Supreme Court Act 1935 (WA), s 4

Vexatious Proceedings Restriction Act 2002 (WA), s 3, s 4, s 6

Vexatious Proceedings Restriction Act 1930 (WA), s 3

Attorney General v Michael & Anor [1999] WASCA 181

Crown Solicitor for the State of Western Australia v Michael & Michael, unreported; SCt of WA; Library No 980425; 30 July 1998

Michael v The Crown Solicitor [2004] WASCA 45

Attorney General (NSW) v Bhattacharya [2003] NSWSC 1150

Attorney General for the State of Victoria v Kay [1999] VSC 30

Attorney General v Hunter [2002] WASC 189

Attorney General v Keating [2000] WASC 93

Attorney General v Wentworth (1988) 14 NSWLR 481

Attorney General, Re; Ex parte Skyring [1996] HCA 4; (1996) 135 ALR 29

Granich Partners v Yap [2003] WASC 206

1 LE MIERE J: The Attorney General has applied by originating motion for an order that no legal proceeding shall be instituted by either of the respondents in any court or tribunal in Western Australia unless he or she shall first obtain the leave of the relevant court or tribunal pursuant to s 6 of the Vexatious Proceedings Restriction Act 2002 (WA). The Attorney General also seeks an order that the whole of any proceedings that have been instituted by either respondent in any court or tribunal in this State be stayed.

The Act

2 The Vexatious Proceedings Restriction Act 1930 (WA) ("the 1930 Act") was repealed and replaced by the Vexatious Proceedings Restriction Act 2002 (WA) ("the Act").

3 Section 4 of the Act provides that if the court is satisfied that a person has instituted or conducted vexatious proceedings (whether before or after the commencement of the Act) or it is likely that the person will institute or conduct vexatious proceedings the court may make either or both of the following orders:

1. an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;

2. an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under s 6(1).

4 Section 3 of the Act defines "proceedings" to include:

"(a) any cause, matter, action, suit, proceeding, trial or enquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal;

(b) any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and

(c) an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal."

5 Thus, "proceedings" includes all forms of originating proceedings, any interlocutory proceeding or step taken in the course of a proceeding before a court or tribunal and any appeal from any decision or determination whether final or interlocutory.

6 Section 3 of the Act defines "vexatious proceedings" to mean proceedings:

"(a) which are an abuse of the process of a court or a tribunal;

(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

(c) instituted or pursued without reasonable ground; or

(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose."

7 Thus vexatious proceedings includes proceedings that are instituted for the purpose of harassing or annoying, or causing delay or detriment or for any other wrongful purpose; or are conducted for the purpose of harassing or annoying, or causing delay or detriment; or to achieve any other wrongful purpose. Proceedings are also vexatious if they are objectively an abuse of the process of a court or a tribunal or are instituted or pursued without reasonable ground. Thus, proceedings may be vexatious if they have these latter characteristics regardless of the subjective intention, motive or state of mind of the litigant.

8 This is the second application of this nature brought by the Attorney General against the respondents, whom I shall refer to as Dr and Mrs Michael respectively. The first application was made in Supreme Court CIV 2079 of 1994 under s 3 of the 1930 Act. That application was dismissed by Wheeler J: see Crown Solicitor for the State of Western Australia v Michael & Michael, unreported; SCt of WA; Library No 980425; 30 July 1998. The Attorney General appealed to the Full Court. The appeal was dismissed in Attorney General v Michael & Anor [1999] WASCA 181.

9 In Supreme Court CIV 2079 of 1994, the Attorney General relied upon two unrelated sets of proceedings in order to demonstrate that Dr and Mrs Michael had habitually and persistently commenced "vexatious proceedings". The first set of proceedings can be described broadly as the "Monitronix" litigation and the second as the "Tully Court" litigation.

10 Similarly, in the present application the Attorney General initially sought to rely upon, amongst other things, both the Monitronix litigation and the Tully Court litigation to establish that the respondents had instituted or conducted vexatious proceedings, or are likely to institute or conduct vexatious proceedings. Counsel for the Attorney General initially sought to rely upon all the affidavits tendered by the Attorney General in evidence in CIV 2079 of 1994. Those affidavits relate to both the Monitronix litigation and the Tully Court litigation. In the course of the hearing of this application counsel for the Attorney General informed the court that he no longer intended to rely upon the affidavits relating to the Monitronix litigation. Accordingly, it is not necessary or appropriate that I further consider the Monitronix litigation.

11 As I have said the Attorney General tendered and relied upon the affidavits filed in CIV 2079 of 1994 that relate to the Tully Court litigation. Those affidavits are exhibits TC 1 to TC 30 in these proceedings. When this matter was heard on 30 March 2004 the applicant tendered five affidavits sworn by Colin Peter Wayte, a solicitor employed by the Crown Solicitor for the State of Western Australia who has the care and conduct of the matter on behalf of the applicant. The principal affidavit tendered by the applicant was the affidavit of Mr Wayte sworn 2 April 2003. Dr Michael objected that parts of the affidavit of Mr Wayte, including a large number of annexures, were inadmissible hearsay. I upheld that objection. That resulted in the hearing of the application being adjourned to enable the Attorney General to lead admissible evidence of the matters of which Mr Wayte had given hearsay evidence. At the resumed hearing of this matter on 9 February 2005, the applicant tendered a number of affidavits that contained direct and admissible evidence of matters of which Mr Wayte's affidavit of 2 April 2003 contained inadmissible hearsay. I subsequently received Mr Wayte's affidavit of 2 April 2003 into evidence as Exhibit 1 on the basis that I would disregard any hearsay material in the affidavit that was not otherwise established by admissible evidence.

12 The respondents tendered into evidence a large number of affidavits, most of which were sworn by Dr Michael. I received the affidavits subject to the objection of the applicant that insofar as the affidavits contain hearsay, the hearsay material was not to be taken as proof of the facts asserted.

13 In order to determine whether I should make any order it is necessary first to determine whether I am satisfied that each, or either, of the respondents has instituted or conducted vexatious proceedings or is likely to institute or conduct vexatious proceedings. If I am satisfied of those matters in relation to each or either of the respondents it will then be necessary to exercise my discretion whether to make either or both of the orders sought by the Attorney General in his originating motion. I will first consider whether or not either of the respondents has instituted or conducted vexatious proceedings or is likely to do so.

14 As I have said, the Attorney General relies, in part, upon the Tully Court litigation. The Tully Court litigation was described by Anderson J in the Full Court in Attorney-General v Michael & Anor (supra). I have considered for myself the affidavits filed in CIV 2079 of 1994 and the further affidavits filed in these proceedings that touch upon the Tully Court litigation considered by Wheeler J in CIV 2079 of 1994 and the Full Court on appeal. The following description of the Tully Court litigation is based on the judgment of Anderson J in the Full Court but sets out my findings in relation to those matters.

15 Dr and Mrs Michael lived at 8 Tully Court, Bull Creek. Their neighbours at 9 Tully Court were a Mr and Mrs Maughan and their son, Casey. Casey was in the habit of playing his car stereo when washing his car. Dr Michael objected to the noise and there were exchanges between Dr Michael and Casey. In late March 1997, Dr Michael commenced sending to Casey, at his place of work at the Hyatt Hotel in Perth, facsimile messages. These messages were received on the Hyatt Hotel facsimile machine. They were expressed in strong terms and included threats to involve the Hyatt in the affair. For example, the message sent on 24 March 1997 contained the following threat:

"If this behaviour does not change I shall be contacting those in charge of the Hyatt Hotel and informing them that if they employ such rude people I shall contact those companies with which I am associated and related to, to cancel all bookings with Hyatt and no longer deal with them."

16 Other facsimile messages threatened litigation, not only against Casey, but also against his landlord and his parents "to whom [he was] paying board". There were several such communications. On 5 May 1997, Dr Michael sent to Casey at the Hyatt Hotel a fax which said, amongst other things:

"We now have no option but to take the matter to the management of the Hyatt and to show these communications to all of our related companies and friends who are likely to be served by you or your department directly or indirectly. Further, we will be immediately requesting any of our visiting business friends from other States or overseas not to make any bookings with the Hyatt in case they are served by you."

17 Mr and Mrs Maughan were angered by Dr Michael's tactics and there were exchanges. Apparently, other neighbours in Tully Court became involved. Dr Michael then commenced the following District Court actions.

18 In this action, commenced on 24 April 1997, Dr Michael was plaintiff and Mr and Mrs Maughan and Casey were named as first defendants and the second defendant was named as "Della's Print". This latter entity was joined as a defendant on the basis that it was the owner of the house in which the Maughans and Casey lived. The endorsement of claim on the writ alleged that Mr and Mrs Maughan "caused fear to the plaintiff and his family" and "defamed the plaintiff before his wife and the second-named second defendant (sic)" and "stalked the plaintiff for the purpose of causing him bodily harm". It alleged against Mr Maughan and Casey that they "used the said (car) stereo to purposely annoy and irritate the plaintiff by playing very loudly". The claim against Della's Print was that it was "the owner of the property leased by the first defendants and failed to exercise duty of care to the plaintiff and his family". Included amongst the claims for relief was a claim that "the said stereo sound should not be heard by the plaintiff or his family inside his home". There was a claim against Della's Print for an injunction "for his tenant to refrain from making any nuisance noise", and a claim against all defendants for the sum of $85,000 "being the cost of erecting a special security fence with sound insulation, sound insulating the plaintiff's house between the building bricks and under the roof as well as the occasional hire of private security guards to protect his wife, children and himself". There was also a claim against Della's Print for damages "for failing to protect the plaintiff and his family". Finally, there was a claim for "a caveat against the property located at 9 Tully Court ... to prevent any sale of the property or part thereof by the second defendant to the first defendants".

19 On 16 May 1997, Dr Michael filed an amended indorsement of claim expanding the claims for relief and on 6 June 1997, he delivered a statement of claim. The statement of claim purports to plead a variety of causes of action headed "nuisance", "intimidation", "assault", "defamation", and "conspiracy".

20 The particulars of the nuisance were essentially concerned with the playing of the car stereo; but other noises such as lawnmower noises and the like were also said to have been made "for the purpose of depriving the plaintiff of his work concentration or comfort". The intimidation alleged includes an allegation that the Maughans "threatened the plaintiff that they would never say a nice word to him" as well as a threat by Mr Maughan to "physically assault the plaintiff". This, it is said, required Dr Michael to "hire security personnel" and to plan the erection of "a fence, electronic surveillance cameras and other devices to protect himself, his family and his property at great cost".

21 The assault which is alleged appears to relate to the occasion when Mr and Mrs Maughan remonstrated with Dr Michael about one of the facsimile messages sent to Casey at the Hyatt. In the statement of claim, it is alleged that Mr Maughan "threatened the plaintiff by raising his arm with a clenched fist ..." and "when the plaintiff quickly entered his house and closed the screen door, the same defendant banged hard and loudly on the door with his closed fist". There is also an allegation that Mr Maughan:

"Wrongfully and with the intent to injure the plaintiff and his son moved at the plaintiff's driveway within the meaning of the stalking provisions of the Criminal Code as amended in November 1996, wrongfully assaulting the plaintiff, who was returning home by car with his son, by holding some shiny object in his hand and moving towards the plaintiff in a manner causing the plaintiff and his son to fear a physical attack upon themselves."

22 The defamation is said to be constituted by an allegation made by Mr Maughan in front of Mrs Maughan and Mrs Michael and Dr Michael's children: "You are a coward ... " and "You are a poor excuse of a man". This Dr Michael took to be an imputation of sexual inadequacy. The conspiracy is said to be the conspiracy to do all of the above things and also to damage Dr Michael by circulating within the neighbourhood one of the facsimile messages he had sent to Casey at the Hyatt Hotel and making disparaging remarks about Dr Michael within the neighbourhood.

23 On 13 June 1997, Dr Michael applied by summons for interim injunctions against the Maughans. The application came before Viol DCJ. The Maughans engaged solicitors to appear for them and the application was opposed on several grounds, including that the District Court had no jurisdiction to entertain an action seeking mainly equitable relief. Viol DCJ decided that the principal relief claimed was equitable relief in the form of injunctions, all other relief being ancillary to that relief. He therefore concluded that the District Court had no jurisdiction to entertain the action and he dismissed the application for interlocutory orders. In so doing, however, he said that he was not satisfied that the circumstances warranted the grant of interlocutory relief, even if he had the jurisdiction to do so.

24 There was then an application on 5 September 1997 by the Maughans to strike out parts of the statement of claim. This was allowed in part, insofar as the plaintiff's claim of nuisance, and for damages for slander and intimidation were struck out. Also, the plaintiff's allegations of stalking were struck out. The action does not seem to have proceeded beyond this point.

25 In the proceedings before the Full Court, Dr Michael said that he had asked the District Court to stay the action pending the outcome of the Maughans' application. Dr Michael also stated that he had since tried to "settle" the matter with the Maughans, but that his attempts to do so had been unsuccessful.

26 Also living in Tully Court, at that time were, at number 14, Mr and Mrs Payne, and at number 3 Mr and Mrs Potger. These families came to know of the dispute between Dr Michael and the Maughans and of the subsequent legal action in which Dr Michael had sued the Maughans, their son and landlord.

27 On 4 May 1997, Mr Payne planted a small white cross on his front lawn on which were the words, "In memory of peace and integrity in Tully Court - lost 24 March 1997". On 10 May 1997, Mr Potger placed a similar cross, similarly inscribed, on his front lawn. It would appear that Dr Michael saw these crosses and removed them. Over the next couple of days, he attempted to confront Mr Payne, by knocking on his front door. Mr Payne called the police and a constable was present on the next occasion that Dr Michael came to the Payne household. On that occasion, Dr Michael served Mr Payne with a copy of a writ of summons issued out of the District Court on 12 May 1997. In this action, both the Paynes and the Potgers were named as defendants.

28 The evidence is that, on 10 May 1997, Dr Michael approached Mrs Payne and with reference to the cross which they had erected on their lawn he told her, "I can sue you for that". In an affidavit sworn in CIV 2079 of 1994, Mr Potger deposes that Dr Michael told Mrs Potger that he was an "officer of the court" and that he could enter their property at any time to "remove evidence". That evidence is disputed by Dr Michael. However, on Dr Michael's own evidence, it was he who entered both properties and removed the crosses. That admission is made in the letter written by Dr Michael on 12 May 1997 which is annexure RKP1 to the affidavit of Mr Potger, sworn 3 September 1997 in CIV 2079 of 1994.

29 During the evening of 12 May 1997, Dr Michael personally served Mr Potger with the writ issued against the Potgers and the Paynes. Mr Potger deposes in his affidavit that he told Dr Michael that he and other residents of the street thought Dr Michael was "crazy" for adopting that course of action, given the trivial nature of the dispute. He also deposes to the fact that Dr Michael openly recorded their conversation with a dictaphone and again claimed that he was an "officer of the court" and accused Mr Potger of threatening or assaulting him by continuing to question his actions. Both the Paynes and the Potgers instructed solicitors.

30 No statement of claim was served with the writ. The indorsement of claim on the writ comprises two paragraphs as follows:

"1. On or about May 1997 the defendants wrongfully and maliciously conspired and combined amongst themselves to injure the plaintiff.

2. On or about May 1997 the defendants falsely and maliciously spoke and published of and concerning the plaintiff to neighbours in locations in Tully Court and Darley Circle in the suburb of Bull Creek defamatory words on a public sign placed in their front yards."

31 It would appear from subsequent pleadings that the conspiracy comprised the agreement between the defendants to erect the white crosses on their respective lawns, inscribed in the way that they were and the defamatory words complained of were the words comprising the inscription on the crosses.

32 In a statement of claim filed on 2 July 1997, Dr Michael pleaded that the words on the sign meant and were understood to mean a number of meanings. Anderson J found, and I respectfully agree that the inscription on the crosses could not possibly mean any of the imputations pleaded. The pleading seems to be referring to words spoken on other occasions, but not sued upon. The pleading of the alleged conspiracy is very difficult to understand.

33 Anderson J held, and I respectfully agree, that, Dr Michael's conduct in respect of the Tully Court dispute shows that he was quite prepared to commence legal proceedings making the most serious and disturbing allegations against people in a form not in accordance with the rules of pleading and on the basis of fundamental misconceptions as regards legal doctrine.

34 On 9 June 1997, the Paynes, through their solicitors, applied for summary judgment and the application and affidavits in support were served personally on Dr Michael at his home. On 17 June 1997, Dr Michael filed an application seeking an order that the service of the documents on him was defective. The application was expressed to be made "pursuant to order 72" and the title to the application was "chambers summons to compel defendants to serve properly".

35 It is not clear from the material just what Dr Michael's complaint was with respect to service, but underlying the application appears to be the misconception that personal service of interlocutory summonses is not permitted except by order of the court.

36 Exhibited to Dr Michael's affidavit is a copy of a letter he wrote to the Paynes and the Potgers on 12 May 1997. The concluding paragraph of that letter is in the following terms:

"When serving any document on me, you must remind your counsel that unless documents are served according to the Service and Execution of Process (Cth) Act (1901) or its equivalent in Western Australia (order 72), the service will not be accepted unless there is a court order for substitution of service."

37 The confusion involved in that statement is obvious. An order for substituted service will only be made where personal service is impracticable. In this case, not only was personal service not impracticable but personal service was effected.

38 The two applications, that is, the Paynes' application for summary judgment and Dr Michael's application in relation to the service of the documents came before Registrar Harman in the District Court on 20 June 1997. Dr Michael's application in relation to service was dismissed with costs and directions were made for the further hearing of the summary judgment application.

39 On 25 June 1997, Dr Michael lodged an appeal against the Registrar's decision on his application in relation to service. The primary grounds appear to have something to do with bias on the part of the Registrar. It appears that Registrar Harman had disqualified himself in 1992 from hearing a matter involving Dr Michael and Dr Michael considered that Registrar Harman should therefore be disqualified from dealing with his application in this matter in respect to Dr Michael's complaints about the adequacy of service of the summary judgment application. It appears that some such submission was made to Registrar Harman and Registrar Harman agreed to disqualify himself from hearing the merits of the summary judgment application, but did not agree to disqualify himself from dealing with Dr Michael's wholly misconceived application in respect to service of the summary judgment application upon him.

40 Anderson J was of the opinion, and I respectfully agree, that there could be no possible complaint about that approach. It is not at all easy to understand the basis of Dr Michael's complaint about the matter, as expressed in the notice of appeal. It is not clear what has become of the appeal. It appears not to have been proceeded with.

41 Shortly after Dr Michael's statement of claim was delivered, the Paynes' solicitors applied to strike it out. Dr Michael filed some affidavits and the Paynes' solicitors objected to most of the contents of each affidavit. There were submissions and counter-submissions in respect to that. On 18 July 1997, Dr Michael filed a chamber summons entitled:

"Chamber summons to commit Mr R C Payne and Mrs S D Payne for contempt of the court."

42 The basis upon which these contempt proceedings were attempted to be brought was said to be that two paragraphs in an affidavit sworn by the Paynes on 6 June 1997 "be declared false and known to be false before, during and after the said defendants swore the said affidavit".

43 Assuming, for the sake of argument, that the Paynes' affidavit was false, that is not a contempt of court. It could be perjury and it may even be an actionable wrong, but the courts have never treated perjury either in affidavits or in oral testimony as a punishable contempt. The application does not seem to have been proceeded with; however, it appears that the action remains on foot.

44 An indication of what can fairly be described as an unusual state of mind in regard to Dr Michael's general legal rights is also provided by other out of court conduct. There was, of course, the highly provocative and reprehensible tactic on the part of Dr Michael in setting out to damage Casey Maughan in his employment by sending open facsimile messages to him at his place of employment in which threats were made to the effect that Dr Michael would attempt to turn business away from the employer if the employer continued to employ Casey Maughan.

45 On 30 May 1997, Dr Michael wrote a letter to a Mr Langoulant. He had seen Mr Langoulant doing what he described in his letter as "holding and discussing documents served on Messrs Potger and Payne in front of number 5 Darley Circle". The purpose of the letter was to threaten Mr Langoulant with legal proceedings. The expressed grounds for the threatened proceedings were that "... it is illegal for non-parties to an action to intimidate or gossip about parties, discuss or even sight documents related to a District or Supreme Court action". In the letter, Dr Michael wrote:

"Further, I am entitled to know whether or not you will be witnessing in any of the current proceedings and it is the rules of the court that if you are, I must interview you and discuss any evidence with you."

46 This, of course, is a complete misrepresentation of the effect of the rules of court. There is no such rule.

"If there is evidence of any further activities which I believe to be intimidating, I will have no option but to issue an injunctive action against you."

48 That can only be understood to be a threat that, should Mr Langoulant discuss Dr Michael's actions with any of the Tully Court defendants, that conduct would be regarded as "intimidating" and actionable at the suit of Dr Michael.

49 On the same date, Dr Michael wrote a letter in almost identical terms to a Mr and Mrs Allan Pride, who were neighbours of Mr Langoulant and the Potgers. Before writing the letter to Mr and Mrs Pride, there is evidence that Dr Michael went to the Prides' home at 5 Darley Circle, Bull Creek, and confronted Mrs Pride and demanded that she answer certain questions as to her husband's description and that she answer questions about the discussions in which they had engaged with Mr Langoulant and Mr Potger earlier. This confrontation frightened and distressed Mrs Pride, who reported the matter to the police and later took the letter to the police. The Prides had a 16-year-old daughter who was also present and was also upset by the confrontation.

50 There is evidence that Dr Michael engaged in overt surveillance of residents of Tully Court and Darley Circle; he appeared to photograph them and when he engaged them in conversation or attempted to do so, he would produce a tape-recorder and overtly record the conversation. The reaction of these people to Dr Michael's conduct is best summarised by setting out the last paragraphs of a letter written by Mr Langoulant to the Attorney General, seeking his assistance in the matter. Mr Langoulant's letter to the Attorney General concludes with the following paragraphs:

"I know there are many other incidents involving other people in our street and I know that similar actions, affidavits and reports have been made to the local Police who have, I might add, been very sympathetic and supportive over these abuses of the legal system and the stress it is causing to everyone in our street - a street which has been up to now a lovely neighbourhood in which my Wife and I have enjoyed our retirement to date.

I have no legal qualification except that knowledge I have gained as a Justice of the Peace for 20 years and I believe we as individuals could bring legal proceedings against Dr Michael for some of the allegations he has made and his invasive actions against us. Unfortunately Dr Michael, who is not a registered legal practitioner, acts for and represents himself in all legal matters and so does not incur the costs of legal representation - but in my case I have no avenue for redress because I cannot afford legal assistance which could be a big financial burden on my Wife and me.

Mr Minister, is there any way this situation can be resolved?"

51 In CIV 2079 of 1994, Wheeler J found that a number of the actions instituted by the respondents were relevantly vexatious. However, neither her Honour nor the Full Court were satisfied that the criteria for the making of an order under the 1930 Act had been met. Their Honours were not satisfied that the respondents "habitually and persistently" instituted or commenced vexatious proceedings as required by s 3 of the 1930 Act.

52 Counsel for the Attorney General submits that it is open to the Court in this application to find that any of the proceedings considered by Wheeler J in CIV 2079 of 1994 are vexatious proceedings within the meaning of s 3 of the Act and may found an order made under s 4 of the Act. I accept that submission. Section 4 of the Act refers to vexatious proceedings instituted or conducted before or after the commencement of the Act. The fact that in CIV 2079 of 1994 Wheeler J found that Dr and Mrs Michael had not habitually and persistently commenced vexatious proceedings does not preclude the Court from now finding any of the proceedings considered by her Honour in CIV 2079 of 1994 are vexatious proceedings as defined by s 3 of the Act.

53 In Attorney General v Michael (supra) Anderson J found that District Court action 1388 of 1997 was a vexatious proceeding as that term was defined in the 1930 Act. His Honour said:

"Whilst it is not possible to say that the claim of nuisance in respect of the loud playing of music is 'utterly hopeless', the allegations as to that, and the relief sought in respect of it, are so deeply buried in bizarre allegations and untenable claims for relief that the court ought to be able to say, as a matter of judgment, that it is a vexatious proceeding within the meaning of the section."

54 I have considered District Court action 1388 of 1997 for myself. I find that the action was instituted without reasonable ground. In determining whether the proceedings were instituted without reasonable ground it is necessary to have regard to the whole of the claim brought by the plaintiff. A proceeding is not saved from being instituted without reasonable ground merely because 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. Taken as a whole, the claims made by Dr Michael were made without reasonable ground. I find that in instituting and conducting District Court action 1388 of 1997, Dr Michael instituted and conducted a vexatious proceeding. Dr Michael has not demonstrated that there was sufficient evidence in support of his allegations to justify the extensive and serious allegations made in the action.

55 I find that District Court action CIV 1600 of 1997 was instituted by Dr Michael without reasonable ground. So far as the claim in defamation is concerned, the publication complained of could not give rise to the imputations alleged. Of course, a defamation action is not instituted without reasonable ground merely because a court concludes that the pleaded imputations are not capable of arising from the matter published. Further, a proceeding is not relevantly made without reasonable ground merely because of errors in pleading and form, particularly where the litigant is self-represented. It is a matter of degree and judgment and depends upon all of the circumstances of the case. In this case, the defamation claim was based upon words on the white crosses. That publication alone could not possibly give rise to the alleged imputations. The imputations could only arise from conduct and publications not referred to at all in the writ. So far as the conspiracy claim is concerned, I am of the opinion that that claim was made without reasonable ground. It is a serious matter to allege a conspiracy. The statement of claim pleads what are described as overt facts in furtherance of the conspiracy. The overt facts are in many cases conclusions based upon facts not stated. The statement of claim does not disclose a reasonable basis for making such serious charges.

56 Furthermore, interlocutory applications brought by Dr Michael in the course of this action were made without reasonable ground. The application seeking an order that the service of documents in connection with the application for summary judgment was defective was made without reasonable ground. The application was misconceived. It had no legal basis. Further, Dr Michael had actually been served with the documents and no purpose was served by the application other than to annoy the respondents, incur costs and waste the time of all concerned, including the Court. After the Registrar dismissed Dr Michael's application, Dr Michael appealed against that decision. The appeal was misconceived. There was no factual or legal basis for it. It was brought without reasonable ground. As I have said Dr Michael subsequently brought an application for contempt against Mr and Mrs Payne. That application was misconceived. It was brought without reasonable ground.

Proceedings Subsequent to the Full Court Decision

57 The Attorney General submits that subsequent to the judgment of the Full Court in [1999] WASCA 181, the respondents have instituted or conducted a number of proceedings that are vexatious proceedings as defined in the Act. The applicant further submits that it is likely that the respondents will institute or conduct vexatious proceedings. In support of the applicant's submissions counsel points to a number of proceedings. I will start by considering a number of private prosecutions brought by the respondents against a number of different people.

58 In November and December 2000 police officers, Senior Sergeant Phillip Gors and Senior Constable Peter Reginald Nunn conducted enquiries into incidents involving Dr Michael and two of his neighbours, William Robert Maughan and Richard Kelvin Potger. As a result of those enquiries the police considered that there was sufficient evidence to prefer charges against Dr Michael in relation to an assault on Mr Potger on 15 November 2000, for which Dr Michael was convicted and a spent conviction recorded on 11 January 2002, and an alleged assault on Mr Maughan on 3 December 2000. The charges in relation to the alleged assault on Mr Maughan are still to be determined by the courts.

59 Subsequent to those charges being preferred by the police, Dr Michael brought a number of private prosecutions against the police officers involved in the investigation and against Mr Maughan and Mr Potger. Dr Michael issued complaints against:

(a) Senior Sergeant Gors under s 134 of the Criminal Code alleging that on 7 February 2001 he conspired to bring a false accusation (PE 15003/01 and duplicate complaint PE 15011/01);

(b) Senior Constable Nunn under s 134 of the Criminal Code alleging that on 7 February 2001 he conspired to bring a false accusation (PE 15004/01 and duplicate complaint PE 15010/01);

(c) Senior Constable Nunn under s 133A of the Criminal Code alleging that on 7 February 2001 he made a false complaint (PE 15002/01 and duplicate complaint PE 15009/01);

(d) Mr Maughan under s 134 of the Criminal Code alleging that on 7 February 2001 he conspired to bring a false accusation (PE 15007/01);

(e) Mr Maughan under s 317(1) of the Criminal Code alleging that on 3 December 2000 he assaulted Dr Michael and caused him bodily harm (PE 15008/01);

(f) Mr Potger under s 134 of the Criminal Code alleging that on 16 November 2000 he conspired to bring a false accusation (PE 15006/01);

(g) Mr Potger under s 133A of the Criminal Code alleging that on 17 November 2000 he made a false complaint (PE 15005/01).

60 The first return date in the Court of Petty Sessions for each of those complaints was 26 March 2001. The matters came before Magistrate Burton. The police officers appeared through counsel from the Crown Solicitor's Office and Mr Maughan appeared in person. Mr Potger did not appear. Mr Potger had, however, written to Magistrate Burton on 21 March 2001 advising him of his inability to attend court. Mr Potger had also advised Magistrate Burton in that letter of his intention to defend the charges.

61 The complaints were adjourned sine die after Dr Michael made allegations of bias against Magistrate Burton and indicated that he wanted to appeal his Worship's ruling not to disqualify himself. Those six charges against the police officers remain adjourned sine die.

62 Mr Maughan advised Magistrate Burton on 26 March 2001 that he would be defending the two charges brought against him. A preliminary hearing of the charges brought by Dr Michael against Mr Maughan was heard on 26 April 2002 by Magistrate Cicchini.

63 Complaint 15007 alleged that Mr Maughan conspired to bring a false accusation against Dr Michael contrary to s 134 of the Criminal Code. What occurred before the Magistrate is referred to in the subsequent judgment of Roberts-Smith J to which I will shortly refer. His Worship noted the evidence before him had come from three witnesses, Dr Michael, Mrs Michael and Rev Dominic Spinosi. As to the conspiracy charge, the Magistrate noted that it had failed to particularise the nature of the alleged conspiracy. He said the only evidence about it was from the Rev Spinosi to the effect that Mr Maughan had fabricated allegations against Dr Michael with the assistance of or furthered by police. The police officers allegedly involved have not been identified. There was no evidence of conspiracy, nor going to any other party to it. His Worship held that there was no case to answer in respect of that charge and dismissed it. In my view that complaint was instituted by Dr Michael without reasonable ground. That is because Dr Michael was not able to advance any evidence in support of the allegation and did not even identify the police officers with whom Mr Maughan allegedly had conspired.

64 As to the assault charge Dr Michael's evidence was that he was attacked by Mr Maughan as a consequence of which he suffered a scratch to his arm. The Magistrate held the admissible evidence in support of the prosecution was sufficient to found a prima facie case and committed Mr Maughan for trial in the District Court.

65 Dr Michael then sought leave from the Supreme Court pursuant to s 720 of the Criminal Code to continue the prosecution in the District Court. The application was heard by Roberts-Smith J on 7 August 2002. The DPP informed his Honour that he did not intend to present an indictment. Roberts-Smith J relied upon the Magistrate's assessment that there was a prima facie case but refused to grant leave to present an information against Mr Maughan for the offence of assault occasioning bodily harm. His Honour considered that it would be inappropriate for Dr Michael to conduct a prosecution of his neighbour for such a serious offence before the District Court and Dr Michael would not suffer a grave injustice if leave was refused. Having regard to the finding of the Magistrate, relied upon by Roberts-Smith J, that there was a prima facie case I do not find that the prosecution was brought without reasonable ground.

66 The two charges brought against Mr Potger were dismissed by Magistrate Cullen at a preliminary hearing on 28 November 2001. There is not sufficient evidence before me to enable me to conclude that these proceedings were brought without reasonable ground or otherwise were vexatious proceedings.

67 On 10 April 2001 Dr Michael issued new private prosecutions against Senior Sergeant Gors (PE 19891/01), Senior Constable Nunn (PE 19890/01) and Mr Potger (PE 20177/01) for their non-attendance in court on 26 March 2001. Dr Michael alleged that the officers' and Mr Potger's failure to attend court on that occasion constituted a contempt of court under s 178 of the Criminal Code. The further complaint against Mr Potger was dismissed by Magistrate Cullen at the preliminary hearing on 28 November 2001.

68 On 10 April 2001 Dr Michael brought a private prosecution against First Class Constable Koelma under s 371(4) of the Criminal Code for allegedly fraudulently converting a video surveillance tape from Dr Michael (PE 19892/01). The video shows evidence of the incident relating to the alleged assault by Dr Michael on Mr Maughan and was seized by the police as evidence for the prosecution of the charges that were preferred against Mr Michael in relation to that incident. The first return date for the new complaints against Senior Sergeant Gors, Senior Constable Nunn and First Class Constable Koelma was 27 April 2001. Magistrate Burton dismissed all three charges as an abuse of process without allowing Dr Michael the opportunity to adduce evidence in support of the charges. Dr Michael appealed that decision in Supreme Court SJA 1063 of 2001. The respondent police officers conceded the appeal. All three complaints were then re-listed in the Court of Petty Sessions on 29 August 2001. Pleas of not guilty were entered and the matters were adjourned to an election date. On 14 February 2002 each of the charges was dismissed as an abuse of process when Dr Michael did not appear at a mention of the charges on that date. Counsel for the police officers had received a medical certificate from Dr Michael on the day before that mention of the charges stating that he was unwell but the certificate made no reference to an inability to appear in court nor was there any request for the mention to be adjourned to a later date.

69 In my view, each of the further complaints brought against Mr Potger, Senior Sergeant Gors, Senior Constable Nunn and First Class Constable Koelma were instituted without reasonable ground. There is no basis for alleging that a failure to attend court constitutes a contempt of court. There was no reasonable ground for the prosecution against First Class Constable Koelma for allegedly fraudulently converting a video surveillance tape. The tape was seized as evidence in relation to an alleged offence.

70 On 18 December 2001 Dr Michael brought Supreme Court application SJA 1188 of 2001 seeking leave to appeal the dismissal on 28 November 2001 of the three charges that he had brought against Mr Potger. That appeal was not pursued and on 24 July 2002 the Full Court granted Dr Michael leave to discontinue the matter.

71 I have considered the application for leave to appeal together with the affidavit of Dr Michael sworn 18 December 2001 in support of the application. In my view the application was instituted without reasonable ground.

72 On 4 February 2002 Dr Michael brought two private prosecutions against Mr Potger for alleged perjury under s 124 of the Criminal Code. One charge (PE 9285/02) alleged that Mr Potger had committed perjury in the Court of Petty Sessions in the course of the hearing of the criminal charge brought by the police against Dr Michael. The other charge (PE 9284/02) alleged that Mr Potger had committed perjury in Supreme Court CIV 2079 of 1994. The complaint alleging that Mr Potger committed perjury in Supreme Court CIV 2079 of 1994 refers to pars 6 and 7 of an affidavit sworn by Mr Potger on 3 September 1997 in support of the application in that matter. The paragraphs are as follows:

"6. On 4 May 1997 I noticed a small white cross inscribed with the words 'in memory of peace and integrity in Tully Court- lost 24 March 1997' on the front lawn of the Payne's residence.

7. After enquiring with the Paynes and being told that the purpose of the cross was to encourage Dr Michael and the Maughans to settle their differences without litigation, I put a similar cross on my front lawn on 10 May 1997."

73 The complaints were listed for hearing on 21 May 2002. Dr Michael failed to provide any witness statements prior to the hearing date and the matters were adjourned to a further hearing on 7 June 2002. Each complaint was struck out by Magistrate Woods on 7 June 2002.

74 There is no evidence to support the allegation of perjury, nor any evidence that Dr Michael at any time ever advanced any evidence in support of such an allegation. In my view the complaint was instituted without reasonable ground.

75 The next private prosecution concerns Colin Frank Morton, a 79-year-old pensioner and a parishioner of All Saints Church in Bull Creek. On 3 April 2002 there was an altercation between Dr Michael and Mr Morton at a parish council meeting. Mr Morton says that he responded to accusations made against him by Dr Michael by pushing Dr Michael who then hit Mr Morton in the face drawing blood. Dr Michael lodged a complaint with the police in relation to the altercation. After conducting enquiries the police did not lay any charges against Mr Morton. On 16 July 2002 Dr Michael brought a private prosecution against Mr Morton under s 317(1) of the Criminal Code (FR 66636/02). Dr Michael alleged that Mr Morton had unlawfully assaulted him and caused him bodily harm. Mr Morton entered a plea of not guilty to the charge and it was set down for hearing on 11 September 2002. At that hearing Dr Michael withdrew the complaint and the action was dismissed. Dr Michael provided a statement of material facts. The statement alleges that the altercation took place at a parish council meeting on 3 April 2002. Dr Michael announced that he was not attending the meeting because of the presence of Mr Morton who, Dr Michael alleged, had illegally embezzled funds from the parish of Bateman-Bull Creek. Dr Michael alleged that Mr Morton charged at him and hit him with a clenched fist in the upper right chest. In all the circumstances I do not conclude that the private prosecution was instituted without reasonable ground or was otherwise a vexatious proceeding.

76 On 3 December 2000 there was an altercation between Dr Michael and Mr Maughan. That led to the private prosecution brought by Dr Michael against Mr Maughan to which I have already referred. On 4 December 2000 each of Dr and Mrs Michael applied to the Perth Court of Petty Sessions (PE 2934/00 and PE 2935/00) for a violence restraining order against Mr Maughan. An interim order was granted in the absence of Mr Maughan in each application and served upon Mr Maughan. Mr Maughan then advised the clerk of the court that he objected to each interim order being made final and the matters were listed for a hearing on 25 January 2001. Both interim orders were cancelled at that final order hearing. I am unable to conclude on that material alone that either application was instituted without reasonable ground or is otherwise a vexatious proceeding.

77 On 16 July 2001 each of the respondents applied to the Perth Court of Petty Sessions (PE 1888/01 and PE 1889/01) for a violence restraining order against Mr Maughan. In the application Mrs Michael claimed that Mr Maughan continued "to behave erratically, staring, gesturing, prying into our yard, generally intimidating me by his presence, especially in view of his past actions". Both applications were dismissed with no interim order being made.

78 On 24 July 2001 each of the respondents applied to the Perth Court of Petty Sessions (PE 1898/01 and PE 1899/01) for a misconduct restraining order against Mr Maughan. Mr Maughan was summonsed to attend a hearing listed for those applications on 6 August 2001. Mr Maughan informed the Magistrate that he would be opposing the applications and a final hearing was set for 13 September 2001. On that day Dr Michael attended court and said that he and Mrs Michael did not realise that this was a final hearing and that they did not have their evidence or witnesses organised. A further final hearing date of 22 November 2001 was set. On or about 1 November 2001 the respondents informed the court of their intention to withdraw both applications. The respondents informed Mr Maughan of that fact by letter posted to Mr Maughan on 20 November 2001 and received by Mr Maughan on 21 November 2001.

79 I find that Dr Michael conducted these proceedings in a manner so as to harass or annoy, cause delay or detriment to Mr Maughan. I arrive at that conclusion because the respondents informed the Court of their intention to withdraw both applications on 1 November 2001 but did not inform Mr Maughan until the day before the scheduled hearing date.

80 On 13 September 2001 Mr Potger obtained a misconduct restraining order against Dr Michael in the Court of Petty Sessions (PE 819/01). Dr Michael lodged an appeal against that order in Supreme Court SJA 1154 of 2001. That appeal was dismissed by Hasluck J on 1 February 2002. On 14 March 2002 Dr Michael was granted leave by Hasluck J to appeal to the Full Court against the dismissal of his appeal in Supreme Court SJA 1154 of 2001. On 19 June 2002 Dr Michael discontinued his appeal to the Full Court. I conclude that those proceedings were instituted without reasonable cause.

81 On 24 May 2002 Dr Michael applied to the Court of Petty Sessions for a violence restraining order against Mr Morton (FR 4833/02). An interim order was granted in the absence of Mr Morton and served upon him. Mr Morton objected to the interim order being made final and the matter was listed for hearing on 31 December 2002. At that hearing Dr Michael withdrew his application and the interim order was cancelled. There is evidence before the Court that Mr Morton assaulted Dr Michael. I do not find that that proceeding was instituted without reasonable cause or was otherwise vexatious.

82 On 7 October 2002 Dr Michael applied to the Court of Petty Sessions for a misconduct restraining order against another neighbour, Patricia Lee Young (PE 2349/02). A restraining order summons was issued and served upon Mrs Young and required her to attend a hearing on 7 November 2002. On 22 October 2002 Mrs Young applied to the Court of Petty Sessions for a misconduct restraining order against each of the respondents (PE 2490/02 and PE 2491/02). Mrs Young opposed the application made by Dr Michael on 7 November 2002 and the matter was set down for a final hearing on 17 December 2002. On 14 November 2002 Dr Michael applied to the Court of Petty Sessions for another misconduct restraining order against Mrs Young (PE 2693/02). A restraining order summons was issued and served upon Mrs Young but required her to attend a hearing on 9 December 2002. Mrs Young opposed the application on that date and the matter was set down for a final hearing on 17 December 2002. That application, together with the applications in PE 2349/02, PE 2490/02 and PE 2491/02 were all dismissed on 23 December 2002 with all of the parties providing an undertaking not to provoke each other.

83 On 8 April 2002 Dr Michael applied to the Perth Court of Petty Sessions for a violence restraining order against Mr Maughan (PE 964/02). An interim order was not granted and Mr Maughan was summonsed to a hearing on 29 April 2002. The application was dismissed on 12 April 2002 at the request of Dr Michael.

84 A second application was made by Dr Michael on 8 April 2002 for a violence restraining order against Mr Maughan in Fremantle Court of Petty Sessions (FR 3411/02). The making of a final order was opposed by Mr Maughan and a hearing date was set for 30 April 2002. Owing to a mix up on that day Mr Maughan was put down as a non-appearance and a final order was made. When the mix up was brought to the Court's attention Mr Maughan was granted leave by Magistrate Wheeler on 9 May 2002 to oppose the final order by lodging an application to cancel the order. Mr Maughan's application to cancel the violence restraining order came on for hearing before Magistrate Michelides on 9 October 2002. Dr Michael did not appear in court on that day and the matter was adjourned to 17 October 2002. On 17 October there was a hearing before Magistrate Michelides which began sooner than advertised and notified to Dr Michael and in his absence. As a result Magistrate Michelides varied the violence restraining order against Mr Maughan. However, shortly afterwards, Dr Michael arrived at the court, explained that he was there to answer the matter and that circumstances had arisen which meant that he had not known about, or perhaps was not able to be present at the time when the application was first dealt with. In those circumstances Magistrate Michelides decided to recall the order which had been made, indicated that Dr Michael was entitled to be heard and directed that the contested application to vary the violence restraining order would be adjourned for hearing in April 2003. The result, therefore, on 17 October was that Mr Maughan failed to obtain any variation of the violence restraining order and Dr Michael succeeded in ensuring that he would be heard in opposition to Mr Maughan's application.

85 On 17 October 2002 Dr Michael instituted Supreme Court action SJA 1123 of 2002 in which he sought leave to appeal the decision made by Magistrate Michelides. The matter was heard by Heenan J on 18 November 2002 and his Honour refused leave to appeal. His Honour stated in his judgment that he did not see how Dr Michael had any grounds to complain that an order was made adjourning the hearing until April 2003 in circumstances where he wished to be heard in opposition to the application so there was nothing which occurred on 17 October 2002 before Magistrate Michelides from which Dr Michael had any reasonable prospect of success in an appeal. In his written and oral submissions Dr Michael asserted that the decision made by Magistrate Michelides on 9 October was a decision to admit and accept Mr Maughan's application to vary the restraining order and that that decision to admit and accept the application is an error of law because the application was made in actual and intended abuse of the process of the Court of Petty Sessions. Heenan J found that there was nothing on the face of the proceedings to indicate an abuse of the process of the court. Nevertheless, it was possible that an application to the court could have been inspired and pursued by some malicious motive or for some collateral purpose in a way which would render the proceedings an abuse of the processes of the court. There would be an opportunity for that to be considered when the hearing eventually commenced. In those circumstances his Honour considered that there was no basis upon which there was any reasonable prospects of success in any appeal and refused the application for leave to appeal. I have read Dr Michael's application for leave to appeal and the affidavit in support. In my view, the application for leave to appeal was brought without any reasonable ground.

86 On 6 September 2002 Dr Michael complained to the police that Mr Maughan had breached the violence restraining order granted in FR 3411/02. The police charged Mr Maughan with a breach of the restraining order. The charge was heard and dismissed in the Fremantle Court of Petty Sessions on 3 February 2003. On 4 February 2003 Dr Michael, despite his lack of standing, sent a fax to Mr Maughan's lawyer advising that he would be appealing the decision made by the Magistrate on 3 February 2003.

87 The hearing dates of 14 and 15 April 2003 set for Mr Maughan's application to cancel the violence restraining order made in FR 3411/02 and for Dr Michael's application to vary order were vacated on 1 April 2003 after Mr Maughan and Dr Michael came to an understanding concerning their respective applications. Mr Maughan withdrew his application to cancel the violence restraining order and Dr Michael's application to vary the order was adjourned sine die.

88 On 7 October 2002 Mrs Michael applied to the Court of Petty Sessions for a misconduct restraining order against Mr Maughan (PE 2348/02). Mr Maughan was summonsed to a hearing on 1 November 2002. He informed the Magistrate that he would be opposing the application. A final hearing was set for 6 December 2002. The application was subsequently dismissed on the basis that each party undertook not to provoke the other.

89 On 14 November 2002 Dr Michael applied to the Court of Petty Sessions for a further misconduct restraining order against Mr Maughan (PE 2694/02). At the time a violence restraining order was already in place. The application came before Magistrate Burton on 5 December 2002. The Magistrate dismissed the application as being frivolous and vexatious. In my view the application was brought without reasonable ground and was hence a vexatious proceeding.

90 On 27 November 2002 Dr Michael applied to the Court of Petty Sessions for a violence restraining order against Mrs Maughan for allegedly inciting Mr Maughan to intimidate Dr Michael on 7 November 2002 (PE 2821/02). Mrs Maughan says that she was not with her husband in court on 7 November 2002. She agreed to a proposal put to the Magistrate by Dr Michael at the hearing of the application on 18 December 2002 that it be dismissed with each party giving an undertaking that they would not behave in a manner which would provoke the other. I make no finding whether or not the application was a vexatious proceeding.

91 One of the charges brought against Dr Michael was that on 3 December 2000 he assaulted and caused bodily harm to Mr Maughan. The charge proceeded to a preliminary hearing before Magistrate Musk on 19 April 2002. After hearing the prosecution the Magistrate held that there was a prima facie case and committed Dr Michael for trial in the District Court. The matter became District Court indictment 02/971.

92 Dr Michael instituted two proceedings in the Supreme Court against the decision made by Magistrate Musk on 19 April 2002. In Supreme Court SJA 1075 of 2002 Dr Michael sought to appeal against the order of Magistrate Musk. The DPP conceded the appeal and the charge was remitted to the Court of Petty Sessions.

93 In Supreme Court CIV 1725 of 2002 Dr Michael sought writs of mandamus and certiorari in an attempt to compel the DPP to file a nolle prosequi on the charge. Supreme Court CIV 1725 of 2002 came before Pullin J on 30 August 2002. Justice Pullin made orders by consent that had the effect of quashing the decision of the Magistrate.

94 On 11 July 2002 Dr Michael filed a notice of motion in District Court indictment 02/971 seeking to bring contempt of court proceedings and perjury charges against Mr Maughan in relation to testimony given by Mr Maughan at the preliminary hearing on 19 April 2002. When the matter came before Kennedy DCJ on 2 September 2002 her Honour informed Dr Michael that the matter should not have been before the court in view of the remittal by the Supreme Court in SJA 1075 of 2002 of charge FR 2417/01 to the Court of Petty Sessions. The notice of motion was brought without reasonable ground. It was a vexatious proceeding.

95 On 11 October 2002 Dr Michael filed two applications in the Court of Petty Sessions, one in FR 2415/01 and the other in FR 2417/01, seeking orders that each prosecution be dismissed.

96 On 11 October 2002 Dr Michael filed a further application in the Court of Petty Sessions (FR 2415/01) seeking orders that Mr Maughan was guilty of committing perjury during the committal hearing on 19 April 2002 and that Mr Maughan be sentenced accordingly.

97 On 16 October 2002 Dr Michael filed an amended application in Supreme Court CIV 1725 of 2002 seeking to vacate direction and hearing dates listed for Court of Petty Sessions FR 2415/01 and FR 2417/01 by Magistrate Musk on 14 October 2002, and orders that those charges be stayed until the determination in Supreme Court CIV 1725 of 2002. The amended application that Dr Michael filed in Supreme Court CIV 1725 of 2002 was heard by Heenan J on 13 November 2002. His Honour refused the applications for orders nisi for writs of mandamus and certiorari and also refused an application which was maintained by oral submissions by Dr Michael for a stay of the committal proceedings for a summary prosecution pending the outcome of the applications in the Court of Petty Sessions. Those applications were brought without reasonable ground and are vexatious proceedings.

98 On 12 December 2001, Dr Michael commenced District Court CIV 3315 of 2001 against Mrs Maughan, Brian Richard Wishart and Mr Wishart's two children, Gregory Richard Wishart (aged 13) and Jennifer Alaine Wishart (aged 10). Mr Wishart was at the time a neighbour of the respondents. Dr Michael issued those proceedings as a result of applications that Mrs Maughan and Mr Wishart had made in the Court of Petty Sessions each seeking a violence restraining order against Dr Michael. Mr Wishart had also sought misconduct restraining orders for his two children. An interim restraining order was granted in the absence of Dr Michael in each application. Dr Michael successfully opposed the making of a final order in each matter. Mr Wishart's applications were dismissed after a hearing on 30 October 2001 at which Mrs Maughan gave evidence and was cross-examined by Dr Michael. Mrs Maughan's application was dismissed on 31 October 2001 after she became too ill to attend court on that date as a result of the stress and anxiety the matter was causing her and her solicitor advised the Magistrate that the application would not be pursued.

99 In District Court CIV 3315 of 2001 Dr Michael has alleged that Mrs Maughan and Mr Wishart maliciously sought the restraining orders causing him suffering and damages and that Mrs Maughan defamed him in the course of a telephone conversation she had with the City of Melville security on 14 August 2001.

100 The Attorney has put into evidence copies of letters that have been sent to the following people by Dr Michael in which he has threatened litigation or further litigation against that person:

101 I have read each of those letters. In those letters Dr Michael threatens to commence proceedings against various persons without reasonable ground in that there is no proper factual or legal basis for the threatened proceedings. I am satisfied that it is likely that Dr Michael will institute or conduct vexatious proceedings in the future if an order is not made under s 4 of the Act to restrict his ability to do so.

102 I shall briefly set out the history of the counterclaim.

103 On 9 April 2004 Justice Barker gave orders that the hearing of the originating motion be heard before a Judge in Court on a day to be fixed. His Honour also made orders for the filing of affidavits and giving leave for the parties to apply for further directions, including directions as to leave to cross-examine deponents.

104 On 18 August 2003 the solicitors acting for the Attorney General sent a letter to the Court's listing officer requesting that the originating motion be listed for hearing. Dr Michael objected to the listing of the matter, on the basis that he had on foot a freedom of information application, which was to be followed by "better particulars, inspection, discovery and interrogatories". He further advised that a counterclaim would soon be filed and served on the Crown Solicitor. On 29 August he filed what is in form a counterclaim. The counterclaim was not said to be a counterclaim against the Attorney General, the applicant in the Vexatious Proceedings Restriction Act matter. Rather, the counterclaim was against the Crown Solicitor for Western Australia and 10 other defendants and groups of defendants. I shall come to the detail of the counterclaim in a moment.

105 With the parties unable to agree on whether the originating summons should be listed in accordance with the directions of Justice Barker, the listing officer referred the matter to a Judge in chambers for directions. The matter was listed before E M Heenan J for 30 September. On 24 September there was filed and served by solicitors for the Attorney General a minute of proposed orders. It appears that the solicitors for the Attorney General were seeking to strike out or dismiss the counterclaim on the basis that it was irregular and an abuse of process. Dr Michael sought directions that the originating motion should not be listed for trial until pleadings in the counterclaim had been exchanged and discovery and interrogatories in the counterclaim completed.

106 E M Heenan J treated the matter as a general directions hearing and made orders in the following terms; that the counterclaim be severed from the originating summons and stayed, subject to liberty to apply until hearing and determination of the originating motion; that the applicant could apply for continuation of the counterclaim as a separate action and seek directions in that regard; that neither party was to interrogate without leave of a Judge; that there was to be no discovery without leave of the court; that there was to be liberty to apply within 14 days for leave to seek discovery and to interrogate, and for further directions; and otherwise it was ordered that either party was to be at liberty to enter the originating motion for hearing at the expiration of 42 days from the order.

107 In order to understand the orders made by E M Heenan J, it is necessary to examine the counterclaim in the context of the matrix of the long running disputes between the parties to it, the generality of which I have addressed throughout these reasons.

108 In essence, the counterclaim appears to allege a conspiracy by the defendants to it, maliciously and without reasonable cause to bring about the institution of the proceedings brought pursuant to the Act. The various defendants are in the main part the neighbours of Dr Michael who had become embroiled in the long running dispute with him but also included other persons, such as the police officers, who had been dragged into that long running dispute.

109 The flavour of the counterclaims can perhaps best be seen by looking to the indorsement against one of the defendants, Mr Wishart. It is alleged not only that he conspired with other defendants to bring the original action, but also that he gave misleading information to the Crown Solicitor, that he defamed Dr Michael, that he contacted Wesley College to the detriment of Dr Michael and his son and defamed both of them, that he "spoke ill of" Dr Michael to the Archbishop of Perth, that he committed perjury in an affidavit, that he made a false report to the police and that he "obstacled" Dr Michael in September 1999.

110 E M Heenan J reached the conclusion that the joinder of the causes of action relied upon in the alleged counterclaim, and the naming of the 11 defendants to that counterclaim, would embarrass or delay the determination of the principal application initiated under the Act.

111 Dr Michael applied for leave to appeal the orders of E M Heenan J. The Full Court in Michael v The Crown Solicitor [2004] WASCA 45, per Steytler and Wheeler JJ, stated that it was not easy to discern the precise nature of the complaint made about the orders in question, but went on to identify a number of strands. First, that the applicant complained that E M Heenan J had prejudged the question of whether he was a vexatious litigant by making orders against him. Second that he had been "ambushed" before E M Heenan J when counsel for the Attorney General sought the orders which he did at the hearing. Further, that permitting the proceeding commenced under the Act, to be entered for hearing and to be heard, would have the effect of prejudicing the applicant in his defence of criminal proceedings on foot against him. Finally, that the applicant was firmly of the view that his counterclaim was inextricably intertwined with the vexatious proceedings application; and that the matter therefore could only be determined at the same time.

112 The Full Court found that E M Heenan J had been entirely correct in the conclusion which he had reached that the purported counterclaims were likely to unduly embarrass and delay the hearing of the vexatious proceedings application. The Full Court found that Dr Michael's submissions to the contrary did not appear to be reasonably arguable. The Full Court gave the following reasons.

113 Firstly that the claims made in the various counterclaims were not in the main intelligible legal claims. To the extent that the claims were on their face legally intelligible - for example, the claims of defamation - the ordinary course of action would have suggested that there would be a very long delay before the counterclaims could be ready for trial. Further, for the vast majority of claims made in the counterclaims, there appeared to be no connection on their face between those claims and any issue likely to arise in the vexatious proceedings application.

114 Finally, although the factors to which it had already referred amply justified the conclusion reached by E M Heenan J, the Full Court also noted that there did not appear to be any provision in the rules for the making of a counterclaim in a proceeding commenced by way of originating motion. Both s 4 of the Supreme Court Act 1935 (WA) and O 4 of the Rules of the Supreme Court contemplate that an "action" is a matter commenced by writ, while O 18 r 2 and r 3 appear to permit counterclaims only in respect of "actions".

115 The Full Court dismissed the application for leave to appeal against the orders of E M Heenan J. Subsequently, on 30 March 2004 the hearing of the originating motion commenced before me and was adjourned part heard.

116 On 10 June 2004 Dr Michael filed a chamber summons in which he described himself as the plaintiff by counterclaim, and in which he sought the following orders:

"(1) The stay on the counterclaim be lifted during the hearing of this application.

(2) The application of 25 September 2003 be restored and the Applicant (Plaintiff by Counterclaim) herein is granted default judgment for the counterclaim prior to 30 September 2003.

(3) The counterclaim comes to an end and completion."

117 The chamber summons was heard by me on 3 February 2005. The hearing of the originating motion had by that stage been set down to resume on 9 February 2005.

118 In his submissions Dr Michael submitted that the background and basis for the application was set out in his affidavit sworn 2 February 2005. In that affidavit Dr Michael explains as follows; on 25 September 2003 he entered a default judgment against all defendants by counterclaim in that he delivered to the registry of this Court a form or forms of default judgment to be entered against the defendants.

119 On or about 6 November 2003 Dr Michael received his application returned to him with the following note:

"The judgments were referred to the Acting Principal Registrar who directed that they not be accepted for filing because [of] the order of 30 September 2003."

120 As I have indicated, the sequence of orders sought by Dr Michael in the chamber summons was first that the stay on the counterclaim be lifted, and second that the application of 25 September 2003 be restored and that the plaintiff by counterclaim, Dr Michael, be granted default judgment for the counterclaim prior to 30 September 2003. In his oral submissions Dr Michael submitted that the second order sought in that chamber summons ought to be considered first in that his primary submission was that the application made on 25 September 2003, that is, the lodging of the default judgment forms, was rejected by the Registrar wrongfully and that the Court should correct that error by ordering that default judgment be entered.

121 The plaintiff submitted that that should be done pursuant to O 21 r 10. That rule provides as follows:

"Clerical mistakes in judgments or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court on motion or summons without an appeal."

122 That rule could not apply to the circumstances to which the plaintiff sought to apply it. Order 21 r 10 applies to orders which have been made and permits the Court to correct the wording of the order even where that results in a substantive change to the order made. Order 21 r 10 has no application to a circumstance where forms have been lodged with the central office and the Registrar has declined to take any action in response to the lodging of those forms. The failure or refusal of the Registrar in such circumstances to take any action in response to the lodging of the forms is not the making of an order within the meaning of O 21 r 10. That is to be seen from both the wording and the scheme of the rule. The rule refers to clerical mistakes in judgments or orders or errors arising therein and could have no application to a case such as this where the Registrar has declined to enter a judgment. The action or inaction of the Registrar complained of was a ministerial act to which O 21 r 10 has no application.

123 In any event, I was not persuaded that the Registrar was relevantly wrong in taking the action which he did and I came to that view for two reasons. The first is that, on the face of it, the counterclaim issued by the plaintiff was irregular and not in accordance with the Rules of the Court, and I refer again to what was said by their Honours Steytler and Wheeler JJ in the Full Court in Michael v Crown Solicitor (supra) at [12] to which I have referred earlier.

124 Secondly, O 13 of the Rules which deals with default of appearances to the writ and the entering of judgment as a result of a default of appearance on the face of the order applies only to proceedings commenced by writ. It was on that basis that the registry declined to accept the forms and enter judgment in default. That is not to say that default judgment cannot be entered in relation to a counterclaim. However, as I have indicated, the circumstances in this case were different in that the counterclaim was not issued in response to a writ but in response to a notice of motion and is on the face of it irregular.

125 That, of course, does not mean that the counterclaim is a nullity and cannot be proceeded with. Order 2 r 1 of the Rules deals with the effect of non-compliance with the rules and in general provides that notwithstanding that a step is taken which is not in accordance with the rules and results in an irregularity, that does not necessarily result in a nullity. Nonetheless, in my view, there was an irregularity in the manner in which the counterclaim was sought to be pursued.

126 For those reasons I was not persuaded that the Registrar was in error in not entering default judgment against the defendants.

127 Furthermore, even if this Court did have power to subsequently enter default judgment against the defendants, it would, in my view, have been unjust to do so. The Court may exercise its discretion not to enter a default judgment if it becomes apparent to the Court that some injustice may result from such a course.

128 In this case a stay of the proceedings was ordered on 30 September 2003. Prior to the stay having been granted, the Attorney General sought to strike out or dismiss the counterclaim on the basis that it was irregular and an abuse of process. His Honour Heenan J declined to take that step and instead stayed the proceedings. As a result, after 30 September 2003 the defendants were entitled to rely upon the fact that the proceedings were stayed and it was not necessary for them to take any step in the proceedings until such time as that stay was lifted.

129 Furthermore, the defendants other than the first defendant had not been served with notice of this application and I would not in any event have made any orders in relation to those defendants.

130 I turn to the application that the stay on the counterclaim be lifted. The basis upon which the plaintiff, Dr Michael, advanced the matter was, as I have said, in reliance upon the default judgments that were sought to be effected in September 2003. For the reasons given I did not make the orders sought to grant default judgment. In my view that largely undermines the basis on which the plaintiff, Dr Michael, sought that the stay be lifted and indeed it appears to me that Dr Michael sought the stay to be lifted primarily if not exclusively for the purpose of permitting the default judgments to be entered. In any event, grounds were not made out for the stay to be lifted.

131 The order made by Heenan J on 30 September 2003 was, amongst other things, that the counterclaim be stayed until the hearing and determination of the originating motion. As I have said, the plaintiff, Dr Michael, appealed from that order to the Full Court. The Full Court dismissed that appeal. The orders made by Heenan J on 30 September further provided that the plaintiff, Dr Michael, could apply for continuation of the counterclaim as a separate action and seek directions in that regard. It appears that the effect of his Honour's orders was that the plaintiff, Dr Michael, might apply for the stay to be lifted and for directions to be given for the prosecution of the counterclaim as a separate proceeding.

132 There was no evidence or material before the court as to any change of circumstances that had occurred since the order made by Heenan J or since the dismissal of Dr Michael's appeal to the Full Court which would have justified the lifting of the stay. Furthermore, the plaintiff had not sought the lifting of the stay together with directions for the prosecution of the counterclaim. If such directions were sought they ought to have included directions for the regularising of the proceedings, and as to how the matter should have proceeded from then on. That had not been sought and this was inconsistent with the primary thrust of the submissions made by Dr Michael that the counterclaim should come to an end. Indeed that was the order sought in the chamber summons at par 3.

133 Finally, as I indicated, the originating motion was at that stage part heard and the further hearing of the originating motion was due to commence on 9 February, some six days later. That was not a circumstance which was relevantly a change of circumstances warranting the lifting of the stay. Indeed, it tended to point the other way in that the resolution of the originating motion was now approaching and the reasons for lifting the stay so that the counterclaim might be prosecuted before the resolution of the originating motion had, to that extent, lesser force than they did before. For those reasons the chamber summons was dismissed.

Conclusions with respect to the Counterclaim

134 In summary, the "counterclaim" is an extraordinary document. Dr Michael traverses his conflict with his former neighbours in Tully Court, the respondents, whom he accuses of conspiracy, defamation and perjury as well as accusing them of giving false information and "obstructing" him. The "counterclaim" filed in this application is not before me for hearing. However, the "counterclaim" makes clear on its face, that left unrestrained Dr Michael will pursue relentlessly his former neighbours in Tully Court, police officers who have investigated complaints by or against him and the State Crown Solicitor.

Dr Michael has Instituted or Conducted Vexatious Proceedings

135 For the reasons set out above I am satisfied that Dr Michael has instituted or conducted vexatious proceedings and is likely to institute or conduct vexatious proceedings in the future if not restrained from doing so.

136 I have not found any of the proceedings instituted or conducted by Mrs Michael as the moving party to be vexatious proceedings.

137 Counsel for the Attorney General submitted that I should be satisfied that Mrs Michael has instituted or conducted vexatious proceedings by reason of the assistance that she has provided to Dr Michael in instituting or conducting proceedings instituted by him in the sense that he was the moving party. Senior counsel submitted that the person who has instituted or conducted vexatious proceedings for the purpose of s 4 of the Act may extend to a person who is not a party to the proceedings but has given some assistance to a party. Senior counsel submitted that if that were not so a person would be able to cause vexatious proceedings to be instituted or conducted and not be within the reach of the Act.

138 I do not accept that submission. Section 4 of the Act provides that the court may only make an order against a person if it is satisfied that that person has instituted or conducted vexatious proceedings or is likely to do so. "Proceedings" is broadly defined. Vexatious proceedings are defined so as to encompass a greater range of proceedings than was the case under the 1930 Act. However, the definition of proceedings says nothing about the identification of a person who has instituted or conducted those proceedings.

139 It might be that a person may properly be said to have instituted or conducted proceedings even if that person did not institute or conduct the proceedings in his or her name. For example, where a person causes proceedings to be instituted in the name of another and is the real party bringing and conducting the litigation he or she may be found to have instituted or conducted the proceedings notwithstanding that they are brought in the name of another. However, that is not this case. It is not alleged that Mrs Michael caused any of the proceedings to be instituted by Dr Michael. It is not alleged that Dr Michael merely lent his name to any proceeding in which the real litigant was Mrs Michael.

140 The applicant further submitted that the manner in which Mrs Michael conducted these proceedings may lead to a finding that she had conducted vexatious proceedings. I do not accept that submission. In my view the manner in which a person defends or resists an application brought under s 4 of the Act is not sufficient to amount to the institution or conduct of vexatious proceedings, at least where the person does not take any interlocutory application or step that might properly be characterised as the institution of a proceeding. In this case a "counterclaim" was purported to be brought. However, Mrs Michael was not a party to that purported counterclaim.

141 I am not satisfied that Mrs Michael has instituted or conducted vexatious proceedings. That is not the end of the matter. I must further consider whether it is likely that Mrs Michael will institute or conduct vexatious proceedings. I am not so satisfied. Mrs Michael has brought relatively few relevant proceedings until now. Those concerned her neighbours in Tully Court. She no longer lives in Tully Court. Mrs Michael has assisted Dr Michael in the conduct of proceedings instituted by him. However, that is no basis for inferring that if Dr Michael is not able to institute proceedings in his own name that Mrs Michael will do so as his instrument or agent.

142 I must now determine whether to exercise my discretion to make any of the orders sought by the Attorney General in his originating motion against Dr Michael. In exercising that discretion there are a number of matters which I must take into account.

143 The right of an individual to commence proceedings to enforce or defend his rights is one of the fundamental rights in a free society. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. To limit this right represents a major restriction on the liberty of the individual for which there must be a proper and adequate justification. The effect of an order made under s 4(1)(d) of the Act does not remove the right to issue proceedings entirely. A person against whom such an order has been made still has access to the courts. However, he is required to take an additional step in the process by obtaining the permission of the court prior to any claims being issued. Nevertheless, the making of an order under s 4(1) of the Act restricts the rights of the person against whom such an order has been made and for that reason the powers conferred by the section must be exercised with caution.

144 At the same time, the court must have regard to the purpose of the Act. The institution or conduct of unmeritorious litigation will have an emotional and financial impact on the other parties to the litigation. Innocent parties may be dragged through the courts for a decision made at the end of a long legal road that the claim never had any legal merit in the first place. The vindicated party frequently has no practical opportunity to recoup even court assessed costs, let alone actual out of pocket costs. And there is no redress for the loss of time and the aggravation of futile legal proceedings. The Act is intended to provide protection to a person who may be the target of vexatious litigation. Furthermore, the time of the court is unreasonably occupied in dealing with vexatious litigation. Not only are the resources of the court wasted in dealing with such litigation but other more worthy litigation is delayed.

145 Dr Michael submitted that an order under s 4 of the Act should not be made because he and Mrs Michael have now moved out of Tully Court. However, the likelihood of Dr Michael instituting or conducting vexatious litigation has not come to an end because he has moved out of Tully Court. Dr Michael continues to maintain not only that he is innocent of the criminal charge he faces but that the charge against him is the result of a criminal conspiracy involving some of his former neighbours and police officers. Dr Michael's propensity to commence litigation in response to the conspiracies he sees against him is illustrated by his institution of the purported counterclaim in this application.

146 The nature and frequency of the litigation commenced by Dr Michael without reasonable ground, the distress and aggravation that such litigation must have caused to the persons against whom it has been brought and the amount of time that it has occupied of the various courts, together with the likelihood that such conduct will continue are good reasons for making an order under s 4(1)(d) of the Act. I will make such an order.

147 The Attorney General also seeks an order under s 4(1)(c) of the Act staying any proceedings that have been instituted by Dr Michael. The court should only make such an order if it is satisfied that the actions so stayed have no legal merit. The court must be astute to ensure that it does not prevent a litigant from pursuing a claim that may have legal merit. The court should be careful to ensure that there is not a good cause of action lurking beneath a confused pleading or instituted by an inappropriate process.

148 It is not appropriate for the court to make a blanket order staying any proceedings that have been instituted by a person. The court should consider each existing proceeding and whether or not that proceeding should be stayed. Accordingly, I turn to consider proceedings instituted by Dr Michael that remain on foot.

Private Prosecutions against Police Officers

149 On 28 February 2001 Dr Michael issued the following complaints in the Court of Petty Sessions:

Private prosecution against Senior Sergeant Gors alleging conspiracy to bring a false accusation

Private prosecution against Senior Constable Nunn alleging conspiracy to bring a false accusation

Private prosecution against Senior Constable Nunn alleging he made a false complaint

150 In my view each of those matters was instituted without reasonable ground. They were adjourned sine die on 26 March 2001. Dr Michael has taken no steps to prosecute them since. They should all be stayed.

151 On 2 March 2001 Dr Michael issued complaint PE 15011/01 instituting a private prosecution against Senior Sergeant Gors alleging conspiracy to bring a false accusation. That is the same allegation that is the subject of complaint PE 15003/01. Dr Michael explained that the second complaint was instituted because the first one was on the wrong form. Complaint PE 15011/01, like complaint PE 15003/01, was adjourned sine die on 26 March 2001 and has not been prosecuted since. It was instituted without reasonable ground. It will be stayed.

152 On 2 March 2001 and 3 March 2001 respectively, Dr Michael issued complaints PE 15010/01 and PE 15009/01 against Senior Constable Nunn. They allege the same matters as complaints PE 15004/01 and PE 15002/01 respectively. Again, Dr Michael explained that they were issued because the first complaints were issued on the wrong forms. Again, each complaint was adjourned sine die on 26 March 2001 and Dr Michael has taken no steps to prosecute them since. Each complaint was instituted without reasonable ground and each will be stayed.

153 This civil action in the District Court against Mrs Maughan, Mr Wishart and Mr Wishart's two children was instituted by Dr Michael on 12 December 2001.

154 There is some evidence before me concerning the events giving rise to this action. However, I have not been addressed in sufficient detail on the merits of the action to enable me to form a concluded view whether the action was instituted without reasonable ground or was otherwise a vexatious proceeding and should be stayed. I will give to the applicant liberty to apply in relation to this matter.

155 On 15 November 2002 Dr Michael brought application FR 3411/02 to vary the VRO. I have not been addressed in sufficient detail about the merits of this matter to enable me to determine whether the application was instituted without reasonable cause or was otherwise a vexatious proceeding and should be stayed. I will give to the applicant liberty to apply in relation to this matter.

156 As I have already stated, on 30 September 2003, E M Heenan J ordered that the purported counterclaim be severed from the originating summons and stayed, subject to liberty to apply, until hearing and determination of the originating motion. The purported counterclaim is presently stayed pursuant to that order. It is not appropriate to make any further order in relation to the purported counterclaim at this time.

Application for Special Leave to Appeal to High Court

157 On 6 October 2004 Dr Michael made an application for special leave to appeal to the High Court against the dismissal of his appeal by the Full Court in FUL 155/03.

158 The Act does not and cannot confer on this Court jurisdiction to stay proceedings pending in the High Court.