Attorney-General (NSW) v Betts

Supreme Court of NSW|2004-09-30|Before: Hoeben J

CITATION : Attorney-General (NSW) v Betts [2004] NSWSC 901 HEARING DATE(S) : 13/09/04, 14/09/04, 15/09/04, 16/09/04 JUDGMENT DATE : 30 September 2004

JUDGMENT OF : Hoeben J at 1 DECISION : See para [76].

CATCHWORDS : Vexatious litigant - Local Court, District Court. Anti-Discrimination Act 1977 LEGISLATION CITED : Justices Act 1902 Mental Health (Criminal Procedure) Act 1990 Supreme Court Act 1970 - s84(1) Attorney General for NSW v Bhattacharya [2003] NSWSC 1150 Attorney General v Wentworth (1988) 14 NSWLR 481 CASES CITED : Bhanjee v David Fourstick & Ors (No 2) [2003] EWCA Civ 113 Hunters Hill Municipal Council v Pedler (1976) 1 NSWLR 478 Ramsey v Skyring (1999) 164 ALR 378 Re: Vernazza (1960) 1 QB 197 PARTIES : Attorney-General in and for the State of New South Wales - Plaintiff Craig Andrew Betts - Defendant FILE NUMBER(S) : SC 13264/03 COUNSEL : Mr RC Titterton - Plaintiff Defendant in Person SOLICITORS : IV Knight, Crown Solicitor - Plaintiff Defendant in Person

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13264/03 - The Attorney-General in and for the State of New South Wales v Craig Andrew BETTS

JUDGMENT 1 HIS HONOUR: This is an application brought on behalf of the Attorney General for New South Wales (the plaintiff) seeking an order against Craig Andrew Betts (the defendant) under s84(1) of the Supreme Court Act 1970 (the Act). This is a section dealing with vexatious litigants. It enables the court to order that the vexatious litigant shall not, without leave of the court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by him without the leave of the court.

Vexatious litigants - general principles 2 Section 84 of the Act provides:

"(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.

(2) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the person aggrieved), whether in the Court or in any inferior court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.

(3) The Court may from time to time rescind or vary any order made by it under subsection (1) or subsection (2).

(4) Where the Court has made an order under subsection (1) or subsection (2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings." 3 The terms of the section limit the consideration as to whether the vexatious litigant has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings to proceedings "whether in the Court or in any inferior court". I take the reference to "the Court" to mean the Supreme Court of New South Wales (s19(1) of the Act). I take the reference to "any inferior court" to mean any New South Wales inferior court. That of course excludes tribunals. 4 Provided the necessary conditions precedent to the exercise of the Court's jurisdiction are established to the satisfaction of the Court, s84(1) gives the Court power to make orders of two kinds. The first is the order that the vexatious litigant shall not, without leave of the Court, institute any proceedings "in any court". This limitation means that the prohibiting order is confined to the institution of proceedings in the Supreme Court of New South Wales or inferior state court. (Hunters Hill Municipal Council v Pedler (1976) 1 NSWLR 478 at 479.) The second is the order that any legal proceedings instituted by the vexatious litigant in the Supreme Court of New South Wales or any inferior state court, before the making of the order shall not be continued by the vexatious litigant without leave of the Court. 5 In determining whether the statutory preconditions have been satisfied, the Court is confined to an examination of litigation in the Supreme Court of New South Wales and in New South Wales inferior courts. That is of some relevance in this case in that some twenty seven complaints have been filed by the defendant with the Anti-Discrimination Board (ADB). Those proceedings before the ADB and other tribunals, even though they be manifestly hopeless and plainly vexatious, cannot be taken into account as litigation which itself satisfies the precondition. It is, in my opinion, nonetheless permissible to consider the nature and extent of that other litigation as relevant to the issue of discretion. 6 The section is concerned with an examination of activities which may appropriately be described as the institution of vexatious legal proceedings. It has been held that the expression "institutes vexatious legal proceedings" should be given a wide construction (Hunters Hill Municipal Council v Pedler at 488E-F, Re: Vernazza (1960) 1 QB 197 at 208-210, Ramsey v Skyring (1999) 164 ALR 378 at 391, Attorney General for NSW v Bhattacharya [2003] NSWSC 1150, Whealy J. "Section 84 of the Supreme Court Act 1970 is clearly directed to the removal of abuses of the processes of the Court and of hardship to persons against whom vexatious proceedings are taken. While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form." (Yeldham J Pedler p 488) 7 The relevant question for the court to consider is not whether the proceedings have been instituted vexatiously, but whether they are in fact vexatious. (Re: Vernazza at 208, Attorney General v Wentworth (1988) 14 NSWLR 481 at 492, Attorney General v Battacharya at [9]. The enquiry is directed to the subject matter of the proceedings, not to the manner in which the proceedings are conducted. (Hunters Hill Council v Pedler at 485). 8 The courts have generally accepted the definition by Roden J of the expression "habitually and persistently" in Attorney General v Wentworth at 492: "Habitually suggests that the institution of such proceedings occurs as a matter of course, or almost automatically when the appropriate conditions (whatever they may be) exist; Persistently suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness." 9 His Honour did not attempt to formulate a definition of absolute or universal application. The concepts of "habitually" and "persistently" are ordinary English expressions and do not require precise elaboration. Nevertheless the explanation by Roden J is helpful and would cover most situations. 10 In relation to the concept of "vexatious" Roden J in Attorney General v Wentworth at 491 said: "1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. 4. In order to fall within the terms of s84: (a) Proceedings in categories 1 and 2 must also be instituted without any reasonable ground (proceedings in category 3 necessarily satisfy that requirement); (b) The proceedings must have been "habitually and persistently" instituted by the litigant." 11 In Jones v Skyring (1992) 109 ALR 303 at 306, Toohey J, in considering the scope and interpretation of High Court Rules 0.63, r 6(1) observed that the question must be decided on the facts, not by reference to whether the person against whom the order is sought has acted in good faith. It is immaterial that the respondent may believe in the justice of his or her argument and may not understand that the argument has been authoritatively rejected. 12 It is clear that the court should approach the questions involved in s84(1) with care and caution. The making of an order under the section effects a significant curtailment of a citizen's rights. Once satisfied that the prerequisites have been met, however, a court should act firmly and authoritatively to restrain and control new and existing vexatious litigation, to the extent the statutory power enables it to do so. There is, of course, undoubtedly a discretion whether to act or not, even where the statutory preconditions have been established.

Defendant - background 13 The defendant was born on 31 December 1961. There is little information concerning his formative years or background. The only information available is that which can be obtained from the various transcripts of proceedings where the defendant gave evidence, or from statements made by the defendant in relation to incidents reported by him to the Police Service. Accordingly the defendant's life until approximately 1996 is largely unknown. On one occasion, in 2000-2001 the defendant did complain to police about a sexual assault which he believed took place in 1988-1989 but the information provided by him lacked precision and no action was taken. The only other source of pre-1996 information is the defendant's criminal history, which was tendered by him in the course of these proceedings. This refers to a mid-range PCA offence in May 1991. 14 The defendant in the transcripts has described himself on a number of occasions as a self-employed computer consultant. It seems clear, however, from other material that such employment, at least over recent years, has been intermittent. He has been described by others as on occasions being homeless. He currently lives with his parents and is a university student.

Early court proceedings 15 The defendant's first contact with the courts, which was initiated by him, occurred on 22 January 1996. The defendant sought an apprehended violence order (AVO) against a Stephen Crawford in relation to an incident which was alleged to have occurred on 21 January 1996. That application involved five appearances before the Local Court at Sutherland. On only one occasion did Mr Crawford appear (21 February 1996). On no occasion was either party represented. The order was made against Mr Crawford in his absence on 17 April 1996 operative for twelve months. 16 Whatever the merits of the claim (it was never tested in court), the result clearly justified the defendant in seeking the intervention of the court in that he was successful in obtaining the AVO sought by him. 17 On 31 December 1996 the defendant, whilst drinking in the North Cronulla Hotel, was asked to leave by the licensee, Mr Bryant. He refused and an altercation resulted in the course of which the defendant assaulted Mr Bryant. The police were called and the defendant was charged with assaulting Mr Bryant and refusing to leave licensed premises. The defendant on 9 January 1997 sought an AVO against Mr Bryant. That application also related to the incident on 31 December 1996. The application by the defendant for the AVO in the Local Court at Sutherland was clearly either a defensive or retaliatory tactic because of the charges brought against him by the police. There were three appearances in relation to that AVO and these took place on the same dates that the charge matters came before the Local Court at Sutherland. 18 The hearing of the two charge matters took place on 18 April 1997 before Mr Brydon LCM. The defendant was represented. The matter proceeded as a full contest with evidence being called on both sides. The magistrate found against the defendant and he was fined in relation to the assault matter and in relation to the refusal to leave licensed premises. On that same date, the defendant's application for an AVO was marked "withdrawn dismissed". In those circumstances it would seem that the defendant's application had little merit. 19 Although there was a pause in the defendant's application to the courts, it should be noted that this incident at the North Cronulla Hotel formed the basis of a number of applications to the Anti-Discrimination Board and the Administrative Decisions Tribunal (ADT). The first of these was dismissed by the ADT on 20 December 2000. 20 On 5 January 1999 the defendant was charged with common assault. The victim was his mother. The incident occurred on 4 January 1999 when the defendant punched his mother on the side of the face. The best description of what occurred on that occasion is set out in the judgment of Howie DCJ (as he then was) in exhibit A(1) p206-207. Three police officers observed the extensive swelling and bruising to the face of the defendant's mother. That matter proceeded to a contested hearing over a number of days. The defendant was convicted of common assault on 10 September 1999. That of itself is only relevant to these proceedings by way of background. 21 On 10 February 1999 the defendant sought AVOs against both his mother and his father. These applications appear to be directly related to the charges brought by the police arising from the incident of 4 January 1999, although the application against his mother referred to there being "a long history between the parties whereby the mother has been rude and aggressive to the PINOP. She defames and belittles the PINOP to friends and acquaintances, this PINOP insists on the issue of this process." 22 It is clear from the transcript of proceedings before Mr Pearce LCM on 24 May 1999 in which the defendant's mother and father gave evidence supporting the assault charge (exhibit A(1), p134-184) that the AVO applications were brought either as a defensive or retaliatory measure by the defendant against his parents. In each application, there were eight appearances before the Local Court culminating on 13 October 1999 in both applications being marked "withdrawn dismissed" (exhibit A(1) p196). It would seem that these applications had little merit. 23 The defendant appealed from this conviction for common assault to the District Court. In doing so he made an unsuccessful application to adduce new evidence to Williams DCJ. The appeal was heard by Howie DCJ (as he then was) on 21 January 2000 and was dismissed. As a matter of legal principle the appeal was hopeless in that what was being challenged was the magistrate's preference for the evidence of the police officers and the defendant's parents to that of the defendant. 24 On 29 December 2000 the defendant obtained an AVO against his brother, Mr Martyn Betts. The order sought was not opposed by the defendant's brother. Although the defendant's brother did not attend court, solicitors retained by him, Messrs Forshaws Neill, on 20 December 2000 sent the following letter to the court. The contents are revealing. "20 December 2000 The Presiding Magistrate, Local Court, 151 Bronte Road, WAVERLEY NSW 2024

Your Worship, RE: APPLICATION FOR APPREHENDED VIOLENCE ORDER BY CRAIG BETTS AGAINST MARTYN BETTS Martyn Betts is willing to consent to the Apprehended Violence Order to protect Craig Betts. However, he makes no admissions that there are grounds to justify the Order. The following facts should be brought to the attention of the Court making the Order:- 1. Craig is Martyn's younger brother. 2. Craig is usually homeless and at his request, Martyn provided accommodation to him at Martyn's residence at 1/169 Arden Street, Coogee in October 2000. 3. Craig has given 1/169 Arden Street, Coogee as his address for a bail application in respect of an Assault Police charge to be heard at Sutherland Court on 12 January 2001. 4. There is a high probability that Craig will return to 1/169 Arden Street, Coogee and request Martyn to provide him with accommodation. 5. Craig is usually withdrawn but from time to time has episodes in which he is likely to complain that those closest to him are harming him. 6. To date Martyn is the only member of his family who has offered Craig any support and assistance to work through a number of his personal problems. Craig has not to date received any support or assistance from his parents or his other brother, David. 7. Martyn is 41 years old and has never before faced any charge of violence. Yours faithfully, FORSHAWS NEILL Malcolm Carr" 25 On 21 August 2001 the defendant sought a variation of the AVO which he had obtained against his brother, Martyn. The variation was in somewhat unusual terms requiring that Martyn "Not condone any third person including Malcolm Carr, solicitor, to make allegations that I am suffering from a mental illness" because the defendant believed that Mr Carr "is discredit and endangering me in serious situations and allegations also in harassing my friends". Mr Carr was the solicitor who had acted for Martyn Betts when the AVO was originally obtained and was the author of the letter of 20 December 2000 set out above. 26 There were four appearances in the Local Court at Sutherland culminating in a contested hearing before Ms Lyon LCM on 18 December 2001. The defendant was not represented but his brother was. The motivation for the application to vary the AVO would seem to be the contents of the letter of 20 December 2000 (exhibit A(1) p253). The application to vary the AVO was dismissed. 27 From the nature of the orders sought and from the transcript of the proceedings before Ms Lyon LCM there was no reasonable basis, in law or otherwise, for the application to vary the AVO. For the purposes of the matter before me, I regard the application to vary the AVO as the "institution of legal proceedings" for the purposes of s84 of the Act. I also regard the application to be so obviously untenable as to be utterly hopeless. 28 By way of background, on 10 October 2000 the defendant had attended the Cronulla Police Station complaining that he had been banned from the Cronulla RSL and requesting that the police serve a document on the RSL. An altercation developed between the defendant and the officers behind the counter, which culminated in the defendant being charged with assault police officer in execution of duty, resist a police officer executing his duty, remaining on enclosed lands after being requested to leave and behaving in an offensive manner in a public place. For reasons not clear, the defendant did not defend those charges and convictions were recorded ex parte at the Sutherland Local Court on 12 January 2001. 29 The defendant appealed to the District Court. The matter proceeded as a full contest over six days before Keleman DCJ concluding on 30 August 2001. The defendant appeared for himself. In a somewhat surprising decision her Honour upheld the appeal on the basis that she was not satisfied with the police explanation as to the unavailability of the video which should have recorded the events in the police station. The outcome clearly justified the defendant's appeal.

Todd Blanch court proceedings 30 On 30 April 2001 Mr Todd Blanch sought an AVO against the defendant in relation to a series of incidents alleged to have occurred at Cronulla Plaza. An interim AVO was granted in favour of Mr Blanch on 7 May 2001 restraining the defendant from approaching within fifty metres of Mr Blanch. 31 It is necessary to say something about the dispute between the defendant and Mr Todd Blanch since it seems to be the genesis of a significant number of subsequent applications to the Sutherland Local Court. The defendant asserts that he was assaulted, probably sexually, on 7 November 2000. He believed that Todd Blanch was one of his assailants. He made a number of complaints to the Miranda/Cronulla Police who took no action because of lack of evidence. The defendant was dissatisfied with this lack of action and took matters into his own hands. Mr Todd Blanch ran a business in the Cronulla Plaza and apparently the defendant would regularly attend at that business and verbally abuse Todd Blanch. 32 Following the interim AVO obtained by Todd Blanch, the defendant applied to the Local Court at Sutherland for an AVO against Todd Blanch on 11 May 2001. His application for an interim order against Mr Blanch was heard on 30 May 2001 ex parte by Mr Truscott LCM, who declined to make an interim order (exhibit A(2), p382). 33 The defendant also applied to have the interim AVO in favour of Todd Blanch varied to reduce the distance to less than fifty metres. That application was adjourned to 21 August 2001, but on that date there was no appearance by the defendant. Mr Walker LCM confirmed the previous interim order restricting the defendant from approaching Mr Todd Blanch within fifty metres. On 12 September 2001 the defendant attended the Sutherland Local Court and was successful in reducing the distance specified in the AVO to forty metres. On 17 October 2001 the defendant again approached the Local Court in Sutherland and had the distance in the interim AVO reduced to five metres. 34 On 5 July 2001 the defendant applied to the Local Court at Sutherland for AVOs against George Sheehan and Ben Krause. These persons were alleged to have joined with Todd Blanch in assaulting the defendant on 7 November 2000. No interim orders were made by the court. The matters were listed with the defendant's application for an AVO against Mr Blanch and for the final hearing of the application by Mr Blanch to confirm the interim AVO against the defendant. 35 A number of other AVOs were sought by the defendant from the Local Court at Sutherland. They were as follows:-

Against Ian Mathie - filed 7 September 2001 (Mr Mathie was apparently a friend of Mr Todd Blanch).

Against Brian Crowley Senior - filed 26 September 2001 (the Crowleys are related to the Blanchs.)

Against Brian Crowley Junior - filed 26 November 2001.

Against Andrew Bear - filed 3 October 2001. (Mr Bear operated a business located next to that of Todd Blanch).

Against John Blanch - filed 19 October 2001 (John Blanch is the father of Todd Blanch).

Against Reg Mahoney - filed 19 October 2001 (Commander Mahoney was the Local Area Commander for the Cronulla/Miranda Police)

Against Charmaine Bezzina - filed 29 October 2001 (Ms Bezzina was the office manager of Century 21 Beachside Realty at Cronulla). 36 Leaving aside the application brought against Commander Mahoney, these applications and their outcomes share a number of common features. 37 The defendant's applications against Todd Blanch, George Sheehan, Ben Krause, Brian Crowley Senior and Junior, Andrew Bear, John Blanch and Charmaine Bezzina were all fixed for hearing before Mr Maughan LCM on 3 December 2001. The substantive hearing of the application by Todd Blanch to confirm the interim AVO against the defendant was also fixed for that date. The application against Ian Mathie came before the court on three occasions and on the third occasion (10 October 2001), when there was no appearance for either party, was marked "dismissed". 38 The hearing on 3 December 2001 before Mr Maughan LCM proceeded as a full contest with Mr Todd Blanch being represented and the defendant appearing for himself. Mr Maughan refused the defendant's application that he disqualify himself and the matter then proceeded for the rest of the day. It was adjourned for further hearing to 13 February 2002. 39 The application for an AVO against George Sheehan was withdrawn by the defendant during the course of the proceedings on 3 December 2001 upon the defendant handing to the court a document signed by both he and Mr Sheehan (exhibit A(2), p597). The document, which was prepared by the defendant, is somewhat unusual and is set out below:

"Mr Craig Betts PO Box 175, Cronulla 2230 NSW www.geocities.com/craig_betts Nov 12, 2001 0415-127-004 Dear Sutherland Local Court Presiding Magistrate, Dear Mr Bramble, Private And Confidential, Re AVO Craig Andrew Betts Vs George Mathew Sheean 3rd Dec 2001 After speaking to George Sheean last week it is my wish and his that this AVO does not go to court. Both Signatures must appear on this document to make it valid and legal. 1/ George Sheean will not appear as a witness or provide evidence for Todd Blanch or Ben Klaus or anyone against me in these or other matters. 2/ No sexual preference allegations are to made against each other. 3/ We both except that each other are not crazy or are suffering from any mental illness. 4/ No Gossip about each other will be listened to or acted on and we will converse with each other in future and rectify this. 5/ Craig Betts will accept that George Sheean wants him to accept that he was not one of the people who assaulted him on 7/11/00. 6/ There will be no violence, harassment or abuse between us or directed to each other even by third party. George Mathew Sheean(Sgd) Craig Andrew Betts (Sgd)" 40 The defendant's application for an AVO against Ben Krause was also marked "withdrawn/dismissed" during the proceedings on 3 December 2001. The defendant's application for an AVO against Andrew Bear had not been served and it was dismissed on 3 December 2001. The defendant's application for an AVO against John Blanch was marked "withdrawn/dismissed" on 3 December 2001. The defendant's application for an AVO against Charmaine Bezzina was marked "withdrawn/dismissed" on 3 December 2001. Each of those applications for an AVO, which were withdrawn on 3 December 2001, had involved multiple appearances before the Local Court at Sutherland before they were withdrawn. 41 On 14 December 2001 the defendant's application for an AVO against Brian Crowley Junior was granted by the court in the absence of any appearance by Brian Crowley Junior. It should be noted that there was evidence that phone calls of the kind alleged by the defendant had been made by Brian Crowley Junior (exhibit 21). 42 The only proceedings remaining on 13 February 2002 were the applications by the defendant against Todd Blanch and Brian Crowley Senior and the application by Todd Blanch against the defendant to confirm the interim AVO. The matter proceeded throughout that day with the defendant calling his mother to give evidence in his case. Mr Maughan LCM found in favour of Mr Todd Blanch against the defendant and ordered that the AVO operate for two years and stipulated that the defendant was not to approach Mr Blanch within ten metres of the premises at which Mr Blanch worked. Mr Blanch was awarded costs of $2,000. The application for an AVO by the defendant against Mr Blanch was dismissed, as was the application by the defendant for an AVO against Mr Brian Crowley Senior. 43 The defendant's application for an AVO against Commander Mahoney came on for hearing before Mr Garbett LCM on 28 November 2001. The basis for that application was that the Cronulla/Miranda Police had ignored his complaints, had been perverting the course of justice, had been harassing and intimidating the defendant and had made false entries in his files. This was in the content of the defendant's complaints about Todd Blanch. The defendant's application was dismissed and he was ordered to pay costs. In the course of delivering the costs judgment, Mr Garbett LCM said: "The defendant is entitled to make the application. He is entitled to make the application in any event but he relies on vexatious frivolous application and it is quite clearly that it is such. It was described as utterly without foundation and it is utterly without foundation because in the whole of the evidence of three witnesses there was not one event or fact put forward to support this application in a proper manner." (exhibit A(3), p858) 44 The defendant appealed to the District Court from both the decision of Mr Garbett LCM of 28 November 2001 in the Commander Mahoney matter and from the decision of Mr Maughan LCM of 13 February 2002 in the Todd Blanch matter. In the Commander Mahoney matter, the appeal was dismissed by Shillington ADCJ, 1 August 2002, and an application to reinstate the appeal pursuant to s133B of the Justices Act 1902 was dismissed by Hosking DCJ on 26 September 2002. The appeal in the Todd Blanch matter was dismissed by Hock DCJ on 11 November 2002. 45 A perusal of the transcript in the three AVO matters contested by the defendant, ie his application to vary the AVO obtained against his brother, the AVO sought by Todd Blanch against him, and that sought against Todd Blanch by him and that sought against Commander Mahoney, shows that there was no evidence to establish the allegations. The defendant sought to establish by assertion, rather than by producing evidence which would enable a decision to be made in his favour. The process before Judges Shillington, Hosking and Hock was the same. On the basis of the material actually brought before the court in those matters, each application could not succeed and was doomed to failure in limine. 46 The defendant's applications for AVOs, which were subsequently withdrawn by him are in the same category. The fact that they were not proceeded with says much about the substance of the applications. The complaint made in the applications themselves confirms that the applications were most unlikely to succeed and were manifestly groundless. The only two applications for AVOs which did succeed were obtained by consent, ie the one against his brother and that against Brian Crowley Junior. Leaving aside the contested matters, even in the case of the applications which were withdrawn, there were numerous court appearances before a withdrawal of the application took place. 47 On 2 April 2002 the defendant again sought an AVO against Mr Todd Blanch. The grounds relied upon were essentially the same as those in the application which had been dismissed by Mr Garbett LCM on 13 February 2002. The matter came before the court on four occasions. Mr Todd Blanch was represented, but the defendant appeared for himself. The matter was listed for hearing on 16 August 2002. The defendant did not appear and the application was dismissed. This application was clearly without merit and utterly hopeless. 48 On 9 September 2002 the defendant instigated proceedings against Mr Todd Blanch alleging that on 18 April 2002 Mr Blanch had contravened an AVO obtained by the defendant against him. The matter was listed for hearing on 5 November 2002 but that hearing date was vacated on the application of the defendant. The matter came on for hearing before Mr Price LCM on 5 February 2003. As was made clear in those proceedings, the court was not able to find any copy of the AVO which Mr Todd Blanch had breached. This is not surprising since there was no such AVO. 49 Nevertheless, that matter and others proceeded on 5 February 2003 during the course of which the magistrate became concerned about the defendant's mental health. An application was made by the police that the defendant be dealt with under s33 of the Mental Health (Criminal Procedure) Act 1977, which application was granted. That brought an end to the proceedings on that day. 50 Subsequently, a forensic psychiatrist determined that the defendant was not currently suffering from "a mental illness" or was a "mentally ill person" as defined in that Act, and the proceedings continued with numerous mentions until after a further hearing on 8 March 2004, they were marked "withdrawn dismissed". Because there never was an AVO which Mr Todd Blanch had breached, these proceedings were quite without merit and utterly hopeless. 51 In the course of the hearing which took place on 5 February 2003 a letter from a psychiatrist, Dr Adrien Keller, dated 4 February 2003 was placed before the court. That letter appears to have been faxed to the court at the request of Mr Todd Blanch. Dr Keller was the director of the mental health team at the Cronulla/Sutherland Hospital. 52 On 16 September 2002 the defendant issued proceedings against Todd Blanch and George Sheehan for common assault. The assault relied upon was that which was alleged to have occurred on 7 November 2000. In relation to Mr Sheehan (see para [39] hereof) the matter came before the Local Court at Sutherland on eleven occasions until it was fixed for hearing on 21 August 2003. On that date the defendant did not appear and the matter was treated as having been withdrawn. 53 This outcome would indicate that the claim was without merit. 54 As to the assault claim against Mr Todd Blanch there were also numerous mentions before the court until the matter eventually came on for hearing on 8 March 2004. Both the defendant and Mr Blanch were unrepresented. In sixty five pages of transcript, no evidence was led by the defendant but the proceedings consisted of exchanges, essentially between the defendant and the presiding magistrate. The defendant withdrew the assault proceedings and the matter was marked "dismissed". As with the application for an AVO against Mr Todd Blanch, I am of the opinion that this application by the defendant was without merit and manifestly groundless. 55 The most recent proceeding brought in a court by the defendant was an application against Dr Keller for "intentionally using a carriage service to harass/menace the defendant". The application related to the letter which Dr Keller had faxed on 4 February 2003. The contents of the letter were as follows:- "Mr Betts is extremely well known to the Division of Mental Health at Sutherland Hospital. He has had one admission to our Inpatient Unit as well as sporadic contact with our Acute Care Treatment Team. He frequently corresponds with myself by fax and the content of this correspondence reflects psychotic thought processes and delusional beliefs. It is my professional opinion that Mr Betts is likely to be currently suffering from a mental illness and that he may well represent a risk to himself and others. I believe he would benefit from an urgent Mental Health Assessment to determine what treatment is required at this point in time." 56 After seven mentions before the court, the application was dismissed on 25 August 2003. The application was without merit and was utterly hopeless. 57 The fact of the various applications to the Sutherland Local Court and their outcome does not tell the whole story. Following the issue of the applications, correspondence was sent by the defendant to the Sutherland Local Court. This correspondence, when taken with the transcripts of those applications which actually went to a hearing, establishes a clear indication of the motivation behind the applications and the pattern which they followed. 58 The defendant's dealings with the Police Service have not been happy. This has led to consistent accusations being made in the applications against Todd Blanch and others of police corruption and a police conspiracy against him. This culminated in the misconceived application against Commander Mahoney. Similarly, persons who were perceived by the defendant to have intervened to support Todd Blanch (such as Andrew Bear, Charmaine Bezzina and Dr Keller), have had applications made against them. Despite unsuccessful proceedings against Todd Blanch in particular, the defendant has doggedly pursued his belief that Todd Blanch assaulted him and that there is a state-wide conspiracy involving the police and government ministers to protect Mr Blanch and harass the defendant. A perusal of the very substantial transcripts tendered by the plaintiff in support of this application, shows the defendant's "evidence" is no more than a collection of allegations which are unsupported by proof. His claims rest wholly upon an acceptance of his delusional beliefs which were being consistently rejected by magistrates and District Court judges alike. 59 The fact that the defendant was successful in obtaining two AVOs and in his appeal before Keleman DCJ does not alter my conclusion in that regard. As earlier indicated, the two AVOs in question were consented to and before Judge Keleman it was the unsatisfactory explanation of the police officers as to what had happened to the video tape which brought about the defendant's success in that appeal.

Jurisdiction 60 In my opinion, a case has been established that the defendant has, without reasonable excuse, habitually and persistently instituted vexatious proceedings in both the Local Court and District Court. I have summarised the nature and effect of the proceedings. The detailed references to plaint numbers is set out in exhibit G. 61 In almost all of the matters I have referred to, the defendant has lost or the proceedings have been dismissed. In each, the proceedings were so manifestly groundless as to be hopeless or untenable. This is clear in many cases from the nature of the proceedings themselves and in others from the material sought to be relied upon to establish them. In almost every case, despite a complete absence of merit, the proceedings have been pursued through a number of court appearances before either being withdrawn or coming to an adverse conclusion as a result of adjudication by either a magistrate or a judge. Except in the proceedings before Keleman DCJ, the defendant's appeals from decisions made adversely to him demonstrate an unwillingness to accept the adjudicator's decision despite the fact that defeat was in each case inevitable from the outset. 62 The basis upon which I have found against the defendant is that stated in the third limb of the matters mentioned by Roden J in Attorney-General v Wentworth. There is a strong suggestion that in some of the applications by the defendant, the first two limbs have been established. It is not necessary for me, however, to further analyse that issue in view of my finding in relation to the third limb. I am also satisfied that the defendant's course of conduct in instituting these applications, both in the Local Court and in the District Court, has been both habitual and persistent. The applications have plainly been without reasonable excuse. 63 There are three characteristics which demonstrate the defendant's approach to litigation. 64 The first is the defendant's inability to understand the difference between allegations and evidence. This was clear during the lengthy and unfortunately rambling submissions made by the defendant in these proceedings. He seems to believe that merely making allegations or claims, no matter how extreme or fanciful, in some way constitutes evidence of the matters alleged. 65 Secondly, the defendant habitually refuses to accept the adverse decisions of the Local Court where the matters have been contested. 66 Thirdly, the defendant has an inability or unwillingness to understand and comprehend the reasons which have led to the failure of his applications. This has led to him distorting on a regular basis the findings made against him and to seek to elevate, either in argument or in later proceedings, those adverse findings into findings in his favour. A passing remark or comment by a magistrate in the course of argument is relied upon as a finding in his favour. 67 Regrettably, there was nothing in the defendant's submissions which in any way assisted him given the nature of this application. The very nature of the submissions and the material tendered in support of them tended to support the application before me. I do not, however, propose to base my decision on that since much of this material was put by way of submission and it would not be fair to the defendant to treat it as evidence. 68 For the above reasons I find that the jurisdiction of the Court to make orders pursuant to s84 of the Act has been attracted.

Discretion 69 It is not enough that the jurisdiction of the Court is enlivened, it is also necessary that I be persuaded that I should exercise that jurisdiction. In doing so, I bear in mind that the making of the orders against the defendant will constitute a significant fetter upon his rights as a citizen to institute and continue legal proceedings. Orders of this kind of necessity impact on the ordinary rights of a citizen to approach a court for relief in respect of what he or she, rightly or wrongly, believes to be a grievance against another person or institution. For that reason, the powers conferred by the section must be exercised with caution and only in clear cases. On the other hand, in a proper case, the Court is empowered to make further orders giving leave to the vexatious litigant to proceed. 70 In deciding whether or not to exercise my discretion in this matter, I have had regard as I am entitled to do, to the applications made by the defendant to the ADB and ADT. In summary, the defendant has filed twenty seven complaints with the ADB. Of these, twenty matters were dismissed at vexatious, six matters were found not to be within the ADB's jurisdiction and one matter was withdrawn. Nine of those matters were referred at the defendant's request to the ADT. Of these, four matters were withdrawn by the defendant and the other five were dismissed. In addition, the defendant has filed two applications with the Residential Tenancy Tribunal (RTT), one of which was dismissed and in the other he failed to appear. The respondents nominated in these applications have been the Cronulla RSL Memorial Club Limited, NSW Police Service, NSW Ombudsman, Department of Gaming and Racing, the North Cronulla Hotel, the NSW Attorney General's Department representing the Sutherland Local Court, the Sutherland Shire Council and the Driftwood Café at Cronulla. 71 The most recent decision from the ADT (N Hennessy, O McDonald, L Mooney) was handed down on 24 August 2004. The respondent was the State of NSW. The opening two paragraphs of the judgment bear a certain similarity to the transcripts before the Local Court at Sutherland. "JA is dissatisfied with the services he has received from police officers especially those at Miranda Police Station. He has had prolific contact with police over several years regarding alleged assaults and harassment against him and threatening phone calls. He has also been charged by police over alleged assaults but as we understand it, never convicted. JA has made numerous complaints about police behaviour towards him. The core of his complaint to the tribunal is that the respondent has discriminated against him under the Anti-Discrimination Act , either by refusing to provide him with services or in the terms on which he has been provided with services. According to JA, the respondent has treated him unfavourably because they think he has a mental condition of some kind within the meaning of the term disability in the Anti-Discrimination Act . JA denies that he has any mental disability." 72 The rest of the judgment sympathetically and comprehensively analysed each of the defendant's claims and dismissed his complaint under s111 of the Anti-Discrimination Act, 1977 (exhibit E). That judgment is characteristic of and similar to other judgments delivered by the ADB and ADT in relation to complaints made by the defendant between 20 December 2000 and August 2004. Transcripts are contained in exhibits B(1), B(2), B(3) and E, the contents of which have been summarised in the plaintiff's submissions. 73 These unsuccessful and clearly vexatious applications to the ADB and ADT provide support for the exercise of the discretion provided by s84 of the Act. There is no countervailing consideration which has been put to me which would cause me to refrain from exercising the discretion given by s84. 74 In that regard, I endorse and fully support the comments of Whealy J in Battacharya (at [152]). "Additionally it needs to be borne in mind that in recent times the Supreme Court of New South Wales, both at first instance and on appeal, has had to face problems of no small moment because of the activities of self represented litigants. There is little doubt that the Court needs to be astute to recognise that self-represented litigants are often in a special position and require special treatment. There may often be a good cause of action lurking beneath a haphazard and formless surface. On the other hand, there are from time to time, perhaps not often, litigants in person who bring cases to the Court which are hopeless and have no merit at all. Vexatious litigation of this kind creates special problems for the Court. It means that the Court must often divert skilled attention, that ought to be paid to cases of real merit, to cases which have no merit at all. Moreover, the parties on the opposite side of the vexatious litigation are often subjected to considerable delay, worry and expense in circumstances where there is no justification for the proceedings at all. ( Bhanjee v David Fourstick & Ors (No 2) [2003] EWCA Civ 113 (25.7.03)). Considerations of this kind are by no means irrelevant to an appropriate discretionary response." 75 There is no reason why in the present matter that the orders sought on the plaintiff's behalf should not be made.

(a) An order pursuant to s84(1) of the Supreme Court Act 1970 that the defendant shall not without leave of the Court institute any legal proceedings whether civil or criminal in any court in this State.

(b) An order pursuant to s84(1) of the Supreme Court Act 1970 that any legal proceedings, whether civil or criminal instituted by the defendant in any court in this State before the making of this order shall not be continued by the defendant without the leave of the Court.

(c) Pursuant to s84(1) of the Supreme Court Act 1970 that the defendant be restrained by himself or by his servants or agents from instituting any application in any legal proceedings, whether civil or criminal, already instituted in any court in this State without the leave of this Court.

(d) An order pursuant to s84(1) of the Supreme Court Act 1970 that the defendant be restrained by himself or by his servants or agents from instituting any appeal in respect of any legal proceedings, whether civil or criminal, in any court in this State without the leave of this Court.

(3) The exhibits are to remain with the file.

Last Modified: 10/05/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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