Were these vexatious proceedings?
137 I have approached this matter with some care because there was no real contradictor to the Attorney's claims. Although, as I have said, Mr Wilson addressed me after the evidence had been led, he did not address the issue whether or not the proceedings he had brought, and the applications he had made, were vexatious proceedings.
138 He started his address by referring to Magna Carta and then addressed on the dispute he was having with St George Bank in 1996 about the words "variable" and "uncertain". I suggested to him it would help me if he could give me some reason why he should not be declared a vexatious litigant, but he said he did not have to justify anything to me. He said I had no authority, and that there was a conspiracy between the banks and the judges to enable banks to steal and obtain money by fraud.
139 In an endeavour to find anything that may be of assistance to Mr Wilson I had regard to a very helpful article in the Sydney Law Review entitled "When Rights Cause Injustice: A Critique of the Vexatious Proceedings Act 2008 (NSW)" by Nikolas Kirby (2009) 31 SLR 163. This article provides an informed and interesting critique of the present legislation and suggests some alternative approaches to the acknowledged problem of vexatious litigants.
140 In particular, the article suggests a more flexible and targeted remedy which might require a discontinuance and prevention of new proceedings against a specific party and perhaps other agents collaterally involved in those proceedings (see at 178). I have also had regard to the proposition that vexatious litigants are simply a part of the cost of democracy, and that the economic and social costs of attempting to exclude litigants from the system is very high with the prospects of the effectiveness of that exclusion being low (see at 174-175).
141 I have examined all of the court process filed by Mr Wilson in the proceedings that I have detailed above. Even if I had not had the benefit of the various judgments to which I have referred, I would have had no doubt that with the exception of one application for expedition by Mr Wilson in the High Court (which was not opposed), and his appeal against his sentence for contempt, the remainder of his claims and applications were either an abuse of the process of the Court, were frivolous and vexatious, or disclose no reasonable cause of action. I am fortified in this view by the judgments delivered and the outcomes of Mr Wilson's proceedings and applications.
142 Many of the proceedings he commenced, and most of the applications he made, were attempts to re-litigate matters which had already been determined against him, and sometimes on many occasions. In particular, his claim that he was entitled to trial by jury for the determination of motions filed was made time and again, sometimes even to the same judge, when the matter had been determined against him. The matter is particularly highlighted in the proceedings where the High Court granted an indemnity costs order because Mr Wilson was raising for the third time before the High Court matters which it had already determined against him.
143 All of the proceedings commenced by Mr Wilson constituted an abuse of the process of the Court concerned and were instituted and pursued without reasonable ground. Applications that he made both in his own proceedings and in proceedings commenced against him seeking trial by jury, particularly for the hearing of notices of motion, were an abuse of process of the Court and were pursued without reasonable ground.
144 Further, Mr Wilson's behaviour in Court before many of the Judges was behaviour that harassed, annoyed, caused delay and detriments both to the Judge concerned, counsel for the opposing party and for the administration of justice generally. The transcripts of hearings before the various individual judges in particular, but also in the Court of Appeal and in the High Court, demonstrate that Mr Wilson was often rude, overbearing and offensive in the way he conducted himself. On many occasions, he was removed from the courtrooms by the Judges concerned, as I was forced to do in the present proceedings. No other course was possible because Mr Wilson would not remain silent when other people were speaking and were entitled to speak.
145 The proceedings which Mr Wilson himself commenced were all vexatious proceedings within the meaning of paragraphs (a), (c) and (d) of the definition in s 6. Applications which Mr Wilson made in proceedings commenced against him were vexatious proceedings within the meaning of those paragraphs. The applications for leave to appeal to the Court of Appeal (except his appeal against his sentence for contempt) and the applications for special leave to appeal to the High Court were vexatious proceedings within the meaning of those paragraphs.
Were they instituted or conducted frequently?
146 Between 4 July 1996 and 17 October 2007 Mr Wilson commenced 14 sets of proceedings in the Court. When it is considered that the majority of individuals in our community would never institute legal proceedings, and those that do would ordinarily have a need to do so once or twice in their lives, commencing 14 separate Supreme Court actions in 11 years can be said to be the institution of proceedings "frequently". That conclusion receives some support from the decision of Toohey J in Jones v Cusack 66 ALJR 815 where he held that 2 summonses and 3 notices of motion in 6 years "readily answer that description" (at 816).
147 In the light of the fact that most of the proceedings instituted by Mr Wilson derived from his dissatisfaction with the result in his first claim against St George Bank, the approach in Brogden v Attorney-General (followed in Attorney-General for the State of Victoria v Weston) that the number of proceedings can be quite small if those proceedings attempt to re-litigate matters already determined against the claimant is applicable when determining whether proceedings have been instituted "frequently".
148 If all the notices of motion filed by Mr Wilson even in his own proceedings are added, let alone those which he filed in proceedings commenced against him, I have no doubt that the requirement for the frequent institution of proceedings is satisfied.