BETWEEN : ATTORNEY GENERAL FOR WESTERN AUSTRALIA

Vexatious litigant - Repeated appeals in hopeless cases - Turns on own facts

1 MASTER SANDERSON: By originating motion dated 4 October 2013 the plaintiff applied for orders under s 4 of Vexatious Proceedings Restriction Act 2002 (WA) (the Act). The motion came on in chambers before McKechnie J on 24 October 2013. His Honour made orders allowing the defendant to file any affidavits in opposition to the application within 21 days from the date of the order. His Honour made certain other programming orders and then referred the matter to me.

2 The motion first came on in master's chambers on 17 April 2014. The defendant was selfrepresented. I made certain programming orders, relevantly, an order requiring the defendant to file any answering affidavit by 20 June 2014. The matter was then listed for hearing on 7 August 2014.

3 On 6 August 2014 the defendant lodged an application which sought to have the motion dismissed 'as it is built on erroneous ground [sic]'. Further orders were sought to have the applicant and certain judicial officers stand trial perjury and/or corruption. The defendant also sought to have all matters heard by an interstate judicial officer. When the matter was called on for hearing, I dealt first with this application. It was supported by an affidavit of the defendant sworn 5 August 2014. It is unnecessary to detail the contents of that affidavit. Insofar as it is possible to comprehend the points being made by the defendant, they offer no support for the orders sought. I also provided the defendant with the opportunity to make oral submissions. He did make short, irrelevant oral submissions which, again, added nothing to the application. I then indicated I would dismiss the application. The defendant decided he would take no further part in the proceedings and he left the court.

4 Faced with a motion which was, in reality, undefended, counsel for the applicant indicated he was content to rely on the affidavit of Clare Alison Lakewood sworn 7 October 2013 in support of the application and on his written submissions. Having read both the affidavit and the written submissions I was satisfied there was no answer to the application. I therefore made the orders sought in the originating motion. I indicated I would publish reasons for my decision. These are those reasons. They are, in large measure, drawn from the very helpful submissions filed on behalf of the applicant.

5 Section 4 of the Act appears under the heading 'Restriction of vexatious proceedings'. It is in the following terms:

(a) a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or

(b) it is likely that the person will institute or conduct vexatious proceedings,

the Court may make either or both of the following orders -

(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;

(d) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).

(2) An order under subsection (1) may be made by the Court on its own motion or on the application of -

(b) the Principal Registrar of the Supreme Court or the Principal Registrar of the District Court; or

(i) a person against whom another person has instituted or conducted vexatious proceedings; or

(ii) a person who has a sufficient interest in the matter.

(3) The Court must not make an order under subsection (1) -

(a) staying any proceedings that have been instituted by a person, either as to the whole or part of the proceedings; or

(b) prohibiting a person from instituting proceedings, or proceedings of a particular class,

without hearing that person or giving that person an opportunity of being heard.

6 To make an order under the Act the court must decide:

(a) whether it is satisfied that the defendant has instituted or conducted vexatious proceedings or is likely to institute or conduct vexatious proceedings;

(b) if the court is satisfied of these matters, whether to exercise its discretion to make an order under the Act; and

(c) if the court is satisfied it is an appropriate case to exercise its discretion the appropriate terms of any order it makes under the Act.

7 Dealing with the first of these requirements, s 3 of the Act defines 'proceedings' to include:

(a) any cause, matter, action, suit, proceeding, trial or inquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal;

(b) any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and

(c) an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal.

8 Proceedings include all forms of originating proceedings, any interlocutory proceedings or step taken in the course of a proceeding before a court or tribunal, or any decision or determination whether final or interlocutory: see Attorney General v Michael [2005] WASC 203 [5].

9 Section 3 of the Act defines 'vexatious proceedings' to mean proceedings:

(a) which are an abuse of the process of a court or a tribunal;

(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

(c) instituted or pursued without reasonable ground; or

(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

10 There is no closed list of proceedings which will properly be held to be vexatious in character for the purposes of enlivening the jurisdiction conferred by s 4(1) of the Act: see Principal Registrar of the Supreme Court v Chin [2012] WASC 7 [138]. Proceedings may be an abuse of process of a court or tribunal, or instituted or pursued without reasonable ground, by an objective standard, regardless of any subjective intention, motive or state of mind of the litigant: see Attorney General v Michael (supra) [7]; Granich Partners v Yap [2003] WASC 206 [28]; Attorney General v Shaw [2004] WASC 280 [22].

11 Subjective intention is a material factor relevant to determining whether proceedings fall within par (b) of the definition of 'vexatious proceedings': see Attorney General v Michael (supra) [7]; Granich Partners v Yap (supra) [28]. While subjective intention may also be relevant to determining whether proceedings fall within par (d) of the definition of 'vexatious proceedings', proceedings may still be vexatious proceedings within the scope of par (d) irrespective of the motivation or intention of the party bringing the proceedings if they are conducted in a manner so as to harass or annoy, cause delay or detriment, or for another wrongful purpose: see Principal Registrar v Chin (supra) [135]; Granich Partners v Yap (supra) [46].

12 A clear case of an abuse of process and of vexatious proceedings is where there are further or collateral attempts to challenge a final decision of a court binding on the party on attempting the challenge: see Granich Partners v Yap (supra) [46].

13 To demonstrate an abuse of process it is not necessary to show that the defendant has any ulterior motive in bringing the proceedings. So long as it emerges that the effect of bringing further proceedings is to relitigate an issue which has previously been conclusively determined between the parties that is sufficient: see Commonwealth Bank of Australia v Bride [2004] WASC 177 [127].

14 Proceedings instituted or pursued without reasonable grounds may include claims with unintelligible pleadings, appeals from striking out pleadings, misconceived or hopeless appeals, appeals which lack any legal basis and the institution of applications or proceedings which have absolutely no prospect of success: see Commonwealth Bank v Bride (supra) [127].

15 A proceeding is not saved from being instituted without reasonable grounds merely because it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy. Such a claim 'taken as a whole' may be regarded as made without reasonable grounds and therefore a vexatious proceeding: see Attorney General v Michael [54].

16 Vexatious proceedings may include those instituted by a litigant who 'sees dark conspiracies and a threat of great harm to himself in real or imagined wrongs of another': see Attorney General v Shaw (supra) [53] applying Attorney General v Hunter [2002] WASC 189 [98]; Attorney General v Michael [1999] WASCA 181 [26].

17 The affidavit of Ms Lakewood filed in support of this application ran to 164 pars, and with annexures to over 730 pages. It makes for sorry and depressing reading. It is necessary for present purposes only to give a brief summary of all the actions taken by the defendant. To undertake a more detailed analysis would serve no purpose and is not required in the circumstances of this case.

18 It is convenient to begin with proceedings arising from a Family Court matter which was initiated in 2004. In CACV 143 of 2006 the defendant appealed to the Court of Appeal against an order that he pay the costs of the respondent in the Family Court proceedings fixed in the sum of $120. The defendant failed to progress the appeal in a timely manner and comply with relevant court order deadlines. As a result, a springing order was made on 23 February 2007. The appeal was subsequently dismissed for noncompliance with that order.

19 The defendant initiated a further appeal to the Court of Appeal from orders made by Martin J of the Family Court on 20 December 2006. This appeal was heard by Pullin JA who determined it lacked any reasonable grounds. Included in the defendant's grounds of appeal were allegations that Martin J had 'falsified the truth in her judgment statement' and was biased. These grounds were, as found by the court, scandalous, frivolous or vexatious. During this appeal the defendant filed an application in the appeal for leave to issue subpoenas for documents which were not relevant to the appeal. The defendant's application for review of Pullin JA's decision of 28 August 2007 was heard by three members of the Court of Appeal. The application lacked any reasonable grounds. What was alleged was that 'the judge ... twisted the evidence before him in order to dismiss the appeal'.

20 By CACV 133 of 2007 the defendant appealed to the Court of Appeal against an order that he pay costs of the respondent in the Family Court proceedings fixed at $350. This appeal had no prospects whatsoever of success. The defendant failed to file an appellant's case prior to the hearing of the appeal and when he did, it included scandalous, frivolous and vexatious allegations of bias and corruption. The appeal was dismissed.

21 The defendant filed a further appeal, CACV 164 of 2007. By this appeal the defendant challenged an interlocutory 'decision' of Penny J of the Family Court in relation to the listing of an application. The appeal lacked any reasonable ground. The defendant sought a range of relief which could not be granted on appeal. The defendant continued to pursue the appeal even after it could have no effect on the primary court's decision to hear the matter at the time it did.

22 In CACV 28 of 2008 the defendant appealed against a decision of Martin J in March of 2008 adjourning proceedings in the Family Court. This appeal had no reasonable prospects of success. It contained an entirely unsubstantiated allegation of corruption against her Honour. The defendant's case sought a range of relief which was not within the jurisdiction of the court.

23 In CACV 83 of 2008 the defendant appealed against orders of Martin J made in July 2008. All that was alleged was that Martin J was allegedly acting in a 'corrupt manner'. Some of the relief sought by the defendant was not within the jurisdiction of the Court of Appeal. Although the Court of Appeal upheld the appeal on the basis that the defendant was not provided with an adequate opportunity to be heard on whether the applications in the primary court should be dismissed, the court observed that the other grounds were not proper grounds of appeal and there was no foundation at all for those grounds on the material before the court. In this appeal the defendant's application that the case be dealt with by a panel of interstate judges and that Pullin JA disqualify himself from dealing with the matter was found to be without reasonable grounds.

24 In CACV 19 of 2009 the defendant appealed against a decision of Martin J made on 13 February 2009 to list the matter for hearing on 18 February 2009. The appeal had no prospects of success. The appeal contained scandalous allegations of corruption against a judicial officer. None of the relief sought could have been granted on appeal.

25 In CACV 36 of 2011 the defendant appealed against a decision of Moncrieff J to appoint a 'child expert' in the Family Court matter and to adjourn the case to the next callover date. The Court of Appeal found:

(a) the appellant's case failed to articulate grounds of appeal which complied with r 32(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA). They were not sufficiently directed to identifying the errors of the primary judge. Additionally, the court found several of the grounds were couched in terms which were 'intemperate and offensive';

(b) the filing of an amended appellant's case which included allegations of corruption against judicial officers did not disclose any reasonable grounds of appeal. Further, the defendant sought relief that could not be granted on appeal;

(c) the application that Newnes and Pullin JJA 'be disqualified from dealing with [the defendant's] appeals or cases and interstate judges be appointed' lacked any reasonable grounds; and

(d) there was no merit at all in an application that a named solicitor be charged 'by the court for perjury'.

26 All of the above matters were appeals from decisions made by various judges in the Family Court. But the defendant has not confined himself to just appeals against Family Court decisions. He has instituted and conducted proceedings against persons associated with the Family Court matters. Again, a summary of these various actions is sufficient.

27 In SJA 1011 of 2008 the defendant appealed against a decision of a magistrate to dismiss an application for a restraining order sought by the defendant on behalf of his daughter against his former partner (the child's mother) and her brother. The appeal was dismissed by McKechnie J as incompetent.

28 In CIV 2005 of 2009 the defendant instituted defamation proceedings against a solicitor acting for his former partner in the Family Court proceedings. The proceedings were commenced outside the limitation period without leave of the court. The defendant filed a chamber summons seeking an order that Le Miere J disqualify himself on the basis of a perception of bias. There was no reasonable basis for the making of this allegation. Further, the defendant failed to put before the court any evidence justifying an extension of time within which to commence proceedings - this despite being afforded the indulgence of adjournments to allow him to produce the evidence.

29 Consequent upon the dismissal of the defamation action the defendant appealed in CACV 159 of 2009. During the course of this appeal the defendant made application that his appeal be heard by three interstate judges. There was no reasonable basis for that application. The defendant failed to comply with the orders of the court in progressing his appeal. He also filed an affidavit containing scandalous and unsubstantiated allegations against one of the registrars of this court. The appeal was, of course, dismissed.

30 The defendant initiated proceedings CIV 3020 of 2010 seeking orders against Martin J of the Family Court. The orders sought were outside the jurisdictional competence of the Supreme Court and were not supported by any reasonable grounds. The defendant also sought an order adding the Attorney General as a second defendant to the proceedings. He then sought an order for the disqualification of Kenneth Martin J on the basis of perceived bias. There was no basis at all for such an application. The defendant then filed a chamber summons seeking orders to add other judicial officers as defendants. Once again, the orders sought were completely unsubstantiated by any relevant evidence and were outside the jurisdictional competence of the court.

31 There was a further appeal in CACV 48 of 2012. The defendant appealed against orders of Beech J refusing to appoint an interstate judge to manage the case and his Honour's decision to manage the case on the papers through submissions and to refuse to add other judicial officers as defendants. This appeal lacked any merit whatsoever and was dismissed.

32 The defendant has demonstrated his versatility by not confining himself to appeals from Family Court matters or to actions related to those Family Court matters. In SJA 1075 of 2009 the defendant appealed against a decision in the Magistrates Court. The appeal was dismissed after the defendant failed to take any steps in the appeal.

33 In SJA 1091 of 2012 the defendant's appeal against conviction in the Magistrates Court on 6 August 2009 lacked reasonable grounds. The application for leave to appeal was refused by Hall J. The defendant then made a misconceived application seeking a suspension of a costs order on the ground of hardship.

34 It must be acknowledged that the defendant was successful on appeal in SJA 1082 of 2007. In that appeal Simmonds J allowed the appeal and remitted the matter back to the Magistrates Court for retrial. But as Hall J found in SJA 1091 of 2012, the further decision in the Magistrates Court was not tainted by error and the defendant did not articulate any reasonable grounds for a challenge to that decision.

35 Inevitably, the defendant appealed against Hall J's decision in CACR 133 of 2010. The Court of Appeal found there were no reasonable prospects of success and the matter was dismissed.

36 There are two things that emerge from the reading of the papers in this matter. First, it is remarkable the almost endless indulgence the defendant has received from the Court of Appeal, together with the courtesy with which he has been treated. A reading of the transcripts and the decision of the court show a clear recognition of the limitations faced by a litigant in person and a willingness to allow the defendant every possible opportunity to articulate a case. In the brief time the defendant was in court in relation to this application, I pointed out to him that, as I read the papers, he had been treated at all times with the utmost courtesy. He agreed. But that apparently did not translate into the defendant understanding that, having been given the opportunity to articulate his case, there was no grounds for the repeated allegations of bias on the part of various judicial officers.

37 The extent to which the defendant has been accorded justice is apparent from the partial success his appeal in CACV 83 of 2008 and his success in SJA 1082 of 2007. In both instances the judges concerned were intent upon ensuring the defendant was justly treated. Yet even in the face of those decisions, the defendant continued to maintain judicial officers of the court were corrupt.

38 That feeds into the second point. The scandalous allegations of corruption and prejudice were made without any attempt to provide any evidential basis to support the claim. It is the right of any citizen to use the processes of the court to ensure the rule of law is upheld. But it is the duty of that same citizen to operate within the constraints of the law. That means allegations, particularly serious allegations such an allegation of corruption, should not be made unless they are based on a rock solid evidentiary foundation. A litigant such as the defendant who continually makes such allegations without a scintilla of evidence to support his position is abusing his rights - he is a vexatious litigant.

39 There is no doubt at all the defendant in this case falls squarely within the definition of a vexatious litigant. It is difficult to imagine a clearer case. Accordingly, I make the following orders:

1. [The defendant] is prohibited from instituting any proceedings, as defined in the Vexatious Proceedings Restriction Act 2002 (WA) (the Act) unless he first obtains the leave of a court or tribunal, as the case requires under s 6 of the Act.
2. The plaintiff's costs of the application be paid by the defendant.