Supreme Court of WA|2002-08-02|Before: Ms J, Hasluck J

Attorney General v Hunter [2002] WASC 189 (2 August 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ATTORNEY GENERAL -v- HUNTER [2002] WASC 189

Vexatious Proceedings Act - Proceedings commenced by litigant over a period of ten years - Exaggerated and repetitious claims - Proceedings seldom pressed to a conclusion - Restrictive order granted - Turns on own facts

Criminal Code, s 85, s 124, s 143, s 336, s 473, s 409(1)(c), s 409(1)(d), s 444(1)

Criminal Law (Mentally Impaired Defendants) Act 1996, s 5

Rules of the Supreme Court, O 78 r 1, O 78 r 4, O 55

Attorney General v Wentworth (1988) 14 NSWLR 481

1 HASLUCK J: This is an application brought by the Attorney General of the State of Western Australia pursuant to provisions of the Vexatious Proceedings Restriction Act 1930. The applicant seeks an order that no legal proceedings shall be instituted by the respondent, Lindsay Hunter, in the Supreme Court, or in any inferior Court, unless the said Lindsay Hunter shall first obtain leave in accordance with the Act.

2 Section 3 of the Vexatious Proceedings Restriction Act 1930 ("the VPR Act") provides that if the Supreme Court is satisfied that any person has habitually and persistently and without any reasonable ground, instituted or commenced vexatious proceedings, and whether against the same person or against a different person, the Court may, after hearing that person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted without leave of the Supreme Court. Such leave shall not be given unless the Supreme Court is satisfied that the proceedings are not an abuse of the process of the Court, and that there is prima facie ground for the proceedings.

3 I will return to the legal principles applicable to issues arising under this provision later. However, as the respondent was not represented at the hearing before me, it is necessary to begin by turning to the procedural history of the present application.

4 Order 78 Rule 1 of the Rules of the Supreme Court provides that an application under the VPR Act 1930 shall be made by originating motion. Related rules provide for service of the relevant papers upon the respondent and establish that evidence on the hearing of any application may be given by affidavit. By O 78 r 4 if the party against whom an order is sought fails to attend at the hearing, the Court, after receiving proof of the due service of the notice of motion, may proceed to hear and determine the application in the absence of such party.

5 The originating motion in the present case was filed on behalf of the applicant on 17 May 2002 and provided for a hearing in respect of the application before a Judge in Chambers on 14 June 2002. I note that an affidavit of service sworn by Brett Colin Stevenson on 5 June 2002 deposes to service on 27 May 2002 at Hay Street in Perth of the originating motion and supporting affidavits. When the matter was brought before the Judge in Chambers on the prescribed date there was no appearance by or on behalf of the respondent. On that occasion an order was made for the matter to be dealt with at a special appointment.

6 The matter was listed for hearing at a special appointment on 26 June 2002. The affidavit of Colin Peter Wayte sworn 24 June 2002 refers to the service of documents pertaining to and giving notice of the hearing.

7 There was no appearance for the respondent on 26 June 2002. With a view to avoiding any possibility of an injustice to the respondent the matter was further adjourned so that orders could be obtained providing for substituted service upon the respondent of the notice fixing the hearing date.

8 Orders for substituted service of the relevant papers were made by a Judge in Chambers on 2 July 2002. The affidavit of Colin Peter Wayte sworn 12 July 2002 constitutes proof of service in accordance with those orders and establishes that the respondent was given notice of the hearing before a Judge in Chambers on 17 July 2002 for a restrictive order under the VPR Act 1930.

9 It was against this background that I proceeded to hear the application on 17 July 2002 in the manner allowed for by the Vexatious Proceedings Restriction Act 1930 and O 78 of the Supreme Court Rules, notwithstanding that there was no appearance for the respondent.

10 The evidentiary materials at the hearing (apart from affidavits of service) consisted of the affidavit of Colin Peter Wayte sworn 15 May 2002 ("the first Wayte affidavit"), his further affidavit sworn 7 June 2002 ("the second Wayte affidavit"), his further affidavit sworn 24 June 2002 ("the third Wayte affidavit") and his further affidavit sworn 12 July 2002 ("the fourth Wayte affidavit"). I had before me also the affidavit of Matthew Curwood sworn 11 June 2002 and the affidavit of Steven John Reuben Patchett sworn 14 May 2002.

11 I pause to say that Mr Wayte is a legal practitioner in the employ of the Crown Solicitor for the State of Western Australia and has the care and conduct of this matter on behalf of the applicant. Mr Curwood is a legal practitioner who acted on behalf of Lesley Leahy in relation to various proceedings commenced against her by the respondent. Dr Patchett is a medical practitioner and a registered psychiatrist employed by the Department of Health as the Director of Forensic In Patient Programme at the Frankland Centre at Graylands Hospital. He also holds the position of Acting Director of Statewide Forensic Mental Health Services.

12 It was apparent from these evidentiary materials that there were many transactions to be considered and a vast amount of details bearing upon legal proceedings commenced by the respondent. When the matter is looked at in overview, it is apparent from the Wayte affidavits that since 1991 the respondent has made 27 applications for violence restraining orders, brought 48 private prosecutions, commenced three civil actions and lodged 33 single judge appeals and one Full Court appeal. The great majority of these proceedings have been commenced since 1998. Save for one application for a violence restraining order in which the person against whom the order was sought consented to the application, and for a number of unresolved private prosecutions, every other matter instituted by the respondent has either been dismissed, struck out or not pursued by the respondent.

13 Counsel for the applicant submitted that the frequency and repetitive nature of the proceedings clearly demonstrated a habitual and persistent pattern of instituting proceedings by the respondent which justified the grant of relief. The most recent action of which the applicant was aware was instituted on 18 June 2002.

14 It will be convenient to deal with the application for relief by looking at the actions commenced against various persons or groups of persons rather than going to each of the actions in chronological order.

15 The first group of actions concern a settlement agent, Ms Lesley Leahy. The materials before me indicate that the respondent harboured a grievance against Ms Leahy as a result of a property transaction involving the respondent and in respect of which Ms Leahy acted as the settlement agent.

16 The property transaction in question concerned a property at 114 Empire Avenue, Wembley Downs and eventually became the subject of a ruling by the Full Court in Hunter v Webb, unreported; SCt of WA; Library No 940399; 5 August 1994 which was handed down on 5 August 1994. The respondent brought an appeal against an order for summary judgment made against him but the appeal was dismissed. I will draw upon the judgment of Nicholson J in seeking to understand the nature of the controversy between the parties to the relevant proceedings and the role of Ms Leahy.

17 It seems that the respondent and a certain Ms Webb entered into a written contract of sale dated 16 July 1992 providing that Ms Webb was to purchase from the respondent the rear portion of the subject land for $65,000. At the time the contract was executed the respondent was in the process of buying the land from a Mr and Mrs Gardiner and consequently was not then the registered proprietor and nor was there any approved subdivision of the land.

18 The contract contained special terms and conditions bearing upon these arrangements. The effect of these terms was that the title was to be issued to the parties (Hunter and Webb) as tenants in common in equal shares. By clause 5, the respondent was to do everything necessary to complete the subdivision of the land within four months. If the subdivision could not be completed within the prescribed time the respondent's share in the land was to be transferred to Ms Webb pursuant to a trust arrangement involving a Mr Frank Di Nardo.

19 The Court found that problems arose in the implementation of clause 5 of the agreement and the time limit was extended. Nonetheless, the outcome of the controversy between the parties was an order by the learned Master that the contract between the parties be specifically performed and be carried into effect by the respondent signing a transfer to Ms Webb of his registered one undivided half share in the subject land.

20 Various matters were raised on the hearing of the appeal against the Master's ruling including issues of waiver and estoppel and the question of whether the Master erred in not allowing the matter to go to trial when the action turned on the resolution of a conflict between the evidence of various witnesses. As I have already indicated, the Full Court dismissed an appeal against the Master's ruling and thus upheld the view that the entire beneficial ownership in the land was to pass to Ms Webb. This was the unanimous view of the Full Court.

21 It is apparent from the Curwood affidavit that the respondent made a complaint to the Settlement Agents Supervisory Board about the conduct of Ms Leahy with respect to the Empire Avenue transaction. That complaint was investigated but further investigation was not thought to be warranted.

22 An inspector's report dated 5 February 1999 refers to the respondent's claim that Floreat Settlements had acted improperly by failing to collect and pay to the respondent $1,860 owed by Ms Webb in respect of the Empire Avenue transaction and that Ms Leahy had forged and uttered a contract for the sale of land and related transfer. The report refers to various actions initiated by the respondent since 1993 concerning the matter in the Local Court, District Court, Supreme Court and Federal Court, without success. The author of the report referred also to the judgment of Sheppard J in the Federal Court in which a finding was made in respect of the transaction that an allegation of fraud had not been substantiated and that the allegations of fraud and forgery should be rejected.

23 More particularly, the second Wayte affidavit establishes that on 29 June 1993 the respondent commenced by originating summons Supreme Court proceedings CIV 1654 of 1993 against Frank Di Nardo and the Registrar of Titles. He sought to have a transfer of land document transferring ownership of the Empire Avenue property to Ms Webb set aside. On the same date he filed an ex parte motion seeking an injunction to restrain any dealings with the property. An interim injunction was granted by the Court on 30 June 1993 but was subsequently dissolved on 16 July 1993.

24 The first defendant, Mr Di Nardo, entered an appearance and on 21 July 1995 Ms Webb, an intervener in the proceedings, filed a notice of motion to dismiss the action or, alternatively, for security for costs.

25 The motion came before Anderson J on 8 May 1996. The respondent did not appear at the hearing, and an order was made dismissing the action as frivolous and vexatious, or alternatively, an abuse of process.

26 The respondent filed a notice of motion to have the decision of Anderson J set aside. That was dismissed by Scott J on 12 June 1996 on the grounds that the respondent had been declared bankrupt, and as such could not bring such an application without the approval of the Trustee in Bankruptcy.

27 The respondent then filed a further motion for committal for contempt of court against Ms Leahy, alleging that false and misleading statements had been made to the Court. This motion was dismissed by McKechnie J and a further costs order was made against the respondent.

28 In the course of these proceedings various allegations were made against Ms Leahy concerning her conduct and the papers created to give effect to the Empire Avenue property transaction. Reference was made to a written authority obtained by Ms Leahy. It was alleged that this enabled her to fraudulently act for both the vendor and purchaser pursuant to an abandoned and fraudulent offer and acceptance contract. The respondent claimed that he had suffered the serious loss of all his property as a direct result of fraud and various criminal offences committed against him by various persons including Ms Leahy. It is clear, however, from the judgment of the Full Court mentioned earlier that at the end of the day Ms Webb was held to be entitled to the property. The allegations of forgery and fraud concerning Ms Leahy formed part of the background to the action but were held to be without substance.

29 Nonetheless, as appears from the first Wayte affidavit, on 17 June 1998 the respondent brought a private prosecution under s 124 of the Criminal Code against Ms Leahy. The complaint alleged that Ms Leahy committed perjury by making a false statement in an affidavit sworn in the Supreme Court proceedings CIV 1654/93. The complaint was struck out when the respondent did not appear in Court on 26 August 1998. Having regard to the matters reflected in the reasoning of the Full Court and the report referred to earlier, it does not appear that there was any foundation for the allegations made against Ms Leahy, namely, that she made an affidavit for the purpose of being used in an action lawfully pending which was false in a material particular.

30 The second action commenced against Ms Leahy was a motion for contempt in the Supreme Court initiated by the respondent on 15 June 1999. It was alleged that false and misleading statements had been made to the Court. As I have already noted, this motion was dismissed by McKechnie J and a costs order was made against the respondent.

31 It is apparent from the Curwood affidavit that an order had been sought by the respondent that Ms Leahy be committed for contempt by reason of interfering with the proper administration of justice by knowingly, either deliberately or recklessly, misleading the Court by making a false or misleading statement or failing to disclose the true issues in regard to a signed blank Transfer in an affidavit sworn 15 July 1993. This affidavit, the respondent alleged, was used by Ms Webb as intervener in the proceedings to dismiss the injunction applied for by the respondent.

32 Justice McKechnie noted that the notice initiating the proceedings was very lengthy and sought various orders, none of which went to the committal of Ms Leahy as the proposed contemnor. Further, the use of the procedure under O 55 of the Rules of the Supreme Court was wholly misconceived. His Honour said further that the motion was not in a proper form and was incapable of amendment. Pursuant to the costs order made by his Honour costs were subsequently allowed in favour of Ms Leahy in the sum of $1,405 but these costs have not been recovered from the respondent.

33 The third action and the second complaint instituted by the respondent against Ms Leahy was a complaint instituted on 29 February 2000. The respondent brought a private prosecution under s 473 of the Criminal Code against Ms Leahy. The complaint (PE17471/00) alleged that Ms Leahy forged an offer and acceptance and uttered that record with intent to defraud the respondent.

34 More particularly, it appears from the Curwood affidavit that the respondent alleged that Ms Leahy, as licensee of Floreat Settlements and acting as settlement agent for the respondent, with intent to defraud on or about 21 July 1992, forged an offer and acceptance contract for the purchase of land being sold by Mr and Mrs Gardiner as vendors. The allegation was that she altered the contract to include the name of a second purchaser without the authority or signature of the respondent and uttered such forged record to the State Revenue Department for stamping on 27 July 1992 and/or uttered it at settlement on 27 July 1992 and/or caused the Registrar of Titles to issue a title contrary to provisions of the Transfer of Land Act 1893.

35 Mr Curwood says in his affidavit that the return date of the charge was 12 May 2000. He attended on the return date of the complaint which was heard by Mr Cicchini SM. After hearing submissions from both parties the learned Magistrate struck out the complaint. It emerges, then, that the allegation the subject of this complaint was essentially in respect of the matters the subject of the respondent's unsuccessful attempt to obtain relief in the civil claim CIV 1654 of 1993 which went to the Full Court.

36 The respondent's third complaint against Ms Leahy, being the fourth action in this group of actions, was instituted on 25 October 2001. It alleged a breach of s 124 of the Criminal Code. This matter is addressed in the Curwood affidavit. The nature of the offence was described as Ms Leahy knowingly giving false testimony that she prepared a transfer document in regard to the Empire Avenue property knowing such document was prepared by Reliable Settlements of Bicton, and knowing that such matter was material to the bankruptcy proceedings of Webb (petitioning creditor) and Hunter.

37 The Curwood affidavit establishes that the matter came on for hearing on 8 January 2002 before Mr Tarr SM. The learned Magistrate referred to the decision of the Honourable Justice Miller in Rodgers v Simpson [2001] WASCA 223 and declined to strike out the prosecution. His Worship ordered that the respondent prepare and serve a statement of material facts and the matter was adjourned to 30 January 2002. The matter was later adjourned to 27 March 2002. On that occasion Mr Curwood appeared in Court with Ms Leahy at which time, despite the previous orders, the respondent had not prepared a hand up brief. Accordingly the matter was again adjourned to 8 May 2002.

38 Ms Leahy attended the Court of Petty Sessions in the company of counsel on the further date. On that occasion she elected to dispense with a preliminary hearing and Chief Magistrate Heath committed her for trial and required her to appear in the Perth District Court on 19 July 2002. The outcome of that matter was therefore not known to me at the time of the hearing before me.

39 The Curwood affidavit provides evidence to the effect that these continued prosecutions, which Ms Leahy considers to have no merit, have caused her great anxiety and stress and have caused her to incur large legal expenses. Exhibited to the affidavit also is an extract of a decision handed down by the Honourable Justice Sheppard with respect to an application made by the respondent to review a sequestration order made against him on a bankruptcy petition issued by Ms Webb. At page 30 of the reasons for decision the learned Judge made some comments about the allegations of forged documents. Those observations are to the effect that the case which the respondent made of forged documents should be rejected. His Honour was by no means satisfied that there was any such fraudulent conduct as was alleged.

40 The fourth and fifth complaints brought against Ms Leahy by the respondent were both instituted on 18 June 2002, that is to say, one month prior to the hearing before me. It was alleged that on or about 27 July 1992, Ms Leahy forged an offer and acceptance contract for the sale of land between the parties Mr and Mrs Gardiner (vendors) and the respondent (purchaser) without the authority or knowledge of the respondent contrary to s 473(1)(a) of the Criminal Code.

41 It was alleged in the fifth complaint that from about 27 July 1992 to October 1995, Ms Leahy whilst acting as a licensed settlement agent and/or in trust for the respondent concealed from him and the Supreme Court of Western Australia and the Full Court of Western Australia and the High Court of Australia the contract for the sale of land between Mr and Mrs Gardiner and the respondent that she (Ms Leahy) had forged and uttered contrary to s 409(1)(d) of the Criminal Code.

42 It is apparent that in each case these complaints referred to the Empire Avenue transaction and were directed to matters which had previously been reviewed and dealt with by the Supreme Court, including the Full Court, as part of the earlier litigation between Ms Webb and the respondent. Counsel for the applicant confirmed to me at the hearing that although the outcome of these recent complaints is not yet known they will not be affected by a restrictive order of the kind sought under the VPR Act 1930 because the actions are already on foot. I pause to say that one can readily infer that the various actions have caused a considerable degree of anxiety and stress to Ms Leahy. The evidentiary materials before me show that the respondent's allegations of fraud and improper conduct were unwarranted.

43 The various affidavits provide evidentiary materials and particulars relating to an apparent grievance harboured by the respondent arising out of his ownership and/or possession of various dogs and the response of Local Government bodies and their employees to his ownership and/or possession of such dogs. It seems there were four complaints or private prosecutions commenced either against Local Government bodies or Local Government employees and five violence restraining orders within the last four years.

44 The first of these proceedings was initiated on 28 July 1999. The respondent made an application for a violence restraining order against John Whinney (a ranger for the Town of Kwinana). The application (PE1653/99) was based upon a contention that Mr Whinney had threatened to shoot the respondent's dogs and threatened him by pointing a loaded rifle at his head. The application was dismissed when the respondent did not appear in Court on 17 August 1999.

45 The second violence restraining order sought against Mr Whinney was commenced on 7 September 1999. The application (PE1966/99) repeated the contention made in PE1653/99. The application was dismissed on 7 September 1999.

46 The third violence restraining order against Mr Whinney was sought on 6 October 1999. The application (PE2161/99) further repeated the contention made in PE1653/99. The application was dismissed when the respondent did not appear at the hearing on 28 October 1999.

47 The fourth violence restraining order against Mr Whinney was sought by the respondent on 26 July 2000. It was alleged by the respondent that Mr Whinney had threatened to shoot him if he did not come out of his van to be served with papers. That application was dismissed on 17 August 2000 and again on that occasion it seems the respondent did not appear.

48 In summary, then, in relation to these four matters, four applications for violence restraining orders were dismissed and three of them had been in entirely the same terms. In three of the four cases it appears that the respondent did not appear when the matter was brought on for hearing.

49 The respondent initiated a complaint against Fiona May, an employee of the Town of Cambridge, on 11 November 1999. This complaint alleged the refusal or omission by the defendant named in the complaint to perform a public duty. It appears to have pertained to a failure to change registration details for a dog. The complaint was dismissed on 13 March 2000 and a note of the relevant papers indicates that the respondent did not appear on that occasion.

50 Two actions were commenced against Ms Claire Flynn, an employee of the Town of Kwinana. A violence restraining order was sought on 26 July 2000. This application by the respondent alleged that Ms Flynn had murdered all of the respondent's dogs and that therefore he was scared for his safety. The application was dismissed on 17 August 2000. A second action was instituted on 31 December 2001 and alleged a breach of s 85 of the Criminal Code by falsifying or altering a record of the registration of a dog. The return date of that complaint was 25 June 2002 and therefore the outcome is not yet known.

51 Applications were also made by the respondent against the Kwinana Town Council. The first of these was a complaint instituted on 17 May 2001 alleging a breach of s 444(1) of the Criminal Code in that the Town Council allegedly damaged the respondent's property by refusing to return his dog and killing his dog. The first return date for that complaint was on 25 June 2002 and thus the outcome was not known.

52 The second complaint instituted on 17 May 2002 alleged a breach of s 409(1)(c) and s 409(1)(d) of the Criminal Code that with intent to defraud the Council refused to return the respondent's dog, disposed of the respondent's dog and destroyed the remains. The return date was 25 June 2002 and the outcome is not yet known.

53 It therefore emerges in regard to this group of actions that with the exception of the matters that have not yet been resolved, none of the actions have been brought to a successful conclusion and most of the applications seem to relate to the performance by Local Government employees of duties referable to the positions they hold. There is no persuasive evidence before me that they exceeded their powers or acted improperly. I must infer that there was no substance in the respondent's complaints.

54 This group of actions concerns a grievance that the respondent apparently has or had in relation to treatment of his dogs by persons providing veterinary services. The evidentiary materials before me establish that there were three complaints brought against individual veterinary surgeons and two complaints against either a veterinary surgery or an employee of a veterinary surgery. All of these complaints appear to arise out of the cost of treating the respondent's dog.

55 A complaint was instituted by the respondent on 4 July 2001 against Bruce Moore. It was alleged that Mr Moore induced the respondent to enter into a contract with the intent to gain a benefit in excess of the agreed amount contrary to s 409(1)(c) of the Criminal Code. The relevant document indicates a return date of 2 October 2001. It is not entirely clear whether the complaint has yet been served.

56 A second complaint was instituted against Mr Moore on 25 October 2001 and reflects an allegation that he had fraudulently induced the respondent to enter into a contract in order to gain a benefit in excess of an agreed amount. The same details are relied upon as pertained to the first complaint against Mr Moore. The relevant document bears a notation that the complaint was dismissed.

57 On 21 March 2002 the respondent commenced proceedings against Mr Greg Wilkinson. This was a private prosecution under s 444(1) of the Criminal Code. It was alleged that the veterinary surgeon had wilfully and unlawfully damaged the respondent's property by sterilising his dog. The relevant document indicates that the complaint was adjourned to 12 June 2002.

58 The same allegation is reflected in a complaint instituted by the respondent on 17 January 2002 but this time as against the Subiaco Veterinary Hospital. That complaint bears a notation that it was dismissed on 21 March 2002 after no evidence was offered.

59 Finally, there was a complaint brought by the respondent against a person who appears to be an employee of a veterinary surgery, namely, Alana Gene Roberts. This complaint was instituted on 4 July 2001. The complaint alleges a breach of s 143 of the Criminal Code. It is alleged that Ms Roberts stated certain facts in relation to the payment of a vet bill which were false. It is not clear whether this complaint has been served.

60 When one looks at this group of actions in overview, and leaving to one side those actions that have not yet been resolved, the complaints brought by the respondent have been dismissed or doubled up in terms of two complaints being brought against the one person in respect apparently of the one incident or course of conduct. None of the complaints have been brought to a successful conclusion by the respondent. There is no persuasive evidence before me substantiating any of the allegations made by the respondent. The legal proceedings initiated by the respondent were patently disproportionate to the grievance he harboured.

61 The evidentiary materials contain details of various actions commenced by the respondent against members of his family or his family's solicitor which are apparently referable to a series of disputes that the respondent has had in relation to dogs.

62 The full details are reflected in the evidentiary materials. For present purposes, it is sufficient to note that there were eight complaints made against the respondent's sister Leonie Hunt. There were also six violence restraining orders sought against Ms Hunt.

63 The matters complained of by the respondent included an allegation that Ms Hunt had made false complaints to the police, stolen the respondent's dog, threatened to have the respondent smashed up and locked in gaol. There was an allegation that Ms Hunt had stolen the respondent's dog. In relation to an action instituted by the respondent on 29 March 2000 it appears that on 8 May 2002 Ms Hunt elected to proceed to the District Court without a preliminary hearing and that the matter was to be next before the District Court on 19 July 2002, that is to say, subsequent to the hearing before me.

64 This group of actions includes also an allegation that Ms Hunt had threatened to get her husband to assault the respondent. The action the subject of that allegation was dismissed on 15 August 2000 when the respondent did not appear. It was alleged in an application for a violence retraining order instituted on 10 August 2000 that Ms Hunt and her husband had tried to steal the respondent's dog. This application was dismissed on 10 August 2000 at which time it appears that the respondent was present.

65 This group of actions also included an allegation that Ms Hunt's stalked the respondent, was an accomplice to an assault on him, made false complaints to the police and gave false evidence in Court. Other actions included an allegation that Ms Hunt had stolen two of the respondent's dogs, and that she had unlawfully caused damage to one of the respondent's dogs by having that dog sterilised. This latter matter proceeded to the District Court by way of a formal election on 5 June 2002. The outcome is not yet known. The respondent also alleged that Ms Hunt had given false testimony in a matter to the effect that the respondent was a schizophrenic and had committed fraud and perjury.

66 In essence, in the period of time commencing from October 1999 until very recently there were 14 complaints or violence restraining orders made in relation to Ms Hunt. There appears to have been duplications in the substance of the various complaints made and a number of them do not appear to have been proceeded with to finalisation. There have not been any successful applications save for one matter in which a consent order was made although the circumstances in which the consent was provided are not entirely clear. I understand that the outstanding complaints against Ms Hunt were permanently stayed by Magistrate Woods on or about 24 June 2002.

67 In addition to these proceedings by the respondent against his sister, there were four complaints brought by the respondent against Mr Ian Hodges who is the husband of the respondent's sister, Ms Hunt. There were also seven violence restraining orders sought against Mr Hodges. The relief sought was either refused or the application dismissed, in some instances because the respondent did not appear and on other occasions because the case advanced was insufficient.

68 This group of complaints included also a complaint brought against the respondent's mother, Mrs Ethel Hunt and one violence restraining order directed to the mother. The respondent's father, Mr Ken Hunt, was the subject of an application for a violence restraining order and was joined as a defendant to a civil action commenced by the respondent in the Supreme Court, being CIV 1392 of 1999. This group of actions also includes two complaints brought against Mr Jonathon Eastoe who was the solicitor for Ms Leonie Hunt.

69 I note that the application for a violence restraining order against Mr Ken Hunt was dismissed on 10 August 2000 with the respondent being present on that occasion. As to the civil action Mr Ken Hunt applied successfully to the Master of the Supreme Court for a stay pending the respondent's payment of security for costs. The solicitor was alleged to have breached s 143 of the Criminal Code in placing false and misleading written submissions before the Supreme Court. The submissions were exhibited to the affidavits and there does not appear to be any basis for the complaint that was made in relation to them. I understand that the complaints against the solicitor, Mr Eastoe were permanently stayed by Magistrate Woods on or about 24 June 2002. There is no evidence before me substantiating the various allegations made by the respondent. I must infer that the legal proceedings initiated by the respondent lacked merit and represented a disproportionate response to whatever sense of grievance underlay his allegations.

70 This group of actions concerned a total of seven complaints made by the respondent against psychiatrists. It appears from the Patchett affidavit that on 11 September 2000 the respondent was referred to the Frankland Centre at Graylands Hospital on a hospital order made by the Perth Court of Petty Sessions pursuant to s 5 of the Criminal Law (Mentally Impaired Defendants) Act 1996. The respondent had been charged with assaulting a public officer, stealing, breach of violence restraining order, driving whilst legally disentitled, unlawfully obtaining goods and using an unlicenced vehicle whilst on the road.

71 Dr Patchett said in his affidavit that a hospital order made under the above Act allows for a seven day assessment period but in the respondent's case it was not possible to complete the assessment in that time. The respondent was not co-operative with interviews, refused to attend investigations such as a CT scan and placed conditions upon access to information such as requesting that interactions with him be videotaped. As a consequence, the respondent was returned to the Court on 18 September 2000 with a recommendation that a further hospital order be made to allow time for a completion of the assessment.

72 It seems that a second hospital order was duly made by the Court and the assessment was completed during the period of that second order. The respondent was returned to Court on 25 September 2000 and it is Dr Patchett's understanding that he was subsequently released on bail.

73 On 12 November 2001 Graylands Hospital was served with four witness subpoenas issued by the respondent in the District Court at Perth. The subpoenas were directed to Dr Rachel Allet, a senior psychiatric registrar at the Frankland Centre, who at that time was on extended leave, Dr Mircea Schineanu, a psychiatrist at the Frankland Centre, Dr Patchett and Dr Jayasri Nadarajah, another psychiatrist at Graylands Hospital, in relation to a separate period of detention under the Mental Health Act 1996. Dr Patchett was unaware of the matters before the Court but presumed they related to outstanding charges that were the subject of the hospital order to the Frankland Centre on 11 September 2000.

74 On 13 November 2001 Dr Patchett wrote to the Crown Solicitor's Office on behalf of the State Forensic Mental Health Services seeking the assistance of the Crown Solicitor with respect to the subpoenas. It seems that the subpoenas were eventually discharged. This was also the case in respect of some further witness summonses.

75 Dr Patchett said in his affidavit that on 30 January 2002 the respondent turned up unannounced at the Frankland Centre and demanded to see Professor David Greenberg who was then Director of Statewide Forensic Mental Health Services. A contemporary note reveals that the respondent explained that he was suing the hospital and all the doctors for wrongful detention and diagnosis.

76 The respondent subsequently sought copies of notes pertaining to his admission in September 2001 and when these were not provided he indicated that he would lay criminal charges. Various summonses reflecting the charges subsequently laid are exhibited to the affidavit. Dr Patchett said in his affidavit that he was due to appear in Court in relation to the charges on 7 June 2002.

77 Dr Patchett said further that he wished to make it clear that on both occasions when the respondent was referred to the Frankland Centre it was under a Court directive pursuant to s 5 of the Criminal Law (Mentally Impaired Defendants) Act 1996. He was detained in accordance with the requirements of that Act and not as a result of any discretion or function that Dr Patchett had as a registered psychiatrist under the Mental Health Act 1996.

78 The evidentiary materials bearing upon this aspect of the matter are sufficient to establish that there is a lack of substance in the complaints being advanced by the respondent. The evidence concerning this group of claims tends to corroborate the picture emerging from a consideration of the earlier groups of claims that the respondent is inclined to initiate legal proceedings against any person who incurs his displeasure or acts in a manner which is thought to be in opposition to the respondent's wishes.

79 The evidential materials advert to two complaints brought by the respondent against the Commonwealth Bank. These are disclosed at par 35 and par 36 of the first Wayte affidavit. Both actions were commenced on 6 June 2001 and reflect an alleged breach of s 409 of the Criminal Code and are referable to an allegation that the Bank had allegedly debited the respondent's account without authority.

80 Both of these complaints were dismissed on 9 August 2001 on which occasion the respondent did not appear before the Court. It is significant that both complaints appear to relate to the same incident and are alleged to have occurred on the same date.

81 There was also a complaint brought against Telstra. This is referred to at par 6 of the second Wayte affidavit. On 5 June 2002 a private prosecution brought by the respondent against Telstra on 14 June 2001 came back before the Court. The complaint alleges that Telstra attempted to pervert the course of justice by failing to attend the District Court pursuant to a subpoena to produce documents contrary to s 143 of the Criminal Code. The complaint was adjourned to 26 June 2002.

Justices Act Appeals

82 The second Wayte affidavit sets out the details of various proceedings instituted by the respondent in the Supreme Court of Western Australia. It would be prolix to review the details of all these matters. However, one notes that in SJA 1133/93 the respondent appealed a decision whereby he was convicted of hindering the police but did not press the appeal. In SJA 1102/94 the respondent appealed a conviction of possession of a dangerous weapon but the appeal was not pressed to a conclusion. In SJA 1128/95 the respondent appealed a conviction of stealing a motor vehicle but the appeal was not pressed to a conclusion. In SJA 1014/98 the respondent appealed a conviction of driving a motor vehicle without a licence but the matter was not pressed to a conclusion. In SJA 1023/98 the respondent alleged that the Magistrate was bias but the appeal was not pressed to a conclusion. In SJA 1024/98 the respondent appealed a conviction of failing to produce a valid driver's licence but the appeal was not pressed to a conclusion. In SJA 1046/98 the respondent raised an allegation of bias but the matter was not pressed to a conclusion.

83 In essence, 33 appeals were instituted in the period between 9 August 1993 and 26 October 2001. There were four matters in respect of which leave was granted but the appeal was not pursued. There was one matter in respect of which leave to appeal was granted but the appeal was dismissed. There were four single Judge appeals in which leave to appeal was refused. There was one appeal where the result was uncertain and there were 23 matters in regard to which the papers were filed but were not pursued to the grant of leave stage in the sense of having been adjourned sine die, and not pressed to a conclusion by the respondent.

84 In some of the single Judge appeals primary relief was sought in addition to the grant of leave to appeal itself. It does not appear in those cases that there was any reasonable basis for the application for the additional relief sought. In one matter the respondent brought the application on behalf of the people of Western Australia extensively in the public interest and for the administration of justice. In that case Owen J dismissed the application on the grounds that the respondent did not have standing to bring such an action.

85 A useful illustration of the respondent's apparent approach to such matters is to be found at pars 76 to 79 of the second Wayte affidavit concerning SJA 1200/99.

86 On 5 November 1999 the respondent commenced Supreme Court proceedings SJA 1200/99 against various public officers, the police and the Shire of Kwinana. The proceedings were commenced by way of an application for leave to appeal a decision made by Magistrate Heath in the Court of Petty Sessions on 29 June 1999 in matters PE 24275/99 and PE 24276/99. Reference was made to the corrupt and biased conduct of various individuals and officials and an order was sought for a joinder of the sixth member of the "terrorist group".

87 One finds at par 78 of the second Wayte affidavit reference to the respondent making numerous references to the allegedly illegal actions of a terrorist group who were involved in removing his dogs from his possession. That was an instance of a matter where the application was adjourned sine die and no further steps were taken to progress the proceedings. The additional relief sought in SJA 1191/99 was an order for prohibition against all Magistrates from hearing any matters in which the respondent was involved.

88 In par 104 and onwards Mr Wayte describes the course of events in relation to SJA 1110/00. The respondent in that matter sought additional primary relief in addition to the grant of leave to appeal including certain declarations. His basis for seeking relief was that the Fines, Penalties and Infringement Notices Enforcement Act 1994 was unconstitutional as it jeopardised the health and safety of the public at large, was oppressive and inflicted double jeopardy. These matters were said to be the basis for a claim to unconstitutionality.

89 In essence, insofar as certain single Judge appeals sought primary relief in addition to the grant of leave to appeal, the applications for primary relief appear to have no proper foundation and can be regarded as an abuse of process.

90 The evidentiary materials indicate also that there have been a number of threats made by the respondent to continue to commence legal proceedings.

91 The third Wayte affidavit includes reference to letters by the respondent to the Attorney General and to the Listings staff at the Court of Petty Sessions putting them on notice effectively of intended litigation that he proposed to commence against staff at the Court of Petty Sessions or security at the Court of Petty Sessions.

92 The nature of the actions threatened included actions for damages in the vicinity of hundreds of thousands of dollars as well as criminal prosecutions.

93 It appears from the fourth Wayte affidavit that on 25 June 2002 Mr Wilkinson had received a facsimile in which the respondent, amongst other things, threatened civil proceedings. Copies of correspondence recently copied by the respondent to the Manager of Registry Services at the Court of Petty Sessions at Perth reflects a threat of immediate legal action in the Supreme Court where a mandatory injunction will be obtained against Ken and Ethel Hunt and result in a substantial damages claim. A notice of demand sent to Ms Hunt, Mr Hodges and the solicitor Mr Eastoe, on 3 July 2002 threatens debt recovery procedures being initiated.

94 It is apparent from s 3 of the VPR Act 1930 that the Court must be satisfied that the respondent has habitually and persistently and without any reasonable ground, instituted or commenced vexatious proceedings in the Supreme Court or in any inferior Court.

95 In Attorney General v Keating [2000] WASC 93 Anderson J noted at par 2 that this legislative provision is directed to the removal of abuses of the processes of the Court and of hardship to persons against whom vexatious proceedings are taken: Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478.

96 Justice Anderson was satisfied that the case against the plaintiff had been made out. His Honour said that the conduct of the proceedings by the respondent in that case and the actions which he commenced in the Local Court and the Supreme Court met the test of habitual, persistent and groundless institution of vexatious proceedings. The many groundless interlocutory applications, persistently seeking to revisit issues decided against the respondent in the proceedings and the wholly unmeritorious appeals from decisions adverse to the respondent, which appeals were for the most part not pursued, satisfied the test posited in Hunters Hill Municipal Council v Pedler (supra).

97 Anderson J reviewed the relevant considerations in Attorney General v Michael [1999] WASCA 181. In that case, at first instance, Wheeler J had stated the test for determining whether proceedings are "vexatious" for the purpose of s 3 of the Act as being whether the proceedings had been (a) instituted with the intention of annoying or embarrassing the person against whom they are brought; (b) brought for collateral purposes, and not for the purpose of having the Court adjudicate on the issues to which they give rise or (c) if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

98 However, on appeal in that case, the Full Court held that sub-paragraph (c) was too narrowly stated. Anderson J, for the Court, said at par 126:

"I think proceedings may be vexatious for the purposes of the Western Australian statute without necessarily being 'utterly hopeless', which I take to mean plainly devoid of any merit whatever. The litigant who sees dark conspiracies and the threat of great harm to himself or herself in the trivial wrongs of another may provide an example. The commencement of an action by such a person, containing outlandish allegations and seeking forms of relief that the courts do not grant, may be vexatious, notwithstanding that it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy."

99 In Attorney General v Michael (supra) the applicant's application failed because, while the respondent in that case had "sailed extremely close to the wind", his conduct fell just short of being habitual and persistent.

100 Before leaving this review of the relevant legal principles I note that the institution of proceedings is not confined to the commencement of an action by writ. Attempts to appeal or set aside a final decision and the laying of criminal complaints are likewise to be regarded as the institution of proceedings: Re Vernazza [1960] 1 QB 197; Attorney General v Keating (supra). I note also that pursuant to s 3 of the VPR Act 1930, in addition to being satisfied that the requirements of habitual and persistent conduct have been made out, the Court is required to exercise its discretion as to whether a restrictive order should be granted.

101 The evidentiary materials before me reveal that the respondent has a propensity to commence legal proceedings whenever he feels a sense of grievance against a third party or whenever a third party appears to be acting in a manner which does not suit his interests. The commencement of legal proceedings appears to be a precipitate and disproportionate response to the matter in dispute, for in most cases the proceedings were not pressed to a conclusion. This indicates that in such cases the respondent was pursuing a collateral purpose and the proceedings can be regarded as an abuse of process.

102 I recognise that, on one view of the matter, the Empire Avenue transaction gave rise to a somewhat ambiguous situation in which it was not necessarily unreasonable for the respondent to obtain a ruling from the Supreme Court as to whether he was entitled to relief. However, it is clear from the reasoning of the Full Court concerning the transaction that the relevant issues were examined thoroughly. It is difficult to accept that the respondent acted reasonably thereafter in making allegations of fraud and improper conduct which were not supported by sufficient evidence.

103 It is significant that Sheppard J concluded that there was not to be found in the evidence any support for the respondent's allegation of fraud except the assertions made by the respondent himself. His Honour came to the conclusion, quite firmly, that the case which the respondent sought to make in respect of forged documents should be rejected. He was not satisfied that there was any fraudulent conduct of the kind alleged. To my mind, it is quite clear that Ms Leahy has been subjected to costs and anxiety as a result of allegations made by the respondent and proceedings commenced by him which were not backed up by evidence.

104 The evidentiary materials before me show that the respondent has repeatedly sought violence restraining orders and brought private prosecutions against persons even after proceedings on earlier applications or complaints based upon the same grounds have been dismissed. This pattern is visible in the applications concerning local government officers and in the other repeated applications for violence restraining orders and other forms of relief affecting members of the respondent's family. The repetitious nature of the respondent's conduct is visible also in his pursuit of Ms Leahy. On 1 June 1998 the respondent brought a complaint against Ms Leahy alleging that she committed perjury. That complaint was struck out on 26 August 1998 but was instituted again on 25 October 2001. In addition, on 15 June 1999 the respondent commenced a motion to commit for contempt, which was dismissed on 19 July 1999. A complaint in relation to forgery and uttering was also made against Ms Leahy on 29 February 2000 and struck out on 12 May 2000.

105 I take account also of a complaint against Dr Nadarajah under s 336 of the Criminal Code which was made on 31 December 2001, dismissed on 27 February 2002 and made again on 18 March 2002. The respondent has proceeded against his sister, Leonie Hunt, on 12 occasions and against his brother-in-law, Mr Hodges, on nine occasions. It will be apparent from the narrative that other repeated applications for relief have been made.

106 On the evidence before me, the applications for violence restraining orders could not have been founded on any reasonable belief that the persons against whom the orders were sought posed threat to the respondent. Nor could the private prosecutions have been founded on any reasonable belief that the defendants had committed the offences for which they were charged. It is significant that the respondent has generally been unsuccessful in obtaining relief and unsuccessful in pressing various matters to a conclusion including the appeals mentioned earlier. The affidavit sworn by the respondent in support of the applications for a violence restraining order and the manner in which the respondent has worded the various alleged offences suggest a pattern of the respondent filing an application or complaint as a reaction to his perceiving that a person is acting against his interest.

107 The conduct of the respondent is exemplified by an incident with Dr Patchett where a requirement that the respondent make a request under Freedom of Information legislation prompted the service of summonses. Other psychiatrists are the subject of private prosecutions arising out of matters that occurred in the discharge of their statutory responsibilities. Dr Moore and Dr Wilkinson, the veterinary surgeons, have been the subject of private prosecutions arising out of their treatment of the respondent's dogs. Local government employees have been subjected to legal proceedings in the course of carrying out their duties.

108 The evidentiary materials establish that since 1991 the respondent has made 27 applications for violence restraining orders, brought 48 private prosecutions, commenced three civil actions and lodged 33 single Judge appeals and one Full Court appeal. The great majority of these proceedings have been commenced since 1998. Save for one application for a violence restraining order in which the person against whom the order was sought consented to the application, and for a number of unresolved private prosecutions, every other matter instituted by the respondent has either been dismissed, struck out or not pursued by the respondent. The frequency and repetitive nature of these proceedings clearly demonstrates a habitual and persistent pattern of instituting proceedings by the respondent.

109 I am satisfied that the various proceedings instituted by the respondent fall within the criteria enunciated in Attorney General v Michael (supra) in that the proceedings have been instituted with the intention of annoying or embarrassing the person against whom they are brought and for a collateral purpose which represents an abuse of process. I am satisfied also that the respondent's complaints and applications for violence restraining orders fall within the category of vexatious proceedings contemplated by Anderson J in Attorney General v Michael (supra), namely, proceedings instituted by a person who sees dark conspiracies and a threat of great harm to himself in the real or imagined wrongs of another.

110 I am satisfied also that in the exercise of its discretion the Court should grant a restrictive order. Such an order does not extinguish or remove the respondent's entitlement as a citizen to litigate and to seek redress at law for his grievances. A restrictive order simply controls the manner in which the right is exercised.

111 The respondent has repeatedly sought violence restraining orders and brought private prosecutions against a large number of people without any reasonable foundation. The concern and distress, and potential for damage to reputation and professional embarrassment, which those people would be likely to experience as a result of the institution of the proceedings is self evident. Further, only a few of the proceedings have been brought against government officials with access to publicly funded legal assistance. The cost to those persons of securing legal representation is a factor counting towards the grant of an order under s 3 of the Act.

112 Further, the respondent continues to institute such proceedings, and has continued to indicate his intention to institute further proceedings on plainly vexatious grounds. For these reasons I am persuaded that in the exercise of the discretion under s 3 of the VPR Act 1930 it is appropriate that a restrictive order be granted.

113 In summary, then, I am satisfied that an order should be made as follows: that forthwith, and in accordance with s 3 of the Vexatious Proceedings Restriction Act 1930, no legal proceeding shall be instituted by the respondent, Lindsay Hunter, in the Supreme Court, or in any inferior court, unless the respondent shall first obtain leave of the Supreme Court, or of a Judge thereof, after satisfying the Court or the Judge that the proposed proceeding will not be an abuse of the process of the court in which it is intended to be instituted and that there is prima facie ground for such proceeding.

Proceedings Restriction Act 1930

Law (Mentally Impaired Defendants) Act 1996

Penalties and Infringement Notices Enforcement Act 1994

Attorney General v Hunter [2002] WASC 189

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (128 paragraphs)

Attorney General v Hunter [2002] WASC 189 (2 August 2002)

Parties

Legislation Cited (5)

Cases Cited (1)