Attorney General in and for the State of New South Wales v Peter Steven Viavattene - [2014] NSWSC 327 - NSWSC 2014 case summary — Zoe

NSWNSWSC

Attorney General in and for the State of New South Wales v Peter Steven Viavattene

[2014] NSWSC 327

Supreme Court of NSW|2014-03-20|Before: Bellew J, Mr J, Button J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2014-03-20

Before

Bellew J, Mr J, Button J

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

Judgment 1By summons filed on 18 October 2012 the Attorney General in and for the State of New South Wales seeks the following: (1)an order pursuant to s. 8(7)(b) of the Vexatious Proceedings Act 2008 ("the Act") prohibiting the defendant from instituting proceedings in New South Wales without the leave of the Court; (2)an order pursuant to s. 8(7)(a) of the Act staying all proceedings already instituted by the defendant in the State of New South Wales; (3)costs.

[2]

THE HEARING 2The matter was listed for hearing before me on 20 and 21 March 2014 when the defendant, having been called several times, did not appear. In seeking that the matter proceed in the defendant's absence counsel for the plaintiff relied upon an affidavit of David Galbraith, solicitor, of 19 March 2014. Annexure L to that affidavit was a file note prepared by Mr Galbraith in relation to the events of 26 September 2013 when the proceedings came before Button J for hearing. The defendant was in custody at that time but appeared before his Honour via audio visual link. Ultimately, his Honour vacated the hearing and listed the matter on 20 and 21 March 2014. He also listed the matter for directions before the Registrar on 24 October 2013. 3When the matter came before the Registrar on 24 October 2013 the defendant was still in custody but appeared on that occasion by telephone link. The Registrar made various orders on that day regarding the service of evidence, and confirmed the hearing date of 20 and 21 March 2014. 4On 31 October 2012, pursuant to one of the orders made by the Registrar, the Crown solicitor wrote to the Manager of the Grafton Correctional Centre, where the defendant had previously been held, enclosing copies of the evidence to be relied upon by the plaintiff at the hearing and asking that such material be provided to the defendant. That correspondence was returned and a copy which is annexed to Mr Galbraith's affidavit is endorsed with the words: "Received back at CSO 20/11/13. Box indicated: Return to sender. No longer in custody." 5Mr Galbraith then gave directions to a member of the staff in his office to arrange for the documents to be forwarded to the defendant at a post office box at Murwillumbah. The envelope enclosing that material was later returned to the Crown solicitor's office endorsed "unclaimed". 6I am left to infer that at some time following his appearance before the Registrar on 24 October 2013 the defendant was released from custody. I am satisfied that as a consequence of his appearances before Button J (when the present hearing date was set) and before the Registrar (when the date was confirmed) the defendant was clearly aware that the matter was listed for hearing on 20 and 21 March. There is no evidence which explains his absence. For these reasons, I concluded that it was appropriate to proceed with the hearing.

[4]

Proceedings brought by the defendant against Morton and Birch 10By summons dated 10 May 2011, the defendant brought proceedings in this court ("the summons proceedings") against Bruce Morton ("Morton") and Evelyn Birch ("Birch") seeking injunctive relief to restrain an alleged trespass over his property. In a separate set of proceedings commenced by statement of claim on 17 May 2011 ("the statement of claim proceedings") the defendant and his wife brought proceedings against Morton and Birch seeking (inter alia) injunctive relief and damages for trespass. The damages which were sought as a result of the alleged trespass totalled $130,690.00. In addition, the statement of claim sought what was described as "economic and non-economic compensation of $1,500,000.00". The pleadings in the statement of claim encompassed four paragraphs, the contents of which did not touch, in any way, upon the latter claim for damages. The statement of claim purported to be verified by an affidavit prepared in the names of, and signed by, both the defendant and his wife. 11On 10 June 2011 the defendant sent a lengthy email to the court registry which canvassed the nature of the evidence which he contended supported the proceedings that had been commenced, and which included a request for pro bono legal assistance. 12The summons proceedings came before Davies J on 19 July 2011. In a judgment delivered on that day, his Honour set out the nature of the dispute as follows: "The Plaintiffs' land adjoins the Defendants' land, with the Defendants' land being to the north of the Plaintiffs' land on Numinbah Road in Chillingham. A photograph showed that there is a tarred road with an embankment down on either side of that road which is covered largely in grass. On the eastern side of the tarred road and at the bottom of the embankment there is what appears to be an access track which runs along the front of the house that the Plaintiffs own. That access road leads to a gateway onto the Defendants' land. The Plaintiffs claim that that access roadway runs across their land and is not part of the road reserve of Numinbah Road. The Defendants' survey of October 2010 shows that at the northerly end of the access track just before the boundary of the Defendants' land, the access track at that time passed across the north western corner of the Plaintiffs' land. The evidence also discloses that the first Defendant made application to the Tweed Shire Council to build a driveway access to the Defendants' property which would not encroach on the Plaintiffs' land. The variation of the access is shown in a further survey of Landsurv Pty Limited of 30 June 2011. That survey was prepared by Mr Green who, as I have mentioned, has sworn an affidavit on behalf of the Defendants. The survey, on its face, shows that the gravel track or access way has been altered towards the west at the north-westerly end of the Plaintiffs' property, so that it passes through the gate onto the Defendants' property without encroaching on the Plaintiffs' land. It shows that no part of the access way (as altered) passes over or encroaches on the Plaintiffs' land. On 28 October 2010 the council approved the application for the access driveway so that it does not encroach upon the Plaintiffs' land in the manner that I have described." 13His Honour concluded: "On the evidence before me there is not a serious question to be tried because the evidence points only to the fact that the existing access roadway does not encroach on the Plaintiffs' land. That, of course, says nothing about whether in the past there has been a trespass for which the Plaintiffs may be entitled to be compensated if it is thought appropriate to do so." 14On 15 August 2011, following his Honour's decision, the plaintiffs filed (in both the summons proceedings and the statement of claim proceedings) a document described as "Affidavit of Peter and Beverly Viavattene". The document purported to be a joint affidavit which was in the same form as that which was relied upon to verify the statement of claim. 15On 16 August 2011 the defendants filed a notice of motion in both sets of proceedings seeking the joinder of eleven defendants, including Tweed Heads Shire Council and a number of members of the NSW Police Force. That notice of motion was supported by a further "joint affidavit" prepared in the same form to which I previously referred. It contained nothing which properly supported an order for joinder. 16Relevantly, on 15 September 2011, in the statement of claim proceedings, a notice of intention to file a notice of ceasing to act was filed by Suzanna Costello of Cronin Shearer Lawyers in Southport, Queensland. A notice of ceasing to act was subsequently filed by Ms Costello on 22 September 2011. I am satisfied in these circumstances that for at least some period between 17 May 2011 (when the statement of claim was filed) and 15 September 2011 (when the notice of intention to file a notice of ceasing to act was filed) the defendant and his wife had the benefit of some legal assistance. 17On 9 September 2011 Morton and Birch filed: (a)a notice of motion seeking that the summons proceedings be dismissed; and (b)a second notice of motion seeking that: (i)the statement of claim be struck out; (ii)summary judgment be entered; (iii)alternatively, the defendant and his wife provide security for costs. 18The two notices of motion came before Latham J on 19 September 2011, at which time the defendant's wife appeared but the defendant himself did not. On that occasion her Honour dismissed the summons proceedings. 19In a separate judgment delivered on 22 September 2011 her Honour made orders (inter alia) striking out the statement of claim and ordering the defendant and his wife (as plaintiffs in those proceedings) to provide security for costs. In the course of that judgment her Honour made reference to the "joint affidavit" purporting to verify the statement of claim, describing it (at [4]) as being "in the form of a collusive narrative". 20On 3 November 2011 a single notice of appeal, drafted in what could only be described as discursive terms, was filed in respect of the judgments of Davies J and Latham J. On 13 February 2012 the appeal proceedings were discontinued.

[7]

The third Local Court proceedings 29On 1 December 2010 the defendant was charged with an offence of contravening a prohibition or restriction in an AVO which had previously been made in favour of Morton. 30On 26 May 2011 the defendant wrote to the police prosecutor at Tweed Heads seeking an adjournment of (inter alia) these proceedings. The letter stated (inter alia): "We have also requested that Magistrate Dakin be removed from all matters involving Peter and Beverly Viavattene for the reasons that he stated he was in contempt of the Supreme Court...and because he placed illegal orders against Peter allowing access through our Torrens Title when there is no easement or right of carriageway through or over our property registered on our Torrens Title...Could you please advise us if you agree to vacate all matters listed for hearing or mention...until after Supreme Court hearing on 23 August 2011." 31There is no evidence before me as to whether or not a response was ever forwarded to the defendant. 32The matter came before the Murwillumbah Local Court on 6 June 2011 at which time the defendant did not appear. He was convicted in his absence. 33On 14 July 2011 the defendant made an application for annulment of the conviction recorded on 6 June 2011. That application was listed before the Murwillumbah Local Court on 3 August 2011. On that occasion the defendant did not appear and the application was refused. 34On 9 September 2011 the defendant lodged a notice of appeal to the District Court against the order dismissing the application for annulment. There is no evidence as to the outcome of that appeal. 35It is appropriate to note at this point that the failure of the defendant to attend Local Court hearings, the making of an application to annul the orders made at those hearings in his absence, and his subsequent failure to appear on the hearing of the annulment application are, as I have set out below, characteristic of his conduct of a number of proceedings in the Local Court. On the evidence which is before me, I am satisfied that in each of the instances on which the defendant failed to appear at a hearing, that failure occurred in circumstances where he was aware of the hearing date. I am also satisfied that in each of the instances on which the defendant failed to appear at the hearing of an application to annul orders which had been made against him in his absence, he was similarly aware of the hearing date.

[13]

The tenth Local Court proceedings 62On 25 February 2011, the defendant and his wife commenced proceedings seeking an AVO against Stuart Stone ("Stone") (who was incorrectly described in the application as "Stuart Tones"). The application came before Murwillumbah Local Court on 23 March 2011 at which time the defendant appeared in person and an interim order was made. The matter came before the court again on 20 April 2011, when the defendant again appeared and the interim order was varied. The matter was then adjourned for hearing on 10 June 2011. The defendant was warned about his exposure to a costs order. 63When the matter came before the court on 10 June 2011, the defendant failed to appear. The interim order was revoked and the application was dismissed. The defendant was ordered to pay Stone's costs in the sum of $1,870.00. 64On 30 June 2011 the defendant made an application to annul the orders made by the court on 10 June 2011. That application was listed for hearing on 3 August 2011, at which time the defendant failed to appear. His application was dismissed and he was ordered to pay further costs of $725.00. 65On 9 September 2011 the defendant lodged a notice of appeal to the District Court in respect of the orders made on 3 August 2011. 66There is no evidence as to the outcome of that appeal. The eleventh Local Court proceedings 67On 19 January 2011 the defendant was charged with contravening an AVO previously made in favour of Morton. The matter came before the Murwillumbah Local Court on 23 March 2011 at which time the defendant appeared in person. The proceedings were adjourned until 25 May 2011 for hearing. 68When the matter came before the court on 25 May 2011 the defendant was not in attendance but was represented by a Mr Boys, solicitor. Mr Boys made available a medical certificate and sought an adjournment of the proceedings until August 2011. Mr Boys also told the court that he had instructions to make application for the Magistrate to disqualify himself from hearing the proceedings. Having viewed the medical certificate, the Magistrate refused both applications and matter was stood in the list. 69When the matter was later called, Mr Boys indicated to the Magistrate that the defendant had contacted him and was in the process of forwarding a "revised medical certificate" to the court. Having read that document, the Magistrate confirmed the orders he had previously made. 70Mr Boys then sought, and was granted, leave to withdraw. The matter proceeded in the defendant's absence and he was convicted.

[14]

The twelfth Local Court proceedings 71On 20 April 2011 the defendant was charged with contravening a prohibition or restriction in an AVO previously made in favour of Morton and Birch. When the matter first came before the Murwillumbah Local Court on 20 April 2011 the defendant was in custody and was represented by a Mr Mulherin, solicitor. He was granted bail and the matter was adjourned until 8 June 2011 for hearing. 72On 7 June 2011 the defendant sent two emails addressed to "Court Services". The first, sent at 12.04 am on that day, stated (inter alia): "Legal aid has not approved a New Solicitor to Peter and Beverly Viavattene for matters for hearing in the Murwillumbah court his week. After another Solicitor Matt Maloy verbally agreed to represent Peter and Beverly Viavattene in all matters this week and then withdrew his legal services at the last minute this morning. I want to appeal matters heard today the 6th of June on all grounds. As I still don't have legal representation I propose that all Further Police Matters is (sic) adjourned until after the Supreme Court civil hearing and I received a legal aid solicitor for these bogus criminal charges. Could you please adjourn all Viavattene Police matters as we have no solicitor therefore I will be unrepresented and totally disadvantaged." 73In the second email, sent at 10.23 am on 7 June 2011, the defendant stated that he was unable to attend Murwillumbah Local Court due to his responsibilities as primary carer of his children. He then said: "Could you please inform the court to adjourn all matters until I am ensured legal assistance as I now have had another representative Matt Maloy withdrew (sic) his legal services yesterday morning as you would be aware from my previous emails. I expect the new solicitor will follow the others and I will be left UNrepresented (sic) once again. Could you please adjourn all police matters until I receive legal representation?" 74At 9.35 am on the morning of 8 June 2011 the defendant telephoned and spoke with a member of the registry staff at the Local Court at 9:35am. The file note of the conversation reads (inter alia) as follows: "Cannot attend as he is sole carer for the children and his wife is in hospital in Sydney. He has constantly told the court that they have no legal representation and has sent faxes to Court Services reporting the situation." 75When the matter came before the Magistrate on the same day the defendant did not appear and was not represented. The Magistrate noted the content of the telephone conversation which had taken place earlier that day, as well as the email correspondence sent by the defendant to the court. The Magistrate refused the application for an adjournment and the defendant was convicted in his absence. 76At 10.46 am on 8 June 2011 the defendant sent a further email to Court Services in which he stated: "I Peter Viavattene request an immediate appeal for matters heard yesterday the 7th of June 2011 in my absence at the Murwillumbah Court as my Legal Aid solicitor Matt Maloy withdrew earlier this week as previously emailed. I am the primary carer of my two young daughters and therefore was UNable (sic) to attend court yesterday and can't attend today as my wife is still away having medical treatment. I request an immediate adjournment for all matters until we receive legal representation (aid or pro bono). ... Could you please send this message to the Murwillumbah Court?" 77On 14 July 2011 the defendant made application for annulment of the orders made by the court on 7 June 2011. That application was listed for hearing before the Murwillumbah Local Court on 3 August 2011. There is no evidence of the outcome of that application although a number of other similar applications which were before the court on that day were dismissed. I infer that this application was also dismissed.

[24]

The twenty first Local Court proceedings 112On 17 May 2013 the defendant made application for an AVO against Morton. The application included the following statement: "Bruce Morton needs to provide evidence to the court that he can lawfully trespass through our Torrens Title that has no access registered on title and commit crimes against the Viavattene children." 113On 4 June 2013 the matter came before Magistrate O'Brien at the Downing Centre Local Court and the transcript of those proceedings is in evidence before me. Whilst I do not propose to set out the entirety of what was said on that occasion, the transcript records the defendant repeatedly seeking to raise matters which were irrelevant to the issue before the court. In particular, and in the course of various exchanges with the Magistrate, the defendant asserted that: (i)police in and around northern NSW were "paid off", necessitating the application being brought in Sydney; (ii)he had reported Magistrate Dakin to the Judicial Commission of NSW for misconduct; (iii)he had been forced to report police misconduct to "Professional Standards"; and (iv)police had refused to investigate his complaints. 114His Honour reached the following conclusion: "I could not say that this application were (sic) vexatious. However, I am satisfied that the matters relied upon are frivolous and that the application has no reasonable prospect of success. That being the case, and that being the conclusion that I have drawn from the material, the orders that I propose to make are that I decline to allow the filing of the application and confirm the decision of the Registrar." 115Following the Magistrate's determination, the transcript records the defendant stating: "Are you serious?" 116On 12 June 2013 the defendant filed a summons in this court commencing an appeal against the decision of Magistrate O'Brien. The defendant's affidavit in support of the summons enumerated no less than 26 orders which were sought, at least some of which had no relationship whatsoever to the determination which was the subject of the proposed appeal. 117The matter came before Rothman J on 25 June 2013 at which time his Honour made orders (inter alia) referring the matter to the Registrar. 118The defendant then filed a notice of motion seeking a total of 18 further orders along with an order for damages. The notice of motion asserted (inter alia) that Morton, Birch and Cheetham were in contempt of court. 119There is no evidence as to the outcome of these proceedings.

[26]

Tweed Shire Council Proceedings 121On 15 November 2010 the Tweed Shire Council ("the Council") served a penalty notice on the defendant alleging an infringement of clause 11(1)(b) of the Roads Regulation 2008. On 22 November 2010 the council served a further seven penalty notices alleging infringements of the same regulation. A ninth penalty notice alleging a similar infringement was served on the defendant on 3 December 2010. 122On 19 December 2010 the penalty notices came before the Murwillumbah Local Court. The defendant did not appear and was convicted and fined in his absence. 123On 10 May 2010, the defendant applied for an annulment of the orders made by the court on 19 December 2010. That application was granted and the matters were listed for hearing before the court on 9 November 2011. 124On 7 November 2011 the defendant applied for an adjournment of the hearing. That application was refused. However, when the matter came before the court on 9 November 2011 it was further adjourned until 19 December 2011. 125On 8 December 2011 the defendant made a further application for an adjournment. He was informed on 12 December 2011 that such application was refused. He then made yet a further adjournment application on the same day. On 18 December 2011 he forwarded written submissions to the court asserting that the access road was on his land and that his neighbours were trespassing. 126On 19 December 2011 the matters again came before the Murwillumbah Local Court at which time the defendant did not appear. He was convicted and fined in his absence. 127On 21 December 2011 the defendant made an application for an annulment of the orders made by the court on 19 December 2011. He was informed by letter of 9 January 2012 that such application was listed for hearing before the court on 8 February 2012. He failed to appear on that day and the application for annulment was dismissed. 128A further application for annulment was made on 7 March 2013. That application was dismissed on 3 April 2013. 129On 3 April 2013 the defendant attempted to file a notice of appeal to the District Court. That application was returned to the defendant on 5 April 2013 because it had not been accompanied by the prescribed fee nor any application to waive the fee. On 8 April 2013 the defendant sent an application for waiver of the fee to the District Court. The notice of appeal was returned to the defendant on that day on the basis that the statutory period for the bringing of an appeal had expired. 130On 26 April 2013 the defendant filed a summons in this court seeking leave to appeal against the convictions and penalties imposed by the Local Court. The matter was heard by Barr AJ on 12 June 2013 and in a judgment delivered on 28 June 2013 his Honour set aside the convictions entered by the Local Court in respect of the first, second, fourth and ninth infringement notices but dismissed the appeal against convictions in respect of the remaining notices (see Viavattene v Tweed Shire Council [2013] NSWSC 838).

[29]

The proceedings in Fair Work Australia 137The defendant brought proceedings for unfair dismissal against Healthcare Australia Pty Limited pursuant to the Fair Work Act 2009. The proceedings were brought in the Fair Work Commission. In the course of those proceedings the defendant indicated that he objected to the respondent being legally represented. He failed to provide written submissions in respect of that issue accordance with directions which had been made by the commission (see Viavattene v Health Care Australia Pty Limited [2012] FWA 7407 at [2]). 138The commission subsequently directed the defendant to attend the hearing in person, and further directed the respondent to the proceedings to pay an amount of $240.00 to the defendant in respect of travel expenses (see Viavattene v Health Care Australia Pty Limited [2013] FWC 628 at [14]-[16]). 139The defendant was required to appear before the commission on 30 January 2013 but failed to do so. When contacted, he advised that he had been adversely affected by flooding in the area in which he lived, an assertion which the presiding Commissioner appeared to accept (see Viavattene v Health Care Australia Pty Limited [2013] FWC 677 at [5]-[8]). 140The Commissioner then noted (at [9]) that when contacted, the defendant had: "... requested that the matter be heard on the papers without a hearing. He then hung up." 141In light of the defendant's difficulties, the Commissioner vacated the previous order requiring the defendant to attend the hearing personally, and granted him leave to attend by telephone. The proceedings were adjourned until 31 January 2013. 142When the hearing resumed on that day, the defendant failed to appear (see Viavattene v Health Care Australia Pty Limited [2013] FWC 756 at [20]-[21]). Attempts made to contact him by telephone were unsuccessful and he did not contact the Commission in response to messages which were left for him. The proceedings were then dismissed (at [37]). 143The defendant appealed against the dismissal of the proceedings. With the consent of both parties, that appeal was determined on the papers (see Viavattene v Health Care Australia Pty Limited [2013] FWC FB 2532 at [1].) The Full Bench of the Commission noted that in bringing the proceedings the defendant had alleged: (i)a denial of procedural fairness; (ii)bias; (iii)that statements of witnesses filed by the respondent were vexatious and malicious. 144The Commission refused permission to appeal (at [44]).

[30]

THE RELEVANT LEGISLATION 145Section 8 of the Act is in the following terms: 8 Making of vexatious proceedings order When orders may be made (1) An authorised court may make an order under this section (a "vexatious proceedings order") in relation to a person if the court is satisfied that: (a) the person has frequently instituted or conducted vexatious proceedings in Australia, or (b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia. (2) For the purposes of subsection (1), an authorised court may have regard to: (a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and (b) orders made by any Australian court or tribunal (including orders made before the commencement of this section). (3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard. (4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons: (a) the Attorney General, (b) the Solicitor General, (c) the appropriate registrar for the court, (d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings, (e) a person who, in the opinion of the court, has a sufficient interest in the matter. (5) An application for a vexatious proceedings order may be made by a person referred to in subsection (4) (e) only with the leave of the authorised court. (6) A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceedings order in relation to a specified person. Orders that may be made by Supreme Court (7) The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person. Orders that may be made by Land and Environment Court (8) The Land and Environment Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in the Court already instituted by the person, (b) an order prohibiting the person from instituting proceedings in the Court, (c) any other order that the Court considers appropriate in relation to proceedings by the person in the Court. Orders that may be made by Industrial Court (9) The Industrial Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in the Industrial Relations Commission (whether in Court Session or otherwise), (b) an order prohibiting the person from instituting proceedings in the Industrial Relations Commission (whether in Court Session or otherwise), (c) any other order that the Court considers appropriate in relation to proceedings by the person in the Industrial Relations Commission (whether in Court Session or otherwise). 146The term "vexatious proceedings" is defined in s. 6 of the Act as follows: 6 Meaning of "vexatious proceedings" In this Act, "vexatious proceedings" includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

[31]

SUBMISSIONS OF THE PLAINTFF 147Comprehensive written submissions were provided to the court by counsel for the plaintiff. 148In an overall sense, the plaintiff relied on what might be described as a pattern of behaviour on the part of the defendant arising out of the various proceedings which I have summarised above. Counsel submitted that taken together, the evidence established that the defendant had engaged in the frequent institution, or conduct, of vexatious proceedings. He submitted that once the court was satisfied that was the case, its discretionary power was enlivened and that in all of the circumstances I should exercise my discretion in favour of the making of the orders which were sought. 149In these respects counsel relied upon a number of matters. 150Firstly, counsel submitted that the evidence established that the defendant had brought or conducted a number of vexatious proceedings against individuals, upon whom such proceedings may be expected to weigh more heavily than would be the case if the proceedings were brought against a government or private entity. Counsel also pointed to the fact that in a number of instances, the defendant had brought or conducted proceedings jointly with his wife, who herself was made the subject of an order under the Act (see Attorney General (NSW) v Viavattene [2013] NSWSC 453). 151Secondly, counsel pointed to the fact that in some of the proceedings which had been instituted, the defendant had made unfounded allegations of bias and impropriety against judicial officers. 152Thirdly, counsel relied upon what he submitted was a demonstrated inability on the part of the defendant to accept finality in litigation. In this respect he relied, in particular, the defendant's repeated attempts, in the face of the determination made by Davies J, to put in issue matters relating to access over his property. 153Fourthly, counsel pointed to the applications which the defendant either brought or attempted to be brought, which were found to have no prospects of success. 154Finally, counsel pointed out that if an order were made, it would not have the effect of shutting out the defendant from bringing proceedings to enforce any legitimate claim that he might have at any time in the future. Counsel submitted that the effect of this was that in the event that he had such a legitimate claim or claims, the defendant would be able to obtain the leave of the court to commence the proceedings.

[32]

CONSIDERATION Applicable principles 155The provisions of the Act have been considered in a number of authorities, from which the following principles can be extracted: (i)the categories of vexatious proceedings which are contemplated by s. 6 are linked. Proceedings may constitute an abuse of process regardless of the personal intention, motive or state of mind of the litigant (see Attorney-General v Altaranesi [2013] NSWSC 63 at [17]; (ii)the question whether proceedings are "without reasonable grounds" is one gauged objectively, and not from the perspective of the litigant who is said to be vexatious. This approach protects the courts from litigants who genuinely, but misguidedly, are persuaded as to the correctness of their own conduct (see Altaranesi at [19]); (iii)sub paragraph (b) of s. 6 connotes a subjective intention on the part of the defendant. However sub paragraph (d) does not, and is concerned with effect and consequence, rather than motive or design. This relieves the court of the obligation of determining whether or not the defendant intends the consequences of his or her actions (see Altaranesi at [20]); see also Pascoe v Liprini [2011] NSWSC 1484 at [10]; Attorney-General v Chan [2011] NSWSC 1315 at [33]; (iv)to "institute" proceedings has a broad meaning under the Act, and is sufficiently wide to cover both civil and criminal proceedings, as well as proceedings before courts and tribunals (see Altaranesi at [8]); (v)the concept of "conducting" proceedings covers every step a party may take in order to further existing litigation (see Altaranesi at [9]); (vi)the definition of "proceedings" includes interlocutory proceedings as well as appeals, such that the court can have regard to baseless applications or appeals (see Altaranesi at [13]); see also Attorney-General v Wilson [2010] NSWSC 1008 at [15]; (vii)the term "frequently" is relative and must be looked at in the context of the litigation which is being considered (see Wilson (supra) at [12]); Attorney-General v Croker [2010] NSWSC 942 at [22]; Attorney-General in and for the State of New South Wales v Gargan [2010] NSWSC 1192 at [7]; Siteberg Pty Limited v Maples [2010] NSWSC 1344 at [31]-[32]; (viii)it is not necessary for a person to commence a large number of proceedings in order for it to be said that the person has done so frequently. The individual number of proceedings can be quite small if, for example, they are an attempt to re-litigate an issue already determined against the person (see Siteberg at [31]; Wilson at [14]; Gargan at [7]); (ix)the manner in which a person speaks or acts in the courtroom when conducting proceedings is a relevant consideration (see Wilson at 16]; Gargan at [7]; Altaranesi at [13]. 156The term "frequently" was considered by Blanchard J in Brogden v Attorney-General [2001] NZCA 208 where his Honour said (at [20]): "A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small, if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeals process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed. The fact that one or more proceedings have been struck out does not inevitably lead to the conclusion that the litigation has been vexatious. But this may be a strong indication." 157Further, in determining whether the orders sought should be made I am entitled to have regard not only to the result of proceedings but, where appropriate, the findings of, and views expressed by, the various judicial officers who dealt with them (see Wilson (supra) at [22], citing Attorney-General v Bar Mordecai [2005] NSWSC 142 at [5] and Croker (supra) at [125]). 158A finding that the defendant has frequently instituted or conducted vexatious proceedings in Australia enlivens the discretion to make the orders which are sought in the present case. In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Perram J, having cited a number of the principles to which I have already referred, made the following observations as to the nature of that discretion (at [12]): "Finally, once it is concluded that the court's power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings in likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise."

[33]

The circumstances of the present case 159The evidence tendered by the plaintiff establishes the institution, or conduct, of multiple proceedings by the defendant, sometimes jointly with his wife, in various courts and tribunals between 2011 and 2013. Given the number of them I am satisfied that such proceedings have been brought or conducted frequently within the meaning of s. 8(1)(a). 160Further, I am satisfied that the majority of those proceedings to which I have referred are properly described as vexatious on one or more of the bases contemplated by the definition of the term "vexatious proceedings" contained in s. 6 of the Act. In all of those circumstances, I am satisfied that my discretion should be exercised in favour of making the orders sought. 161I have reached these views for the following reasons. 162Firstly, the evidence establishes a clear unwillingness on the part of the defendant to accept the determination made by Davies J in the proceedings brought against Morton and Birch. As Perram J pointed out in Gargan (No2) (supra) a litigant's acceptance of his previous litigious history may be suggestive of a diminution in the risk posed to the public. In the present case, a number of the proceedings brought by the defendant have sought to re-agitate the issue which was determined by Davies J (see for example [55], [89], [92], [100], [104] and [112] above). The fact that the defendant has repeatedly attempted to re-agitate that issue is at odds with an acceptance of his previous litigious history. 163Secondly, bearing in mind the provisions of s. 6(d) of the Act, the defendant has displayed a particular pattern of behaviour in the conduct of various proceedings, aspects of which have consistently included: (i)repeatedly seeking adjournments (see for example [30], [68], [72], [73], [74] and [86] above; (ii)making allegations of bias and other impropriety (see for example [30], [68], [99] and [143] above); (iii)failing to appear at the hearing of the proceedings (see for example [28], [32], [36], [38], [41], [45], [51], [58], [63], [82], [106] and [108] above); (iv)making application for annulment of orders made in his absence and thereafter failing to appear on the hearing of that application [33], [39], [42], [46], [52], [59], [64], [77] and [83] above). 164Thirdly, bearing in mind the provisions of s. 6(a) of the Act, some of the proceedings to which I have referred constitute an abuse of process of the court, as evidenced by the defendant: (i)instituting, or seeking to institute, proceedings which had no reasonable prospects of success (see for example [90]-[93], [98], [101], [114] and [120] above; (ii)seeking damages in extravagant and exorbitant sums, unsupported by any evidence (see for example [10] and [133] above; (iii)the filing of "joint affidavits" containing largely irrelevant material (see for example [15] and [19] above); (iv)seeking to join other parties to proceedings in the absence of any reasonable grounds on which to do so (see [15] above; and (v)discontinuing proceedings once instituted (see [20] above). 165Fourthly, when challenging such determinations which were adverse to him, the defendant has made unfounded allegations of impropriety on the part of judicial officers, who have had no right of redress (see for example [30] and [99] above). 166Fifthly, one member of the Local Court Bench, namely Magistrate Dakin, has described the defendant as "vexatious" (see [93] and [101] above) whilst another, Magistrate O'Brien, described one of the applications brought by the defendant as "frivolous" (see [114] above). The defendant's conduct in the latter proceedings is best described as quarrelsome, and culminated in the Magistrate's decision being challenged in terms which were both offensive and unwarranted (see [115] above). 167In Attorney-General v Chan [2011] NSWSC 1315 Adamson J (at [177]) made the following observations: "The right to bring proceedings in a court or tribunal is a right that ought not be abused. The Defendant has repeatedly, as referred to above, used the processes of courts and tribunals to assert rights and grievances for which he has no reasonable ground. He has abused the processes of the Court by re-litigating issues which he has lost, and selected new defendants against whom to vent his complaints. He has also made several damaging allegations of reprehensible conduct against individuals, including judicial officers, who have no practical right of redress. He has taken up the time of judges, court staff, litigants and solicitors in a wholly unproductive way. He has sought adjournments on unsubstantiated grounds ...." 168Her Honour's observations, which I gratefully adopt, are apt to describe the conduct of the defendant in the present case.

[34]

ORDERS 169For the reasons set out above, I am satisfied that the defendant has frequently instituted or conducted vexatious proceedings and that an order pursuant to s. 8(7)(b) of the Act is warranted. 170In terms of the order sought pursuant to s. 8(7)(a), counsel for the plaintiff provided to the court a search indicating all pending proceedings to which the defendant is currently a party. That document forms part of Exhibit A. Counsel submitted that it had been open to the defendant to appear before the court at the hearing of these proceedings and identify any of those pending proceedings which were not vexatious. He submitted that in these circumstances I should consider the pending proceedings by reference to the evidence which had been tendered which, it was submitted, supported the making of the order under s. 8(7)(a). 171Counsel drew my attention to a decision of Le Miere J in the Supreme Court of Western Australia in Attorney-General v Michael [2005] WASC 203 where his Honour said (at [148]): "It is not appropriate for the court to make a blanket order staying any proceedings that have been instituted by a person. The court should consider each existing proceeding and whether or not that proceeding should be stayed". 172If his Honour was intending to convey the view that the making of a blanket order could never be appropriate regardless of the circumstances, then I would, with respect, tend to disagree. However, the correctness of his Honour's observations were not the subject of any argument before me and in any event, it is not necessary for me to determine that issue in order to reach a decision in the present case. In circumstances where the defendant could have appeared before the court and made submissions as to any of the pending proceedings but has not done so, I am satisfied that an order under s. 8(7)(a) should be made. In this regard the observations of Adamson J in Chan (supra at [179]), a case in which her Honour dealt with this same issue, are again instructive: "I consider that the plaintiff has been sufficiently rigorous in its examination of what proceedings are currently on foot. The defendant has not responded to the request that he identify such proceedings. Nor has the defendant made any submissions as to why particular proceedings which he has instituted ought not be stayed. He would, effectively, be profiting from his own breach, were this consideration to narrow the ambit of the order made against him to particular proceedings." 173For all of these reasons I make the following orders: (1)Pursuant to s. 8(7)(b) of the Vexatious Proceedings Act 2008 NSW the defendant is prohibited from instituting proceedings in New South Wales without the leave of the court. (2)Pursuant to s. 8(7)(a) of the Vexatious Proceedings Act 2008 NSW all proceedings in New South Wales which are already instituted by the defendant are stayed. (3)The defendant is to pay the plaintiff's costs.

Attorney General in and for the State of New South Wales v Peter Steven Viavattene

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