire in the Supreme Court (Proceeding [14]). To this proceeding he added as defendants the Shire's solicitor, Andrew Patrick Melville (second defendant); the Shire's expert witness in the original 1991 AAT proceeding, John Winston Tilleard (third defendant); the Shire engineer, Adrian Dennis Gallagher (fourth defendant); the purchaser on the mortgagee sale of Norong Park, William Robert Baxter (fifth defendant); and the estate agent on the mortgagee sale of Norong Park, Anthony Dennis Gillman (sixth defendant).[142]

The material does not make it clear, but it appears from a ruling Judge Dove made on 31 January 2001 that there was an aborted trial of Proceedings [7] and [27] before Judge Walsh in February 2000.[143]

Mr Weston amended the statement of claim in his new writ against the Shire and others (Proceeding [14]) a number of times throughout 2000 and there were a number of strike out applications.[144] These included a successful application by the fifth defendant for the claim against him to be dismissed. An order to that effect was made by the Master on 9 May 2000.[145] On 1 June 2000, the Master dismissed the proceeding against the first, second, fourth and sixth defendants after applications under Rules 23.01, 23.02 and 23.03.[146] The orders of 1 June 2000 were appealed against.[147]

On 31 July 2000 the trial in the County Court of Mr Weston's counterclaim against the Shire (Proceeding [7]) and his writ against the police (Proceeding [27]) began before Judge Dove. The trial occupied the Court for the next 10 months, without significant interruption other than for the Christmas break.

The position at the end of 2000 was as follows:

(1) The trial of Mr Weston's counterclaim against the Shire (Proceeding [7]) and his writ against the police (Proceeding [27]) was being heard by Judge Dove in the County Court and had already occupied some five months of court time.

(2) Mr Weston had issued a further proceeding against the Shire and others (Proceeding [14]) which had been the subject of a number of strike outs and amendments. His appeal against the Master's dismissal of proceedings against four of the defendants had been referred to the Listing Master to fix a date for hearing.[148]

2001

In early 2001 a controversy arose in the course of the trial before Judge Dove concerning the late delivery by the Shire of expert witness statements, and in particular an expert witness statement of one Dr Keller. Mr Weston was representing himself. He called as part of his case expert evidence from Dr Russell, who had given evidence on behalf of Mr Weston and his wife in the AAT proceeding in 1990. After hearing submissions from senior counsel for the Shire, Mr Charles Francis QC, on 30 January 2001,[149] Judge Dove delivered a ruling on the matter on 31 January 2001.[150] Judge Dove rejected the application by the Shire to rely on what he described as the "purported order 44 statement of Dr Keller and to call him to give evidence in reliance upon it".[151] In the course of the ruling, Judge Dove made the following statement:

"As Dr Keller's report includes a commentary upon Dr Russell's evidence, I am driven to the conclusion that the Shire's advisers were deliberately withholding from Mr Weston any materials which might assist him; thus denying Dr Russell the opportunity to comment upon Dr Keller's opinions whilst reserving to themselves the opportunity to have Dr Keller comment upon those of Dr Russell, secure in the knowledge that a like and fair opportunity was being denied Dr Russell. I reiterate that I am satisfied from the materials in front of me that the course taken was deliberate. Where the opponent is unrepresented it seems to me that, consistent with their duties to their clients, the legal advisers for other parties must act to ensure that, like Caesar's wife, they are above suspicion."[152]

The trial before Judge Dove concluded on 16 May 2001. The trial occupied 119 hearing days and resulted in 7,382 pages of transcript and approximately 20,000 pages of exhibits. Judgment was reserved.

Mr Weston's appeal against the Master's orders of 1 June 2000, dismissing his claim against the remaining defendants in Proceeding [14], was heard and dismissed by Balmford J on 29 May 2001.[153] Balmford J accepted a submission in relation to the claims against the first to fourth defendants that the claims were untenable as they sought a retrial of County Court Proceeding 819 of 93 (the Shire's claim for recovery of costs), which she held the Supreme Court had no jurisdiction to entertain.

In the course of argument before Balmford J on 29 May 2001, Mr Weston had produced a draft of an amended writ which had included new allegations. Balmford J did not consider it to be appropriate to allow further amendments at that stage and observed:

"As has been suggested, you may find it appropriate to issue fresh proceedings, but that's a matter for another day."[154]

By Notice of Appeal dated 12 June 2001 and filed on 15 June 2001 (Proceeding [15]),[155] Mr Weston appealed from the orders of Balmford J of 29 May 2001 in relation to Proceeding [14].

By summons dated 20 August 2001 and filed on 21 August 2001[156] (Proceeding [28]) filed in Supreme Court Proceeding No. 9660 of 1992 (Proceeding [4]), Mr Weston again sought an order that he be granted leave to appeal out of time from the determination of the AAT on 14 June 1991 (Proceeding [1]). The first such application (Proceeding [4]) had been dismissed with costs on 25 September 1992. A second application had been made in May 1998 (Proceeding [11]) and had been dismissed on 29 May 1998 by the Court of Appeal. Proceeding [28] accordingly constituted the third application for leave to appeal out of time, the two prior applications having been dismissed. The summons also sought an order: "That this proceeding be consolidated with proceeding no 10255 of 1992". Proceeding 10255 of 1992 was Proceeding [5], which was the appeal concerning the s 58 (3) application. That proceeding had been discontinued and there had been three earlier applications to revive it (Proceedings [8], [10] and [12]), two of which (Proceedings [10] and [12]) had been dismissed after argument. Thus, it seems to me that this summons (Proceeding [28]) constitutes the fourth attempt to revive the discontinued appeal relating to the s 58(3) application, as well as the third application to appeal from the 1991 AAT decision out of time.

Mr Weston told me in submissions that Proceeding [28] was prompted by his discovery during the course of the trial before Judge Dove of what he claims were concealed photographs that the Shire held of the relevant properties, taken in 1974. He produced some of the photos in question as Exhibit MW 34. The Attorney-General's material did not indicate what was the fate of Proceeding [28], but Mr Weston told me that the application was dismissed on 28 September 2001, which was the return date of the summons.[157]

Proceeding [28] was utterly hopeless. It was a vexatious proceeding instituted by Mr Weston.

The position at the end of 2001 was as follows:

(1) Mr Weston was awaiting the judgment of Judge Dove in Proceedings [7] and [27].

(2) All of Mr Weston's claims in his writ against the Shire of Rutherglen and others issued in May 2000 (Proceeding [14]) had been struck out or dismissed, his appeal had been dismissed by Balmford J, and an appeal from Balmford J's decision was pending (Proceeding [15]).

(3) Mr Weston had foreshadowed further allegations against the Shire and others before Balmford J.

(4) There had been yet another unsuccessful attempt to "revive" Proceedings [4] and [5] in Proceeding [28].

2002

On 30 January 2002, Judge Dove delivered judgment in Proceedings [7] and [27]. The judgment constitutes a very detailed review of Mr Weston's complaints, dealing directly or indirectly with his complaints concerning the AAT decision in 1991 and the Shire's conduct in that proceeding, his complaints concerning the events of 6 and 7 February 1992 and the charges that arose as a result, his complaints concerning the firearms matters, his complaints concerning the Shire's recovery proceedings, and his complaints concerning the various actions involving his solicitors and financiers. The judgment also referred to other matters not revealed by the proceedings to which I have had regard, including a shooting incident in 1987 as to which Mr Weston had complaints concerning the conduct of the police, a physical confrontation with a neighbour named Jackson in 1989, and Family Court proceedings. The bulk of the judgment concerns Mr Weston's claims arising out of the conduct of the police in February 1992. Mr Weston succeeded in certain of these claims (Proceeding [27]). All of Mr Weston's claims against the Shire (Proceeding [7]) failed.

The damages that Mr Weston recovered against certain of the police defendants totalled $65,400. Mr Weston told me in submissions that all of this money was taken either to meet his maintenance obligations to his wife and family or to meet costs obligations to the Shire.[158] In relation to costs, Judge Dove gave a ruling on 21 February 2002. The material exhibited to the affidavits before me does not include a complete copy of Judge Dove's ruling. However, the costs order in the proceeding against the Shire does appear on the Court file, produced to the Court pursuant to a Notice to Produce filed by the Attorney-General on 4 June 2004. It is apparent that Judge Dove rejected an application that Mr Weston should be ordered to pay the Shire's costs on a solicitor/client basis. Mr Weston was ordered to pay the Shire's costs on a party/party basis. In the course of his ruling on costs, Judge Dove made adverse comments on some of the Shire's witnesses (including the engineer, Mr Gallagher), who he considered to be "partial and unsatisfactory witnesses".[159]

In relation to the counterclaim against the Shire (Proceeding [7]), the Attorney-General submitted that it was "probably vexatious". The Attorney-General referred to the fact that every cause of action in the counterclaim failed. The wide ranging allegations against the Shire which were not established concerned a very great variety of matters. They constituted, so Mr Weston told me in submissions, all of his complaints against the Shire of which he was aware up until May 2000.[160] Judge Dove was critical of a number of aspects of the Shire's conduct and of their attitude to Mr Weston, notwithstanding that he found against Mr Weston in all of his claims against the Shire.

In my view, it is not apparent that the counterclaim against the Shire (Proceeding [7]) was utterly hopeless. I do not find that it was a vexatious proceeding.

The Attorney-General did not suggest that the claim against the police in Proceeding [27] was vexatious. The Attorney-General did refer to the fact that Mr Weston succeeded against only 4 of the 12 named police defendants.

In his submissions on this application, Mr Weston told me that Judge Dove was wrong not to find that there had been a conspiracy against him involving the Shire, and that in his view Judge Dove's decision should be set aside.[161]

The trial before Judge Dove was heard in Wangaratta. In the course of the trial, Judge Dove was approached by a chef at a restaurant who indicated to him that he was a friend or acquaintance of the solicitor for the Shire. Judge Dove considered that the approach was such that he ought to bring it to the parties' attention in open court and he did so.[162] He did so in terms that suggest to me that he considered the approach to have been inappropriate. Mr Weston did not apply for Judge Dove to disqualify himself. Whilst the trial proceeded in Wangaratta, according to Mr Weston, Judge Dove stayed in accommodation within the Shire of Rutherglen which was, according to Mr Weston, approximately 25 to 30 miles away.[163] I relate these matters because Mr Weston now complains about Judge Dove's conduct and that is a matter to which I will return.

Mr Weston filed Notices of Appeal from both the decision of Judge Dove in relation to the police proceeding (Proceeding [27]) and in relation to the counterclaim against the Shire (Proceeding [7]).[164] On 16 August 2002 the Court of Appeal ordered that Mr Weston give security in the sum of $15,000 in respect of each appeal.[165] The affidavit material of the Attorney-General indicates that the security was not given; accordingly, each of those appeals stands dismissed.[166]

On 21 May 2003 Buchanan and Chernov JJA heard Mr Weston's appeal (Proceeding [15]) from the decision of Balmford J striking out all his remaining claims in Proceeding [14]. The appeal was dismissed,[167] although in relation to the claim against the first to fourth defendants it was dismissed for a different reason from that relied upon by Balmford J. Balmford J had held that there was no jurisdiction to deal with those claims; Buchanan and Chernov JJA held there was jurisdiction to deal with such claims but that the facts alleged could not support the cause of action.

The Attorney-General submitted that Proceeding [14] and the appeal from Balmford J in that proceeding (Proceeding [15]) were each vexatious proceedings. Every claim made in Proceeding [14] has been struck out. Whilst Balmford J might have erred on a matter of law in relation to one of the claims, that claim was still held to be untenable by the Court of Appeal because the facts alleged could not maintain the cause of action. Mr Weston submitted to me that Buchanan and Chernov JJA were wrong and he is presently applying for special leave to the High Court. In my view, Proceeding [14] was vexatious. However, the appeal (Proceeding [15]) does not, it seems to me, constitute the institution of a separate proceeding for the purposes of s 21 of the Supreme Court Act 1986. The appeal was from orders made in Proceeding [14] that were themselves interlocutory. In my view, this appeal does not fall within the third category to which I referred in paragraph 13 above.

As previously indicated, Mr Weston told me that Proceeding [14] included all of his complaints against the Shire up to May 2000. He had wished to introduce further complaints, which he says he has discovered since May 2000, and they were the subject of the foreshadowed amendment which he raised before Balmford J. Balmford J, he says, suggested a separate proceeding in the passage quoted earlier and Mr Weston's desire to issue that separate proceeding is the reason why he has issued the summons in this application to which I have referred earlier.[168]

Mr Weston's materials in support of his application for special leave to appeal to the High Court in relation to Proceeding [14] have been produced[169] and, whilst that application itself cannot relevantly constitute the institution of a proceeding, the material Mr Weston has filed is indicative of his present state of mind, and in my view is relevant to the question of whether an order ought to be made if the requirements of s 21 are met. Mr Weston's Summary of Argument in his special leave application commences with the following:

"Part 1 Concise statement of special leave questions said to arise. 1.1 The criminal and malicious deception of their Honours, to cover up and condone the respondents criminal activities offends against the standards of community decency."

The reference to 'their Honours' is to Buchanan and Chernov JJA.

Mr Weston's Reply submission dated 21 January 2004 concludes as follows:

"18. I have sued Melvile in these proceedings issued and served well before his letter of 16 March 2000. Having had allegations of acting fraudulently and dishonestly against him, he still persists with making further statements which he knows to be false. Melvile is like a sheepdog that has turned killer he needs to be taken out and shot.' In view of the Macarb, macevelian conspiracy by which melvile and the adjoining agreed to deprive the applicant the supreme court of victoria who are melvile's master must take him and his evil children and kill them. If these proceedings move to a tragic conclusion which can only be decided by a jury panel of one's peers, that panel of ordinary people may well decide that justices buchanan and chernov were not human life but some species of vermin that has taken over the justice system for their own benefit, so be it!"

In submissions I asked Mr Weston to deal with the question of the kinds of allegations that he is now making. In response, he said I should take into account the nature of the allegations made by Mr Melville. He expressed particular upset at what he says is an allegation made by Mr Melville that he had tried to kill his own son. On exploring that issue, it emerged that what Mr Weston was referring to was the fact that he had been originally charged out of the incidents on 6 February 1992 with driving in a manner dangerous, the danger being to his young son.[170]

The vexatious nature of the relevant proceedings

In my view, the proceedings taken by Mr Weston prior to 1993 were, with one exception, not vexatious. In this respect I am referring to the first water damage claim (Proceeding [1]), the application under s 58(3) (Proceeding [2]), the first application to appeal out of time (Proceeding [4]), the counterclaim against Dawes & Vary (Proceeding [16]) up to the point where the claim and counterclaim were dismissed by Judge McNab, the first appeal in relation to the application under s 58(3) which was discontinued (Proceeding [5]), the second drainage claim in the AAT (Proceeding [6]), the counterclaim against the Shire in the cost recovery proceeding (Proceeding [7]), and the first attempt to revive the discontinued appeal in Proceeding [5] (Proceeding [8]). The exception during this period is the application under s 49A (Proceeding [3]). That application was entirely misconceived, and was vexatious.

The attempted review of Judge Curtain's decision (Proceeding [9]) in 1994 has not been established to be vexatious.

From 1995 onwards there have been a number of utterly hopeless, vexatious proceedings instituted by Mr Weston. These vexatious proceedings were the counterclaim against Mr Connor (Proceeding [17]), the counterclaim against Bannister and Hartnett (Proceeding [20]), the appeal in relation to the Connor proceeding (Proceeding [18]), the two applications to vacate orders of the Trial Division dealt with by Kellam J (Proceedings [22] and [19]), the second attempt to revive the s 58(3) appeal (Proceeding [10]), the attempt to revive the earlier discontinued or dismissed appeals and to appeal out of time from Judge Lewis' orders (Proceedings [11], [12] and [13]), the writ issued in May 2000 (Proceeding [14]), the yet further attempt to revive the discontinued and dismissed applications (Proceeding [28]), and the application in Proceeding [16] to set aside the order of Judge McNab.

During the period since 1995 there were some proceedings issued by Mr Weston that have not been shown to be vexatious, and some that indeed succeeded, at least in part. In this respect I refer to the writ against the various police officers (Proceeding [27]), the appeal in relation to the Bannister and Hartnett matter (Proceeding [21]), and the firearms proceedings (Proceedings [23], [24], [25] and [26]).

It seems to me that it must also be observed that Mr Weston's proceedings have become increasingly untenable, and in some respects have become bizarre, over time. The early vexatious proceedings, such as Proceeding [3], might be described as merely misconceived. The nature of Mr Weston's untenable allegations are more serious in Proceedings [17] (Connor) and [20] (Bannister and Hartnett). Aspects of his applications and allegations, it seems to me, move into the bizarre in the Connor appeal (Proceeding [18]), in his applications to vacate the Trial Division orders (Proceedings [19] and [22]), in his most recent "revival" application (Proceeding [28]), and in his May 2000 Writ (Proceeding [14]).

It is necessary to record the submissions that Mr Weston made to me in relation to the various judges and tribunals who have decided against him over the years.

In relation to the AAT decision in 1991 Mr Weston said:

"I'm sorry to say this, but I had it on good authority that the Deputy President was - and I think the thing - the thing was being heard in Rutherglen and I think he was drunk every day, the Deputy President, the guy who was hearing the thing."[171]

"I'm sorry to say this but I believe that the Tribunal in their determination have made a finding that they know to not be true."[172]

In relation to the Tribunal's determination of his application under s 58(3), Mr Weston said:

"I think they were bribed, no doubt about it."[173]

In the course of his submission concerning the s 49A hearing, Mr Weston said:

"Mr Ball has perverted the course of justice by going up to Rutherglen and getting drunk."[174]

It seems that on 18 May 1994 Justice Beach allowed Mr Weston to video-tape the hearing of his application for an interlocutory injunction against the Shire. In the course of his submissions before me, Mr Weston said:

"The matter came before his Honour Justice Beach. Again the habitual habit of Mr Melville, the answering affidavit was served on the bar table at the commencement of the hearing. I never got to read it, the barrister never had time to read it. Judge Beach decided that it had to go on. I have a very good transcript of that because it was all videoed. Justice Beach probably rues the day that came into court."[175]

I gained the clear impression that Mr Weston believes Beach J "rues the day" because Mr Weston imagines Beach J is conscious of some wrongdoing on his part.

In relation to the decision of Ashley J, Mr Weston said:

"Without a doubt I believe Mr Justice Ashley acted maliciously towards me and I will leave it at that."[176]

In relation to the decision of Balmford J on the striking out of Proceeding [14], Mr Weston said:

"You know, I am still contemplating that Justice Balmford should go in it [a reference to Balmford J being joined as a defendant to Mr Weston's foreshadowed new proceeding] because she acted without - she has been found to have acted without jurisdiction."[177]

In relation to Judge Dove, Mr Weston made the following statements:

"I really regret now that I did not force Judge Dove to disqualify himself but anyway, that's water under the bridge.[178] ... What I said to you yesterday was that I really do now regret not forcing him to disqualify himself when he revealed that he was stopping in Rutherglen. I say this - just don't, please. . . . It matters because he has a preference to that town and their wines. . . . One of the things discussed was that the trial judge was up in Rutherglen enjoying himself when allegations had been made by that town that I had tried to kill my own son and everyone that I talked to said the thing stinks."[179]

I then had the following exchange with Mr Weston about Judge Dove:

"His Honour: . . . you were given a year, or the best part of a year, and the judge, on my reading of it, seems to have been very kindly disposed towards you. Mr Weston: That's probably the trap I fell for."[180]

In addition to the proceeding which Mr Weston has foreshadowed, in the course of his submissions he also referred to yet another proceeding that he had attempted to bring, apparently unsuccessfully. He said:

"I haven't produced it but there has been an attempt to prepare a statement of claim against a large number of most of the judges of the Court of Appeal. It was taken to the Prothonotary once and he said: `You are leaving out one key element.' There is nothing - no precedent in Australia but there is - I think a litigant in person in a similar situation to me in New Zealand succeeded in getting his home back or something."[181]

Have the requirements of section 21 been met?

Mr Weston is a person who has instituted vexatious legal proceedings. The proceedings to which I refer are Proceeding [3], [10], [11], [12], [13], [14], [17], [18], [19], [20], [22], [28] and the application in Proceeding [16] to set aside Judge McNab's order. These proceedings were vexatious because they were utterly hopeless.

His hopeless allegations are often of a most serious character. In this respect I particularly refer to his counterclaims against Connor (Proceeding [17]) and Bannister and Hartnett (Proceeding [20]), and to the Connor appeal (Proceeding [18]).

Mr Weston is a person who habitually and persistently institutes vexatious legal proceedings. He brings unmeritorious counterclaims and appeals as a matter of course. He prosecutes his vexatious proceedings with determination in the face of strike-outs and judgments against him. He repeatedly attempts to "revive" applications already dismissed. The habitual and persistent character of his conduct is best revealed by Proceedings [19] and [22], by Proceeding [10], by Proceedings [11], [12] and [13], and by Proceeding [28].

The requirements of s 21 have been met. The orders sought by the Attorney-General should be made. This is because of the number of vexatious proceedings instituted and the nature of the allegations made in those proceedings. I observed earlier that his allegations had more recently moved into the realm of the bizarre. In the High Court his allegations have become both bizarre and threatening. It seems to me to be very likely that, unless restrained, Mr Weston will continue to institute vexatious legal proceedings and, indeed, the likelihood is that those proceedings will become increasingly vexatious in the future. Mr Weston has responded to the adverse decisions against him by escalating the seriousness of the allegations which he makes and by widening the circle of persons against whom he makes those allegations. The material before me leads me to conclude that it is very likely that, unless he is restrained, that process will continue.

As indicated earlier, Mr Weston has made submissions that I have treated as being either directed towards having his foreshadowed new proceeding excised from the order, or directed towards giving him leave now to bring that proceeding. The proposed new proceeding is closely related to Proceeding [14], which was the subject of the orders of Balmford J and subsequently the Court of Appeal constituted by Buchanan and Chernov JJA (Proceeding [15]), and which is the subject of the pending special leave application to the High Court. In view of this close association, it is necessary to say something more about the allegations that were made in Proceeding [14].

Proceeding [14] was issued by Mr Weston in January 2000 in this Court against the Shire; its solicitor, Mr Melville; and others. The last version of the statement of claim in that proceeding was dated 26 May 2000.[182] In that statement of claim, Mr Weston alleged that the judgment obtained in the County Court by the Shire for its costs had been obtained by fraud.

* that Mr Tilleard's evidence in the AAT in 1990 was the basis upon which the AAT had dismissed the claim and ordered the Westons to pay costs (paras 4-8);

* that the Shire and Mr Melville had irregularly entered judgment for the costs "wrongly" and "fraudulently" (para 9);

* that a writ had been issued, being MC930819, and summary judgment had been obtained which was executed (paras 10-11);

* that Mr Weston had since discovered that Mr Tilleard's evidence to the AAT had been untrue (Para 12);

* that the untrue evidence constitutes the making of fraudulent representations and is demonstrative of a failure to provide proper discovery (this is my construction of the allegations in para 13); and

* that, by reason of the aforesaid, the judgment obtained in the County Court in MC930819 "was obtained by fraud".

It was then alleged that Mr Weston had what is called "a right of action in solicitor fraud" against Mr Melville (paras 15-17). Wrongdoing was also alleged against Mr Melville relating to:

* the process of recovering on the judgment in MC930819;

* evidence given at the hearing at the Magistrates' Court in Wangaratta in August 1992; and

* a failure to disclose plans and documents so as to mislead the AAT and so as to result in a mistake being made by the County Court, whereby judgment had been entered against Mr Weston (paras 17-19B and particulars thereunder).

Damages were claimed for economic loss totalling, by Mr Weston's calculations, $68,398,938.00 (paras 19C-20 and particulars thereunder).

It was then alleged that the conduct complained of had caused deterioration in Mr Weston's mental health (para 20A). It was further alleged that false briefs to counsel had been prepared which caused loss to Mr Weston (paras 21A-26), and that there had been breaches of a duty of care by Mr Gallagher, the Shire engineer; by the Shire's expert witness, Mr Tilleard; and by the estate agent on the mortgagee sale, Mr Gillman.

By way of relief Mr Weston sought orders that the judgment in MC930819 be set aside and that all monies paid to the Shire and to Mr Melville be repaid, and also sought damages, interest and costs.

At a glance

Court

Decision date

Before

Source

Judgment (320 paragraphs)

Parties

Cases Cited (9)