Supreme Court of WA|2000-04-19|Before: Anderson J

Attorney General v Keating [2000] WASC 93 (19 April 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ATTORNEY GENERAL -v- KEATING [2000] WASC 93

Practice and procedure - Vexatious litigants - Proceedings to restrain - Test of "vexatious" and "habitually and persistently" - Relevant considerations

1 ANDERSON J: This is the Attorney General's application by way of originating motion pursuant to s 3 of the Vexatious Proceedings Restrictions Act 1930. Section 3 of the Act is in the following terms:

"If...the Supreme Court is satisfied that any person...has habitually and persistently and without any reasonable ground, instituted or commenced vexatious proceedings, whether in the Supreme Court or in any inferior court, and whether against the same person or against a different person, the court may...order that no legal proceedings shall, without the leave of the Supreme Court, be instituted by him...and 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 a prima facie ground for the proceedings."

2 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.

3 It would appear from the claims made in the various proceedings commenced by the respondent that all of the proceedings stem from an event that occurred in 1976. In April of that year the respondent, then of the age of 15 years, was diagnosed with a brain tumour, which was successfully removed by surgery. The respondent had attended a medical practitioner in Bunbury on several occasions in the months preceding the operation, with complaints of dizziness, headaches and lethargy. The doctor, Dr Woods, did not diagnose the existence of a tumour. On 1 April 1976 after an episode of loss of consciousness the respondent was hospitalised in Bunbury and x-rays were taken and the tumour was discovered. One of the respondent's allegations against Dr Woods is that notwithstanding positive x-ray evidence of the tumour, Dr Woods did not immediately attend the respondent in the Bunbury Hospital. The respondent had been admitted by another doctor. It would appear that Dr Woods did attend the respondent on 3 April 1976 and arranged with the respondent's mother to have him taken to Royal Perth Hospital where the tumour was removed by the neurosurgeon Dr Michael Lee. One of the themes running through the respondent's claims in the proceedings instituted by him is that, in the period between 1 April and 3 April Dr Woods had left him to die, to cover up his failure to diagnose the tumour.

4 In 1979 the respondent was given legal aid to investigate a case of negligence against Dr Woods. Solicitors Corser and Corser were assigned, but no proceedings were instituted. In 1984 the respondent received another legal aid grant for the same purpose. Solicitors Patterson and Dowding were assigned. Any claim that the respondent may have had against Dr Woods would become statute-barred on 8 June 1984, being six years after the respondent's 18th birthday and Patterson and Dowding prepared a writ of summons so that proceedings could be commenced in time. Apparently there was an arrangement that the respondent would collect the writ from Patterson and Dowding and file it in person. It appears that he did collect the writ on about 7 June 1984, but did not file it.

5 So far as it appears from the material the evidence to support a claim for professional negligence against Dr Woods was thin, to say the least. The neurosurgeon, Dr Lee, who operated on the respondent in 1976 to remove the tumour gave a report to Patterson and Dowding on 2 May 1984 in which he said the following:

"From [Dr Woods'] referring letter, it seems clear that here was a 15 year old boy with some domestic conflicts complaining of headache and there was nothing to find on examination. Specifically, Dr. Woods felt that his fundi were normal, he saw an Ophthalmologist who presumably would have been concerned if there were any signs of raised intracranial pressure, but when Dr. Woods reviewed him at the time of referral, he felt that on fundoscopy, Oisin's discs were showing signs of raised pressure and so he referred him on for further treatment. I would say that on the information that I have, that this was a perfectly reasonable series of events. I do not personally feel there is any grounds to suggest for one moment, that Dr. Woods was negligent, this type of presentation and its timing for referral for neurosurgical care of brain tumours, is common. Eight years later, we probably see these patients a little earlier, that is only because of the greater availability of the CT scanner. I trust this answers your queries."

6 In due course the respondent was placed on an invalid pension. He was seen quite regularly by medical officers in the Health Department of Western Australia, including Dr Michael Allsop, a psychiatrist attached to the Fremantle Clinic of the Health Department. The respondent applied for, but was initially refused, a Commonwealth Department of Community Services Rehabilitation Allowance to complete a TAFE horticultural certificate course. This refusal was overturned on appeal by the Administrative Appeals Tribunal and Dr Allsop gave evidence to that Tribunal. In November 1989 the respondent obtained a "New Enterprise Scheme" grant from the Commonwealth Department of Employment, Education and Training to commence a landscaping business. In December 1989 he asked Dr Allsop whether he should purchase a new car or a second-hand car for the proposed business. In May 1994, in Local Court proceedings which are outlined below, the respondent swore an affidavit as to the response he received from Dr Allsop and the affidavit includes the following: (AB 35)

"I said to Dr Michael Allsopp my sister was encouraging me to purchase a new car and was persuading my mother to that view. I said to Dr Michael Allsopp I had no experience in landscape gardening and that the economy was deteriorating. Dr Michael Allsopp asked me if I had been left money by a relative. I said no but that I had been told by a [sic] unreliable uncle in Kansas City, Mo. in the United States my grandmother now deceased had been left $7. million by my step-grandfather. Dr Michael Allsopp said in answer to my question about buying a new car and I quote 'If you have the money' unquote. In surprise I repeated the question. Again Dr Michael Allsopp repeated and I quote 'If you have the money' unquote. I took Dr Michael Allsopp's advice despite thinking the advice was peculiar. Dr Michael Allsopp exerted undue influence on me to purchase a new car I could not afford and commence a business liable to failure because I was inexperienced and profoundly amnesiac."

7 It would appear that the respondent's horticulture business was not successful and on 10 September 1991, the first of the legal proceedings with which the court is now concerned was commenced. This was by a plaint out of the Local Court at Fremantle naming as the defendant "Health Department of Western Aust" and claiming the sum of $10,000 giving the following particulars of claim:

"A claim for damages to health and pecuniary loss arising directly from advice supplied by Dr Michael Allsopp, Western Australian Health Department physician."

8 In answer to a request for particulars the respondent on 23 December 1991 gave the following particulars:

"(a) damage to health: neuropsychiatric breakdown, apoplexy, paraesthesia of right arm and three fingers of right hand, requirement of medical consultation fortnightly over a period exceedng 12 months, and general deterioration of health to meet the requirements for the granting of the Invalid Pension.

(b) pecuniary loss: financial and associated health problems could not warrant purchase of a new vehicle, damage to health has disabled rehabilitation towards improved health, employment or further formal education.

(c) the nature of the advice provided by Dr Michael Allsopp: Dr Allsopp advised to purchase a new vehicle and I quote by answering 'If you have the money' unquote. Dr Allsopp approved of my proposed business venture.

(d) the circumstances of the provision of the advice: Dr Allsopp was consulted in his office in late 1989 concerning -

(i) the advisability of the Plaintiff commencing a landscape gardening business

(ii) the advisability of purchasing a new vehicle for the proposed business."

9 In April 1992 the respondent applied in the Local Court for an order transferring the Local Court proceedings to the Supreme Court. In his affidavit in support of that application the respondent deposed that he intended to issue "writs in the Supreme Court of Western Australia due to the recently obtained evidence". He deposed that there would be a need to "call a considerable number of medical expert witnesses" in both actions and on this ground it was convenient that the actions be joined "as two causes of action against the defendant".

10 It is not clear what, if any, order was made on that application. The proceedings continued in the Local Court although it does not seem that any progress was made. On 10 February 1994 the respondent swore an affidavit in the Local Court proceedings to the effect that he now claimed unliquidated damages and in the affidavit he set out the basis of his claim in the following terms:

"3. The Plaintiff claims Dr Michael Allsopp was aware at the time of giving his advice to purchase a new car that:

(a) The Plaintiff said to Dr Michael Allsopp the Plaintiff's young sister was encouraging the Plaintiff to purchase a new car and that the Plaintiff's young sister was persuading the Plaintiff's mother to that view.

(b) The Plaintiff had massive brain damage in that the Plaintiff's cerebral ventricles were totally collapsed.

(c) Dr Michael Allsopp at the time of giving his advice to purchase the new car was incensed that the Plaintiff could purchase a new car after giving evidence in the Administrative Appeals Tribunal in support of a Rehabilitation Allowance from the Commonwealth Department of Community Services in December 1987 which was upheld by Mr Justice Nicholson.

(d) The Plaintiff had personality deficits and a long history of organic psychiatric disturbance.

11 By chamber summons dated 25 March 1994 the respondent applied to enter the matter for trial and by consent the matter was listed for a three day trial to commence on 6 July 1994.

12 In May 1994 the respondent made an application in the Local Court proceedings for summary judgment in the sum of $25,000. In support of that application he swore an affidavit of 42 paragraphs annexing 23 exhibits. In the affidavit he gave a long account of the troubles he had experienced in relation to his medical condition, the history of his receipt of Social Security benefits and the steps which he had taken on the strength of Dr Allsop's "negligent advice, undue influence and non-specific encouragement".

13 On 3 June 1994 the respondent applied by chamber summons to vacate the trial "on the ground that if the application for summary judgment does not succeed the Plaintiff requires further and better discovery and inspection of documents".

14 The application for summary judgment and the application to vacate the trial came on for hearing on 15 June 1994 and both applications were dismissed. The matter was called on for trial on 6 July 1994, but the respondent did not appear. The matter was stood down for a time and then it was dismissed.

15 On 3 August 1994 the respondent applied by chamber summons for "a stay of proceedings or alternatively to restore cases struck out or alternatively to re-submit summary relief application". In support of this application the respondent filed an affidavit deposing that he was profoundly amnesiac and just prior to the date of the commencement of the trial, he was severely depressed. He gave as his reason for not attending the trial that:

"5. I believed that the Case could not be non-suited on the 6th day of July 1994 trial date since a Chambers Bailiff's attendance fee of $2. has not been paid."

16 This application which was in effect to reinstate the dismissed action was heard on 10 August 1994 and dismissed.

17 On 19 August 1994 the respondent lodged an appeal to the District Court against the dismissal of the reinstatement application, seeking orders that the Local Court action be relisted and permanently stayed pending the provision of further and better discovery. This appeal was not pursued.

18 Meanwhile on 13 August 1992 the respondent had issued a Supreme Court writ against Dr Woods and the Minister for Health. The proceedings were commenced in person and the writ had a statement of claim endorsed on it comprising 71 paragraphs. The cause of action against Dr Woods was in negligence arising out of the failure to diagnose the brain tumour and failing to adequately investigate the respondent's symptoms. Included in the statement of claim was a claim that a Dr Jeffrey Faulkner had written a medical report "for the Director of Mental Health Services dated 12 March 1984" which was "misleading and completely false" and was "intended to prevent the plaintiff effecting the right to sue Woods for professional negligence". It is implicit in the statement of claim that the respondent claims that he did not file the writ prepared by Patterson and Dowding within the time limit prescribed by the Limitation Act because he became depressed and upset on reading Dr Faulkner's report. Dr Faulkner was not joined as a defendant.

19 The action against the Minister also included claims in respect to the advice given by Dr Allsop as to the purchase of the vehicle and the starting-up of the horticultural business. It also included claims that the Minister had allowed dental decay to occur in the respondent in 1991 and 1992.

20 Both Dr Woods and the Minister applied under O 20 r 19 to have the statement of claim struck out, essentially on the ground that it disclosed no reasonable cause of action. This summons was listed to be heard on 29 September 1992. On 24 September 1992 the respondent filed an affidavit said to be an "affidavit of opposition to the Master in Chambers making orders pursuant to Order 20 Rule 19 as the Master has no criminal jurisdiction pursuant to Order 60 Rule 1".

21 The affidavit, including the following assertions:

"3. Order 60 Rule 1 precludes a Master having jurisdiction in relation to proceedings on the Crown side of the Court or criminal proceedings.

4. Dr Jeffrey Faulkner's medical report dated 12th March 1984 was intended to prevent the plaintiff effecting a right to sue the First Defendant Woods.

5. The Plaintiff asserts Dr Jeffrey Faulkner's conduct was criminal and that Dr Jeffrey Faulkner attempted to pervert the course of justice.

6. The Master has no jurisdiction to make orders in the Chambers Summons Applications listed to be heard on 29th September.

7. The First Defendant's Defence to this Action pleads the general issue. The pleading of the general issue is an abuse of the process of the Court.

8. The Plaintiff requests the Master to refer the matters for determination by the Full Court of the Supreme Court for Directions of the proper course the parties to this Action take..."

22 Evidently the matter was adjourned on 29 September. On 20 November 1992 the respondent filed a summons returnable on 30 November 1992 for an order that:

"The First Defendant Minister for Health give full and better written submissions in support of his application for orders pursuant to Order 20 Rule 19..."

23 Apparently that application was dismissed and on 14 December 1992 the respondent filed a notice of appeal to the Full Court "in respect of the below mentioned decision refusing an application for further and better written particulars on 30 November 1992 ...".

24 This appeal was not proceeded with. The action remained on foot and on 3 May 1993, Dr Woods filed an amended defence in which he pleaded that if the respondent had a cause of action against him, it arose in April 1976 at the latest and was therefore barred by s 38 of the Limitation Act. In July 1993 the Minister for Health filed an amended defence in which he too pleaded the Limitation Act in respect to any claim which the respondent might have arising out of the actions of Dr Faulkner in 1984. By summons dated 1 September 1993 the respondent applied to strike out the defences and amended defences. This application was heard by Mr Commissioner Pringle QC on 10 September 1993 and on 21 September 1993 he rejected the respondent's applications with the exception of an application seeking to strike out parts of the amended defences for non-compliance with O 20 r 14(3). That part of the application was adjourned sine die, but otherwise the applications were dismissed.

25 The respondent persisted in his attempts to have the defences struck out. He also sought to have his applications to that end listed for hearing before the Full Court, persisting in his assertion that "[t]he Masters have no jurisdiction in relation to proceedings on the Crown side of the Court".

26 On 23 December 1993 the respondent issued a chamber summons seeking to change the name of the second defendant to "The State of Western Australia" and for the same relief which he had unsuccessfully sought before Commissioner Pringle QC on 10 September 1993. These applications were dismissed by Justice Walsh on 14 January 1994.

27 The respondent then issued three chamber summonses (one dated 14 January 1994 and two dated 20 January 1994), supported by four affidavits (two sworn on 20 January 1994 and two on 27 January 1994) seeking to pursue matters dealt with adversely to him in previous applications, namely, the striking out of the amended defences and the lack of jurisdiction in the Master. On 31 January 1994 Master Adams dismissed the respondent's strike-out application and adjourned the other applications to a special appointment at the next available date. On 9 February 1994 the respondent lodged an appeal in relation to the orders of adjournment made by Commissioner Pringle QC in September 1993 and the orders by Master Adams dismissing his strike-out application. This appeal has not been pursued. It should be mentioned however that on 9 February 1994 the respondent issued a chamber summons seeking to stay proceedings in the action pending the appeal. The stay application was heard by Nicholson J on 28 February 1994 and dismissed.

28 The respondent then filed a chamber summons on 1 March 1994 seeking to stay the special appointment which had been arranged by Master Adams. Justice Murray heard that application and he dismissed it on 22 March 1994. Two days later the respondent filed a summons seeking further and better particulars of the amended defences. Justice Owen heard this application on 5 April 1994 and dismissed it, although the respondent was given leave to file replies to the amended defences. This he did on 21 April 1994.

29 On 22 April 1994, by application P9 of 1994, the respondent applied for special leave to appeal to the High Court from the decision of Justice Owen of 5 April 1994 refusing the respondent's application for further and better particulars of the amended defences.

30 The defendants' applications to strike out the statement of claim and dismiss the proceedings were heard by Master Adams on 26 April 1994 and on 17 May 1994 he ordered that the statement of claim be struck out and the action dismissed as against both defendants. His reasons were essentially that no reasonable cause of action was disclosed. There was no appeal from that decision.

31 On 29 September 1994 the respondent wrote to the Crown Solicitor's Office advising that he intended to sue the State of Western Australia for a declaration that Master Adams had exceeded his jurisdiction in dismissing the respondent's action. On 15 November 1994 the respondent wrote again to the Crown Solicitor's Office advising that he no longer intended to sue the State of Western Australia, but intended instead to commence an action in the High Court against the State of Western Australia, Dr Woods and the Commonwealth of Australia "for maladministration of the High Court". This he actually did by action number P5 of 1995 issued out of the Perth Registry of the High Court against the three defendants referred to above. The writ had endorsed on it a claim in the following terms:

"The plaintiff's claim is for damages in relation to maladministration of High Court of Australia special leave to appeal application P9 of 1994 between Oisin Geoffrey Keating Applicant, Samuel John Piers Woods First Respondent, and the Minister for Health Second Respondent.

This writ is issued by the invalid Plaintiff in person who resides at Unit 14, 51 Stirling Highway, Nedlands ..."

32 There is evidence of correspondence between the High Court registry and the respondent in which procedural requirements were outlined to the respondent and on 7 January 1997 he was told in effect that if he wished his action to proceed he would have to comply with the directions within six months otherwise it would be deemed abandoned. He did not comply with the directions and on 19 September 1997 he was advised by the High Court Registry that his appeal was deemed abandoned.

33 On 22 February 1998 the respondent wrote to the Registrar of the High Court saying:

"I hereby give notice of discontinuance of the above actions due to my inability to progress the actions ..."

Justices Act Complaints

34 It would seem that the respondent took the view that a large number of people had conspired to obstruct his attempts to get before the High Court and he commenced to issue a series of complaints in the Perth Court of Petty Sessions. On 15 September 1998 he issued a complaint against the District Registrar alleging that he "conspired to defeat justice to prevent High Court action P9 of 1994... from proceeding" contrary to s 42 of the Crimes Act. That complaint came before a Magistrate on 4 November 1998 and it was dismissed.

35 On 22 March 1999 the respondent issued complaints against 24 defendants alleging the same conspiracy. These defendants include: the retired High Court Justice the Hon John Toohey QC; the Attorney General of the Commonwealth, Mr Daryl Williams; the Commonwealth Ombudsman, Mr Hedges; several ophthalmologists, including Professor Ian Constable; a psychiatrist, Dr Stewart McCormack; the central office co-ordinator at the Supreme Court; three Federal police officers; and, a number of other people whose paths had crossed the respondent's in one way or another at one time or another. The complaints were supported by a long affidavit and it is sufficient for present purposes to refer to some parts of that affidavit. In par 10 the respondent deposed:

"My mother...was operated on by Michael Anthony Walsh, an ophthalmologist, for glaucoma in her right eye in about 1989, and in her left eye in June, 1993. The bilateral trabeculectomies were not necessary as my mother did not suffer from glaucoma. While performing the left eye trabeculectomy Michael Anthony Walsh maliciously sutured the muscle operating the lens to prevent my mother seeing at near distances, such as reading text. It appears that Douglas James Bishop, solicitor for the First Respondent procured this crime to conspire to defeat justice in relation to Supreme Court of Western Australia Action No. 1986 of 1992 ..."

"Michael Anthony Walsh, Ian Constable, Robert G Linton, Dagmar Barnes, and Issac Raiter, all of which are ophthalmologists my mother has consulted, with full knowledge that my mother had the bilateral trabeculectomy operations and never had glaucoma are conspiring to defeat justice in relation to High Court P9 of 1994 by refusing to remove suture material from my mother's left eye preventing her seeing at near distances."

"David Dent, the Central Office Coordinator of the Supreme Court, conspired to defeat justice by entering in the cause book of the Supreme Court fictitious or illusory appearances in the abovementioned Supreme Court Action. This conspiracy to defeat justice has its sequel in relation to the judicial power of the Commonwealth in the abovementioned High Court Action."

"David Redpath of the Commonwealth Attorney General's Department in Perth is conspiring with the Federal Attorney General, Daryl Williams. I have written numerous times to both complaining of a conspiracy to defeat justice preventing me from proceeding in High Court Action P9 of 1994. Neither person has done anything about it. Mr. Blick, the Inspector General of Intelligence and Security in Canberra refuses to confirm or deny whether Daryl Williams or the Australian Security Intelligence Organisation is attempting to prevent me from proceeding in High Court Action P9 of 1994."

"John Leslie Toohey is a retired High Court Judge. John Leslie Toohey, Martin T. F. Jan, Tracy Freeman, Elizabeth Stanley, and John McDonough all of the Perth Office of the High Court of Australia Registry are refusing to allow me to be heard in High Court action P9 of 1994."

40 On 20 April 1999 the Acting Director of Public Prosecutions for the Commonwealth exercised his powers pursuant to s 9(5) of the Director of Public Prosecutions Act 1983 (Cth) to take over the 24 complaints.

41 On 5 May 1999 the respondent issued three additional complaints in much the same terms as the 24 complaints which have been referred to. These complaints were also taken over by the Acting Director of Public Prosecutions. On 19 May 1999 all 27 complaints were formally discontinued by the Director in the Court of Petty Sessions.

42 On 21 May 1999 the respondent issued another 27 complaints, many of these being against the same persons the subject of earlier complaints. Once again, a long affidavit was filed in support of the complaints and it contained allegations of the same general character as those contained in the affidavit already referred to. In the month of June two more complaints against other persons were issued by the respondent. One was against a doctor at St John of God Hospital alleging conspiracy. The other was against a person at the Applecross Nursing Home, also alleging conspiracy. All of these complaints were brought before the Court of Petty Sessions on 7 July 1999 and all were dismissed.

43 On 22 September 1999 the respondent issued complaints against 44 defendants, including many of the people the subject of earlier complaints which had either been discontinued or dismissed. All complaints allege a conspiracy "to defeat justice to prevent High Court of Australia action P9 of 1994...from proceeding". Once again, the complaints were supported by a long affidavit sworn by the respondent containing allegations of the same kind as contained in the earlier affidavits.

44 These complaints came before the Court of Petty Sessions on 29 October 1999 and were dismissed as an abuse of process.

45 On 25 October 1999 the Attorney General brought this originating motion for an order under s 3 of the Vexatious Proceedings Restriction Act 1930. The application came before White J on 3 November 1999 and he directed the respondent to file and serve an affidavit in defence of the application within 28 days, gave the Attorney General leave to file and serve an affidavit in reply within a further 7 days and adjourned the application for hearing before a Judge in court on a date to be fixed.

46 The respondent filed an affidavit in which, amongst other things, he said:

"I ask for leave of the Supreme Court to subpoena (44) forty-four witnesses on the hearing of the application..."

and he sought an adjournment of eight weeks. By letter dated 7 December 1999 to the Crown Solicitor's Office copied to the respondent, the parties were advised by the Supreme Court Registry that the motion had been listed for a special appointment "before a Judge in Chambers" on Tuesday, 18 January 2000. The respondent wrote to the Civil Listings Co-ordinator on 9 December 1999 pointing out that White J had directed the hearing to be before a Judge in court and not in chambers, and requesting that the hearing be listed before a Judge in open court. The letter concluded:

"I ask for the hearing to be before a Judge in open Court and to be given at least 6 weeks from you giving me notice of the hearing to allow me time to subpoena up to 50 witnesses."

47 On 20 December the civil listings co-ordinator of the Supreme Court wrote to the respondent explaining that his earlier letter contained a typographical error and the matter would be listed in court in accordance with White J's order of 3 November. The civil listings co-ordinator also advised the respondent that he was unable to vacate the hearing date and that the only way the hearing date could be vacated was on formal application by summons supported by affidavit.

48 I should add that the respondent had meanwhile made an application in chambers to permanently stay the Attorney General's application. That application was dismissed by Miller J on 10 December 1999. It is worth noting that the basis of the application was that the respondent wished to apply to the High Court "for an Order of Prohibition to prevent the application of the Attorney General for Western Australia from proceeding on the ground the application is ultra vires as the Respondent cannot avail of the right to apply for legal assistance under the Poor Persons Legal Assistance Act 1928". His point appears to be that this Act has been repealed and that, as he therefore cannot obtain legal aid under it, there was no power to make the declaration sought by the Attorney General, the power to make that declaration being conditional upon a grant of legal aid to the respondent under the repealed Act. This is, of course, a complete misconception.

49 On 13 January the respondent filed an affidavit in opposition to the Attorney General's application setting forth grounds upon which the respondent contends that this Court ought not to make an order on the Attorney General's application. The affidavit contains 11 paragraphs and as best I understand it, the grounds are as follows:

(i) This Court has no authority to interfere in proceeding initiated by the respondent in the High Court and cannot make any order purporting to prevent those proceedings going ahead.

(ii) The respondent did not receive natural justice in the Court of Petty Sessions when his numerous complaints were either discontinued or dismissed "in that no defendant appeared in person" thus denying the respondent "the right to cross examine each and every defendant".

(iii) The Central Office of the Supreme Court has obstructed the respondent in his attempts to proceed with the appeal number 16 of 1994.

(iv) The respondent is legally insane so that no proceedings against him should be continued.

50 There is no merit in these submissions. Section 3 of the Vexatious Proceedings Restriction Act does not authorise this Court to make any order inhibiting litigants from instituting or proceeding with proceedings in the High Court and the originating motion does not seek any such order. The order that is sought is that "no legal proceedings shall be instituted by [the respondent] in the Supreme Court, or in any inferior court" without leave of the Supreme Court. The allegation that the respondent was not accorded natural justice in the Court of Petty Sessions because the defendants did not appear is based upon a misconception. No defendant is bound to appear to answer a complaint. Anyway, an allegation of denial of natural justice on the hearing of proceedings is no answer to a claim that the proceedings are vexatious. There is no evidence that the Central Office of the Supreme Court has acted inappropriately. There is no evidence that the respondent is a person under a disability within the meaning of O 70.

51 When this application came on for hearing before me on 18 January, the respondent made no appearance. An unsuccessful search was made for him in the precincts of the Supreme Court and the application proceeded in his absence. Affidavit material has since been filed on behalf of the Attorney General from which it is abundantly clear (if it was not already) that the respondent had full notice of the hearing.

52 What the Attorney General must show is that the respondent has:

instituted or commenced vexatious proceedings in the Supreme Court or in any inferior Court.

53 I am satisfied that the plaintiff has habitually, persistently and without reasonable grounds instituted or commenced vexatious proceedings.

54 The conduct of the proceedings by the respondent in the actions which he commenced in the Local Court and the Supreme Court meets 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, satisfy the test suggested by Yeldham J in Hunters Hill Municipal Council v Pedler (supra) at 487 - 488 and approved in Attorney General v Michael [1999] WASCA 181.

55 Between 15 September 1998 and 26 September 1999 the respondent instituted a total of 101 complaints alleging a conspiracy to defeat justice by preventing his application for special leave to the High Court from being dealt with. One or more complaints was laid on each of 15 September 1998, 22 March 1999, 5 May 1999, 21 May 1999, 4 June 1999, 30 June 1999 and 20 September 1999.

56 These complaints were manifestly groundless. They could not have been founded on any reasonable belief that the defendants named in the complaints had committed the offence with which each was charged and in that sense they were plainly vexatious. I am satisfied that the respondent's conduct with respect to these complaints was persistent. A number of defendants had been repeatedly charged by the respondent with the same offence, after the earlier complaints had been discontinued by the Director of Public Prosecutions. The officer in charge of the High Court Registry in Perth, Mr Martin Jan, was charged four times. That is, he was the defendant in four successive complaints laid by the respondent. Of the 44 defendants charged in the last group of complaints, 26 had been the subject of earlier proceedings.

57 In summary, the respondent has commenced two civil actions and within those actions which, for the most part, contained claims which were groundless, he made many groundless applications and launched a number of groundless appeals. By laying complaint after complaint, he charged a large number of persons, many repeatedly, with a very serious criminal offence - conspiracy to pervert the course of justice - without any reasonable foundation. I accept the Attorney General's submission that the concern and distress and the potential for damage to reputation and professional embarrassment which the institution of these proceedings would be likely to cause the defendants, many of whom hold high office, must be very substantial. It is appropriate that they be protected from further abuse of the processes of the courts.

58 For these reasons, I am prepared to make the order sought by the Attorney General.

Public Prosecutions Act 1983

Persons Legal Assistance Act 1928

Proceedings Restrictions Act 1930

Proceedings Restriction Act 1930

Attorney General v Keating [2000] WASC 93

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (102 paragraphs)

Attorney General v Keating [2000] WASC 93 (19 April 2000)

Parties

Legislation Cited (4)