Bar-Mordecai v Attorney General

CA 2009/338296: Michael Bar-Mordecai (Applicant) State of NSW (Respondent) Representation: Counsel:

CA 2004/180898: Applicant self-represented K G Oliver (Respondent) G J Bateman (First Interested Party) M Saunders (Third Interested Parties)

CA 2009/338296: Applicant self-represented G J Bateman (Respondent) Solicitors:

Applicant self-represented Crown Solicitor's Office (Attorney General (NSW) Crown Solicitor's Office (State of NSW) Avant Legal (Second Interested Party) Blake Dawson (Third Interested Parties) File Number(s): CA 2004/180898; CA 2009/338296 Decision under appeal Jurisdiction: 9111 Citation: Attorney-General of NSW v Bar-Mordecai [2011] NSWSC 100 (3 March 2011); Bar-Mordecai v State of NSW (District Court, 4 March 2011 unreported) Before: Davies J; Truss DCJ File Number(s): SC 2004/180898; DC 2009/338296

HEADNOTE [This headnote is not to be read as part of the judgment] On 25 February 2005 Patten AJ made an order pursuant to Supreme Court Act 1970 (NSW), s 84, that the applicant obtain leave of the Supreme Court before instituting legal proceedings in any court. Section 84 has since been repealed and replaced by the Vexatious Proceedings Act 2008 (NSW). In the first matter, the applicant commenced proceedings (with leave) against the State of New South Wales for damages in respect of alleged unlawful arrest, false imprisonment and assault. In that matter, Truss DCJ made an order on 4 March 2011 dismissing a notice of motion brought by the applicant seeking an order for discovery. Truss DCJ held that an application for an order for discovery was conduct instituting a "proceeding" and thus required leave of the Supreme Court. In the second matter, the applicant sought leave to commence actions in medical negligence and defamation. Section 14(3) of the Vexatious Proceedings Act requires a person seeking leave to institute proceedings to file an affidavit listing proceedings that the person has instituted and disclosing facts material to the application. On 9 February 2011 Davies J in the Common Law Division identified two questions formulated by the Attorney General: "Whether, on the proper construction of the Vexatious Proceedings Act 2008: (a) The [applicant] may, in the absence of any order of the Court requiring or authorising him to do so, lawfully serve and/or rely upon additional evidence in support of one or more of his pending leave applications; and if not (b) whether the Court may lawfully make an order requiring or authorising him to do so." His Honour answered "No" to question (a) and "Yes" to question (b). The issues for determination on appeal were: (i) whether an application for an order for discovery is a "proceeding", (ii) whether the order made by Patten AJ extended to an application for discovery, and (iii) whether the answers given by Davies J were correct. The Court held (per Basten JA, Beazley JA and Sackville AJA agreeing), allowing the appeal: In relation to (i)

1. In ordinary forensic parlance, it could not be said that every interlocutory application gives rise to an interlocutory proceeding. On the other hand, some interlocutory applications may be said to involve the institution of proceedings within the guidance given in s 5(2) of the Vexatious Proceedings Act. There may be "interlocutory proceedings" which, under the terms of a vexatious proceedings order, properly require leave to be instituted, without every interlocutory application by a person subject to a vexatious proceedings order being within the scope of s 13: [34]
2. Section 13(1)(a) of the Vexatious Proceedings Act gives no broader meaning to "proceedings" than that which should be given to the term as used in the order itself. The statutory provisions operate only with respect to the kind of proceedings referred to in the relevant order: [41] In relation to (ii)
3. The applicant only requires leave under the Vexatious Proceedings Act to institute proceedings, whether in this Court or elsewhere, if the order made by Patten AJ has that effect: [26]
4. There is nothing in the straightforward language adopted in Patten AJ's order to suggest that leave would be required with respect to steps in proceedings which a vexatious litigant had been given leave to institute: [35]
5. If the terms of the order were thought to be unclear it would be appropriate to refer to the judgment, constituting the reasons for the order, to seek to resolve any ambiguity or lack of clarity. It would also be appropriate to have regard to the terms of the statute conferring the power pursuant to which the order was made: [36] Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302; International Finance Trust Company Ltd v New South Wales Crime Commission (No 2) [2010] NSWCA 46 applied.
6. Section 84(1) of the Supreme Court Act provided that the condition for making the order made by Patten AJ was whether the person "habitually and persistently and without any reasonable ground institutes vexatious legal proceedings". The order provided for by that section was that the person "shall not ... institute any proceedings in any court"; language which must have the same scope of operation as the language which triggered the power to make the order: [37] Attorney General v Bar-Mordecai [2004] NSWSC 1277 considered.
7. The reasoning adopted by Patten AJ is consistent with the view that the institution of proceedings, which his order prohibited absent leave, extended to the initiation of any proceeding in any court, any form of application which sought to reopen, review or appeal from an existing determination, but not to a routine interlocutory order in extant proceedings. An order restrictive of the civil rights of an individual may properly be given full effect according to its terms, but should not be read so expansively as to impose restrictions which are neither expressed nor necessarily implied by the terms of the order. On its proper construction, the order made by Patten AJ did not extend to requiring leave in order to obtain an order for discovery in properly constituted proceedings in a court: [39]-[40] Attorney General v Bar-Mordecai [2004] NSWSC 1277; Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478; Re Vernazza [1960] 1 QB 197 considered. In relation to (iii)
8. If the affidavit filed pursuant to s 14(3) of the Vexatious Proceedings Act provides the information required by that subsection as at the date it is filed with the application, it will comply with that subsection. The fact that it may become out of date will not render it non-compliant: [54]
9. Section 16(2) of the Vexatious Proceedings Act is silent as to which party would be entitled to tender evidence given in other proceedings in which the applicant was a party and it should therefore be inferred that either party would have the right to take that step: [59]
10. The prohibition on service by the applicant of a copy of the application or the s 14(3) affidavit, otherwise than pursuant to an order under s 16(1)(a), would, by implication, extend to service of any other material relevant to the application. Thus, even if there is to be a hearing when the court is considering dismissing the application, the application is to remain ex parte until the court determines otherwise: [60]
11. If a party to proceedings is entitled to call evidence only by leave, it is necessary to identify a prohibition on adducing evidence of any kind, subject to the court otherwise ordering. No such prohibition is to be found in the Vexatious Proceedings Act, either in its express terms, or by necessary implication. Case management powers are to be found in the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW): [62]

Judgment 1BEAZLEY JA: I have had the opportunity of reading in draft the reasons of Basten JA and the additional remarks of Sackville AJA. 2I agree with Basten JA's orders and the reasons his Honour proposes for those orders. I agree that the issues raised for determination depend upon the proper construction of the order made by Patten AJ. This is required by the terms of the Vexatious Proceedings Act 2008, s 13(1)(a). I would only add that I share the concerns raised by Sackville AJA in his additional remarks. 3BASTEN JA: On 25 February 2005 Patten AJ ordered that Mr Bar-Mordecai ("the applicant") obtain leave of the Supreme Court before instituting legal proceedings in any court. The order was based on a finding that he was a "vexatious litigant", as identified in s 84 of the Supreme Court Act 1970 (NSW). That section has since been repealed and replaced by the Vexatious Proceedings Act 2008 (NSW).

Issues 4There are two matters presently before this Court. The first involves an action in the District Court in which Truss DCJ made an order on 4 March 2011 dismissing a notice of motion brought by the applicant seeking an order for discovery. The substantive action involved a claim against the State of New South Wales for damages in respect of alleged unlawful arrest, false imprisonment and assault of the applicant on 17 March 2008. Although Truss DCJ did not give reasons for her order, it is clear from her remarks in the course of argument on the hearing of the motion that she accepted the submissions of the State that an application for an order for discovery was conduct instituting a "proceeding" for the purposes of the Vexatious Proceedings Act and thus required leave from a judge of the Supreme Court. 5The second matter involves an application by the applicant for leave to commence two actions. The first proposed action was against a medical practitioner for medical negligence; the second proposed a claim in defamation against the publisher of the Daily Telegraph and a journalist. Those matters came before Davies J in the Common Law Division on 9 February 2011. Davies J made two sets of orders. The first set involved two variations of the prohibition order made by Patten AJ on 25 February 2005. The second set of orders made by Davies J involved the identification of two separate questions formulated by the Attorney General which, together with the answers given, were as follows: Whether, on the proper construction of the Vexatious Proceedings Act 2008: (a) The [applicant] may, in the absence of any order of the Court requiring or authorising him to do so, lawfully serve and/or rely upon additional evidence in support of one or more of his pending leave applications; [Answer: No] and if not (b) whether the Court may lawfully make an order requiring or authorising him to do so. [Answer: Yes] 6The applicant seeks to challenge the order made by Truss DCJ on 4 March 2011 and the answers given by Davies J to the separate questions formulated by the Attorney General. 7It is convenient to deal with the issues raised in the following order: (1) identify the various relevant statutory provisions; (2) consider the scope of the order made by Patten AJ, as amended by Davies J; (3) determine the application in respect of the order made by Truss DCJ, and (4) determine the application with respect to the answers given by Davies J to the separate questions. 8Each of the orders challenged by the applicant was interlocutory and hence the applicant required leave to appeal, pursuant to s 127(2) of the District Court Act 1973 (NSW) (in respect of the order of Truss DCJ) and s 101(2)(e) of the Supreme Court Act (in respect of the orders of Davies J). In March 2011 the applicant sought leave from Schmidt J, pursuant to the Vexatious Proceedings Act, to institute applications for leave to appeal to this Court in relation to each judgment. On 5 April and 16 May 2011 Schmidt J ordered that the applicant serve documents on "the relevant parties" in each matter. On 11 November 2011 Davies J granted the applicant leave to pursue his applications for leave to appeal to this Court. 9In this Court leave to appeal was not opposed and should be granted. For the reasons which appear below, the order made by Truss DCJ was erroneous and should be set aside. Further, the answers to the questions given by Davies J were also erroneous and should be set aside. The Court has formulated alternative answers to give effect to its reasons.

Legislative regimes 10Legislative schemes for dealing with vexatious litigants vary across jurisdictions and over time. In some jurisdictions, the Supreme Court is empowered to "declare" a person to be a vexatious litigant: see, eg, Supreme Court Act 1986 (Vic), s 21; Supreme Court Act 1933 (ACT), s 67A. Under some schemes the statutory result of a declaration is that the person may not institute or continue proceedings without leave of the court: Supreme Court Act 1933 (ACT), s 67A and Supreme Court Civil Procedure Act 1932 (Tas), s 194G. In other jurisdictions, including New South Wales, it is the order of the court which imposes the relevant prohibition. 11The order in respect of the applicant was made under s 84 of the Supreme Court Act which relevantly provided: "84 Vexatious litigant (1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court ...." 12Section 84 was repealed by the Vexatious Proceedings Act, which commenced on 1 December 2008. There was a savings provision in relation to orders made under s 84 (and an equivalent provision in the Land and Environment Court Act 1979 (NSW), which was also repealed). Clause 4 of Schedule 1, which had effect pursuant to s 20 of the Act, provides: "4 Certain existing orders taken to be vexatious proceedings orders (1) This clause applies to any order (an existing order) that: (a) was made under a repealed vexatious litigant provision, and (b) is in force immediately before the commencement of this Act, and (c) operates to prevent a person from instituting ... proceedings without the leave of the Supreme Court .... (2) An existing order is taken to be (and to have effect as if it were) a vexatious proceedings order made under this Act by the Supreme Court ... and may be varied, set aside or reinstated accordingly." 13The operative provisions of the Vexatious Proceedings Act, which empower the superior courts in the State to make "vexatious proceedings orders" are to be found in Pt 2 of the Act (ss 8-11). The critical provisions for present purposes are those which permit the grant of leave to institute proceedings and are set out in Pt 3 (ss 12-16), together with the definitions of the terms "proceedings" (s 4) and "institute" (s 5). 14The context in which the leave provisions operate involves two primary elements. The first is the order of the court imposing the relevant constraint; the second is s 13 which identifies the consequences of such an order: "13 Contravention of vexatious proceedings order prohibiting institution of proceedings (1) If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings: (a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16 .... (2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section. (3) Any proceedings that are stayed by subsection (2) are taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4). (4) Without limiting subsection (2) or (3), the authorised court, or the court or tribunal in which the proceedings are instituted, may make: (a) an order declaring that proceedings are proceedings to which subsections (2) and (3) apply, and (b) an order dismissing the proceedings before the expiry of the period referred to in subsection (3), and (c) any other order in relation to the proceedings that it considers appropriate, including an order for costs." 15The operative provisions for present purposes are ss 14, 15 and 16 which relevantly provide: "14 Application for leave to institute proceedings (1) This section applies to a person (the applicant) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or (b) ... (2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting. (3) The applicant must file an affidavit with the application that: (a) lists all occasions on which the applicant has applied for leave: (i) under this section, or (ii) before the commencement of this section-as required by an order under ... section 84 of the Supreme Court Act 1970, and (b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on any person unless: (a) an order is made under section 16(1)(a), and (b) the copy is served in accordance with the order. (5) An appropriate authorised court may dispose of the application by: (a) dismissing the application under section 15, or (b) granting the application under section 16. (6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application. 15 Dismissing application for leave (1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers: (a) the affidavit required by section 14(3) does not substantially comply with that subsection, or (b) the proceedings are vexatious proceedings, or (c) there is no prima facie ground for the proceedings. (2) The application may be dismissed even if the applicant does not appear at the hearing of the application. 16 Granting application for leave (1) Before an appropriate authorised court grants an application made under section 14 for leave to institute proceedings, it must: (a) order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application, and (b) give the applicant and each relevant person an opportunity to be heard at the hearing of the application. (2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved ... as a party .... (3) The court may grant leave to institute proceedings subject to the conditions that the court considers appropriate. (4) However, the court may grant leave only if it is satisfied that: (a) the proceedings are not vexatious proceedings, and (b) there are one or more prima facie grounds for the proceedings. (5) In this section: relevant person, in relation to the applicant for leave to institute proceedings, means each of the following persons: (a) the person against or in relation to whom the applicant proposes to institute the proceedings, (b the Attorney General, (c) the Solicitor General, ...." 16The broad structure of these provisions may be understood as involving, though not necessarily imposing, a three-stage structure: Stage 1 - applicant files application with affidavit (s 14(3)); Stage 2 - court considers whether to dismiss the application under s 15 or make an order for service of the application and the affidavit on "each relevant person", under s 16(1)(a); Stage 3 - the court conducts a hearing under s 16(1)(b), and determines whether to dismiss or grant the application. 17One issue of construction, not expressly addressed in the present case, is whether, by implication from s 15(2), even if the Court is not initially minded to order service of documents on any party, it must nevertheless offer the applicant a hearing before dismissing the application. A second issue, which did arise in the present case, was the extent to which the applicant, between stages 1 and 2, and the applicant and the person served, between stages 2 and 3, could take various steps, including the filing of affidavits. Section 16(2) envisages that transcripts and documents filed in other proceedings may be received as evidence at the hearing, from which it may be inferred at least that evidence may be tendered at the hearing under s 16(1)(b), if that stage is reached. 18The primary focus of the court's consideration will be the three negative criteria in s 15(1), satisfaction of any one of which obliges the court to dismiss the application for leave. There is some overlap between s 15(1) and s 16(4); the latter states that the Court may grant leave "only if" the court is satisfied that the proceedings are not vexatious proceedings and that there is a prima facie ground for them. The absence of reference in s 16(4) to the s 14(3) affidavit suggests that, if the court considers the affidavit does not substantially comply it will already have dismissed the proceedings before the hearing, although no doubt non-compliance may be revealed at the hearing so that the obligation under s 15(1) will then be engaged. 19The scope of operation of these provisions depends, critically, on the definitions contained in ss 4 and 5, which read as follows: "4 Meaning of "proceedings" In this Act, proceedings includes: (a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and (c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way. 5 Instituting proceedings (1) In this Act, institute, in relation to proceedings, includes: (a) for civil proceedings-the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and (b) for proceedings before a tribunal-the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and (c) for criminal proceedings-the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and (d) for civil or criminal proceedings or proceedings before a tribunal-the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings. (2) A reference in this Act to instituting proceedings includes a reference to instituting: (a) proceedings generally, and (b) proceedings in relation to a particular matter, and (c) proceedings against or in relation to a particular person, and (d) proceedings in a particular court or tribunal." 20The purpose of s 5(2) is not immediately apparent and was not the subject of submissions in this case. What is apparent from ss 4 and 5 read together is an intention to be comprehensive in the coverage of the operative provisions. This gives rise to its own difficulties of interpretation. The three elements in s 4 appear to be divided into the primary or substantive proceedings (referred to in paragraph (a)), subsidiary or connected proceedings, (paragraph (b)) and proceedings by way of appeal or review (paragraph (c)). 21The very comprehensiveness of s 4 is problematic. If an application for leave to commence fresh proceedings is a "proceeding", it could not fall within paragraph (b), because there are no proceedings pending to which the application is incidental or with respect to which it is connected. As a primary proceeding, the leave application might be thought to fall within paragraph (a), but that would give rise to an infinite regression and is not a construction of paragraph (a) which should be accepted. It may be that an application for leave, which must be made "ex parte", is not a proceeding for that reason. By analogy, although s 78 of the Judiciary Act 1903 (Cth) provides that "[i]n every Court exercising federal jurisdiction the parties may appear personally ...", the High Court has held that an application for leave or special leave to appeal is not "in the ordinary course of litigation" and, until leave is granted, "there are no proceedings inter partes before the Court": Collins v The Queen [1975] HCA 60; 133 CLR 120 at 122 (Barwick CJ, Stephen, Mason and Jacobs JJ). As the Court further explained, when the motion for leave is moved, "the applicant for such leave or special leave is no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court". 22A potential problem for the administration of justice arises from the prohibition in s 14(6) of an appeal by the applicant from a decision "disposing of the application". An applicant might be aggrieved by a dismissal of proceedings or a conditional grant of leave. This provision might be thought to impose a barrier to any appellate consideration of the operation of the legislation. However, the restriction of the prohibition to appeals (not a defined term) would permit the exercise by this Court of its supervisory jurisdiction under s 69 of the Supreme Court Act. That would include review for errors of law on the face of the record, defined to include the reasons of the court or tribunal for its "ultimate determination": s 69(4). 23The prohibition on an appeal appears to have been at least part of the reason why Davies J thought it desirable to state separate questions of law, answering which would not involve the disposal of the application and hence would not engage the preclusion on an appeal in s 14(6). The other order the subject of the present proceedings, being made in the District Court, was not an order in relation to an application for leave to institute proceedings but appears to have been, though not so described, an order dismissing the notice of motion filed in that Court pursuant to s 13(4). That order, being made less than 28 days after the filing of the application before that Court, took effect prior to the statutory dismissal by s 13(3). There was (and is) no constraint on an appeal from such an order, other than the requirement for leave under the Vexatious Proceedings Act.

Effect of vexatious proceedings order 24Although an issue was raised as to whether the transitional provision in Sch 1, cl 4 of the Vexatious Proceedings Act was intended to give a greater effect to the order made by Patten AJ than the effect provided by s 84 of the Supreme Court Act, as in force when the order was made, and whether such a provision could expand the effect of the order, the real question in the present case turned on the proper construction of the order itself. The operative part of the order, being paragraph (1), merely stated that the applicant "shall not, without leave of this court institute proceedings in any court". 25Paragraph (5) of the order required that the applicant give "not less than three days notice to Crown Solicitor" of any application for leave pursuant to order (1). As that direction was inconsistent with the scheme of Part 3 of the Vexatious Proceedings Act, Davies J varied the order on 3 March 2011 to prohibit service of any application and the giving of notice of any application or proposed application until an order was made by the Court under s 16(1)(a). Davies J also added an additional order directing that an application for leave be filed in the form of a summons returnable in the Common Law Division, being the appropriate usual process for commencing fresh proceedings, rather than filing a notice of motion in the proceedings in which the original vexatious proceedings order was made, as had been the pre-existing practice: Attorney General of NSW v Bar-Mordecai [2011] NSWSC 100 at [57]. 26It was assumed by all parties that the proceedings in this Court, although requiring leave of this Court in any event, could not be instituted without leave from a single judge because they fall within paragraph (c) of the definition of "proceedings" in s 4. However, the applicant only requires leave under the Vexatious Proceedings Act to institute proceedings, whether in this Court or elsewhere, if the order made by Patten AJ has that effect.

District Court proceedings 27As noted above, the first application before this Court concerned the dismissal of the applicant's motion for discovery by Truss DCJ on 4 March 2011. The proceedings involved a claim for personal injury damages in respect of the alleged unlawful arrest and incarceration of the applicant in March 2008. What was sought (according to the transcript in the District Court) was "the electronically stored police documents, hard copy documents, CCTV footage all about what happened on 17 March 08 in the holding area at the Waverley Police Station": Tcpt, 04/03/11, p 13(40). 28The applicant was required to file a motion, presumably because an order for discovery could not be made in the proceedings unless the court for special reasons ordered otherwise: Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 21.8. 29It is clear from the transcript that Truss DCJ did not deal with the application under r 21.8, but rather, addressed the issue by reference to a motion by the State that the applicant's motion should be dismissed under the Vexatious Proceedings Act. Reliance was placed in argument before her Honour on the definition of "proceedings" in s 4(b) as including "any interlocutory proceedings" taken in connection with or incidental to proceedings pending before the Court. 30The judge was taken to the reasons of McCallum J in Attorney General v Bar-Mordecai [2010] NSWSC 1410 at [18]-[22]. The procedural context in which the issues arose before McCallum J are complex and need not be recounted here. It is sufficient to note that her Honour expressed some doubt as to whether an application for trial by jury was "more properly characterised as an interlocutory application as to the method by which an action is to be tried", rather than "a step to 'institute' proceedings in the sense explained in s 5": at [18]. She expressed the view that once the substantive proceedings were on foot, it would "be open to [the applicant] (without the need for leave) to make an application in those proceedings ... to have the actions tried by jury": at [22]. 31The focus in the District Court, and in the written submissions in this Court, turned almost exclusively on whether an order for discovery was a "proceeding" within s 4(b), so that an application for such an order could not be made without leave being granted under s 14(5)(b). 32This raises a question of some magnitude, as to the proper construction of the legislation. To give a broad construction (as proposed by the State) to the concept of "interlocutory proceedings" in s 4(b) could transfer much of the case management from the trial court to the Supreme Court and could lead to the constant interruption of trials for the institution of applications for leave in the Supreme Court. For example, an objection to evidence which led to a voir dire might be considered the commencement of an interlocutory proceeding, on a broad view of that term. The idea that an order for discovery, even though sought prior to trial, could not properly be resolved by a judge in the trial court, without a prior grant of leave from the Supreme Court to allow the trial court even to consider the application, would verge on the irrational. It would tend to disrupt the orderly administration of justice and derogate from the overriding objective of just, quick and cheap resolution of the real issues in dispute, as stated in ss 56-60 of the Civil Procedure Act 2005 (NSW). This was not a proceeding involving private litigants, but it would be surprising if litigants with personal or commercial interests in reducing expenditure on litigation would be inclined to support such a result. 33In the course of the hearing in this Court counsel for the State accepted that there should be some limit on the scope of interlocutory applications which could be said to give rise to "interlocutory proceedings". Formulating an appropriate principled approach to the question of statutory construction proved less amenable to solution. 34There is no doubt that a proper reading of the legislation should seek to give work to all of the words used by the legislature, if that can be done without giving rise to absurd or irrational results. In the present case, the scope of the phrase "interlocutory proceedings" is uncertain. In ordinary forensic parlance, it could not be said that every interlocutory application gives rise to an interlocutory proceeding. On the other hand, some interlocutory applications may be said to involve the institution of proceedings within the guidance given in s 5(2) of the Act. Thus, to join a new party to existing litigation may be described as instituting proceedings in relation to a particular person: see s 5(2)(c). Similarly, to introduce into an extant pleading a substantially new cause of action, based on a different substratum of facts to those already pleaded, may be to institute proceedings "in relation to a particular matter": s 5(2)(b). It is also possible that an application to remove proceedings from one court or tribunal to another constitutes an application to institute proceedings in the other court and hence the institution of proceedings in a particular court or tribunal, for the purposes of s 5(2)(d). However, it is not necessary to reach a firm conclusion in respect of these examples: they are identified solely for the purpose of demonstrating that there may be "interlocutory proceedings" which, under the terms of a vexatious proceedings order, properly require leave to be instituted, without every interlocutory application by a person subject to a vexatious proceedings order being within the scope of s 13. 35The reason why these questions need not be resolved is that the challenge to the dismissal of the application for discovery in the District Court may be dealt with on a different basis. As noted above, the prohibition on institution of proceedings without leave is limited to "proceedings of the kind to which the order relates": s 13(1)(a). The critical question is therefore whether the order made by Patten AJ extended to an application for discovery in the District Court proceedings. There is nothing in the straightforward language adopted in Patten AJ's order to suggest that leave would be required with respect to steps in proceedings which a vexatious litigant had been given leave to institute. 36If the terms of the order were thought to be unclear it would be appropriate to refer to the judgment, constituting the reasons for the order, to seek to resolve any ambiguity or lack of clarity: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 at [37] and authorities there referred to. It would also be appropriate to have regard to the terms of the statute conferring the power pursuant to which the order was made. In some circumstances it may be appropriate to consider a broader ambit of surrounding circumstances or material: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302 at [98] (Campbell JA, Handley AJA agreeing). However, it is not necessary for present purposes to consider how far that inquiry might properly extend: cf International Finance Trust Company Ltd v New South Wales Crime Commission (No 2) [2010] NSWCA 46 at [53]-[55]. 37The Court was not taken to the judgment of Patten AJ for this purpose, but the issue as to the construction of the order having arisen in the course of argument, it is proper to refer to the judgment to resolve what is, in substance, the central dispute between the parties. In a detailed consideration of the background to the application for a restraining order, Patten AJ considered a number of notices of motion filed by the applicant in other proceedings: Attorney General v Bar-Mordecai [2004] NSWSC 1277 at [79], [80], [86], [91], [94] and [97]. The purpose of the consideration was not in order to determine the scope of the order his Honour ultimately made, but to determine the condition for making such an order, namely whether the person "habitually and persistently and without any reasonable ground institutes vexatious legal proceedings", being the language of s 84(1) of the Supreme Court Act, as then in force. However, the order provided for by that section was that the person "shall not ... institute any legal proceedings in any court"; language which must have the same scope of operation as the language which triggered the power to make the order. Accordingly, it should be accepted that Patten AJ intended that the order he ultimately made would have the same scope as the proceedings to which his attention was properly to be directed in deciding whether or not to make the order. In resolving that question, he adopted the principle stated by Yeldham J in Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488F, set out by Patten AJ at [78]: "While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to relitigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form." 38In its terms, that statement of principle does not cover an interlocutory application made by the applicant in proceedings commenced by him. However, a more complete reading of the judgment of Yeldham J would not support such a distinction. Prior to the passage set out above, his Honour referred to a decision of the English Court of Appeal in Re Vernazza [1960] 1 QB 197 and set out a lengthy passage from the judgment of Ormerod LJ which included (at 487D-E) the following statement, in response to a submission that "taking any step in an action was the institution of proceedings": "That, of course, puts an extremely wide construction on the section, and would operate to bring within its ambit even a summons for directions. For my part, I am not prepared, as I have already intimated, to put so wide a construction as that on the words of this section, but I think that the words admit of a wider construction than that for which Mr Bagnall contends, which is that the words 'institution of proceedings' mean nothing more than the commencement of an action by a writ." 39The reasoning adopted by Patten AJ is consistent with the view that the institution of proceedings, which his order prohibited absent leave, extended to the initiation of any proceeding in any court, any form of application which sought to reopen, review or appeal from an existing determination, but not to a routine interlocutory order in extant proceedings. 40An order restrictive of the civil rights of an individual may properly be given full effect according to its terms, but should not be read so expansively as to impose restrictions which are neither expressed nor necessarily implied by the terms of the order. On its proper construction, the order made by Patten AJ did not extend to requiring leave in order to obtain an order for discovery in properly instituted proceedings in a court. 41There remains the question as to whether the transitional provision in the Vexatious Proceedings Act gives an expanded effect to an existing order. There is nothing in the language of cl 4 which purports to achieve such a result. The undoubted purpose of cl 4 was to permit existing orders to have ongoing effect as if made under the Vexatious Proceedings Act. It might be possible for such an order to be given a different effect, without changing its scope. However, the Vexatious Proceedings Act does not purport to do that. Section 13(1)(a) gives no broader meaning to "proceedings" than that which should be given to the term as used in the order itself. In other words, the statutory provisions operate only with respect to the kind of proceedings referred to in the relevant order. There is, for example, no attempt to deem the scope of the order to be broader than its intended scope. 42It follows that the applicant did not need leave under the Vexatious Proceedings Act to seek an order for discovery in the District Court and that Truss DCJ was in error in acceding to the submissions of the State that such leave was required. The order in the District Court must be set aside and the matter remitted to the Court for consideration on its merits. 43If this construction of the order were incorrect, and given the practical consequences of the alternative construction, there might be much to be said for the Court varying the order of Patten AJ so as to limit its operation. This Court could take that step of its own motion, pursuant to s 9 of the Vexatious Proceedings Act, though not, of course, without hearing from the parties. Such a step could not have been taken by the District Court, which is not an "authorised court" for the purposes of the Vexatious Proceedings Act generally, nor with respect to the order in question, which was made in the Supreme Court. 44In the future, it may be desirable that judges making vexatious proceedings orders give consideration to their scope. For example, it may be proper to consider whether, in respect of a matter which is permitted to go to trial, in circumstances where leave to appeal may be required, it is desirable to impose a second leave requirement.

Answers to separate questions 45The questions formulated by the Attorney General are not capable of being answered in the form in which they were asked. They commence with the assumption that they can properly be answered by construing the Vexatious Proceedings Act. However, as the parties before us acknowledged, that Act says nothing, expressly, which would assist in answering either question: it is necessary to look at the general powers available with respect to proceedings in the Supreme Court to address the issues sought to be raised. 46Secondly, the first question involved two parts, each being in the alternative. A single answer to each of what are potentially four separate questions may be inapt and the question may properly need to be considered in parts. 47Thirdly, both questions refer to the possibility of the Court "requiring" an applicant to serve or rely upon "additional evidence". It is by no means clear what was meant by that language: no party suggested that, although the second question was answered "Yes", the Court had power to order an applicant to serve or rely upon further or additional evidence. 48Fourthly, the language of "authorisation" is inapt in respect of the relationship between the court and the party who may or may not wish to tender evidence. The reasons given by Davies J and the submissions in this Court assumed that what was intended was reference to a grant of leave to call evidence. 49Fifthly, as noted above, the steps to be taken with respect to an application for leave to institute proceedings may be threefold. It might therefore have been better to formulate the questions so as to distinguish between the different stages of the proceedings. The absence of reference to the temporal element in an application for leave to institute proceedings is apt to obscure aspects of the legislation which may be relevant to answering correctly each part of the questions. 50Finally, the questions appear to assume that the steps in respect of the application are limited to those identified in ss 14-16. In practical terms, that is not so. Not only does s 14 not provide a mechanism by which an application is to be made, but none of the sections indicates the procedural steps which may be necessary to prepare the parties for a hearing, if there is to be one. 51Davies J held that the appropriate way to seek leave under s 14 is to file a summons. (Whether it need be filed in the Common Law Division need not presently be decided: if the proposed proceedings were sought to be instituted in the Equity Division, one might have expected that leave would have been sought from a judge in that Division.) It is also convenient to note that no party addressed the potential application of Pt 2A of the Civil Procedure Act, identifying steps to be taken before commencing proceedings. Nor, as already indicated, was any consideration given to the operation of Pt 6 of the Civil Procedure Act, dealing with case management and interlocutory matters, including the overriding purpose of the Civil Procedure Act and the rules of court. If an application for leave to institute proceedings is itself a proceeding, it is required to be commenced and carried on in the manner prescribed by the relevant rules: Civil Procedure Act, s 19. On the same assumption, proceedings must either be commenced by filing a statement of claim or a summons (UCPR, r 6.2(1)) which means, in the present circumstances, a summons pursuant to r 6.4. The application being made ex parte involves a proceeding (for the purposes of the Civil Procedure Act and the UCPR) in which there is no defendant: r 6.4(1)(a). 52There is only one rule in the UCPR expressly directed to proceedings falling within the scope of the Vexatious Proceedings Act. Rule 4.10(5) confers on an officer of the court power to refuse to accept an originating process if the person on whose behalf it is sought to be filed "is the subject of an order of the Supreme Court declaring the person to be vexatious litigant": r 4.10(5)(a)(ii). The wording of the rule seems to be inapt, for two reasons: first, the court has no express power to "declare" a person to be a vexatious litigant; secondly, the sub-rule does not expressly contemplate the filing of originating process with leave of the court. There being no specific provision for commencing an application for leave to institute proceedings other than by way of summons, it may be accepted that that is the appropriate initiating process. Whilst the proceeding remains ex parte, and the court is considering matters dealt with in the affidavit filed by the applicant pursuant to s 14(3) of the Vexatious Proceedings Act, it may be that matters relating to evidence, including UCPR Pt 31 and the Evidence Act 1995 (NSW) do not arise: see, eg, Evidence Act, s 4(1) and Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209 at [198] and [202] (Allsop J, Ryan and Heerey JJ agreeing). 53Section 14 confers on an applicant subject to a vexatious proceedings order a right to seek leave to institute proceedings: s 14(2). Further, it obliges the applicant to file, with the application seeking leave, an affidavit that complies with the requirements of s 14(3)(a)-(c). Thirdly, the section prohibits service of the application or the affidavit on any person, absent an order for service under s 16(1)(a): s 14(4). Finally, the section authorises the court to dispose of the application either by dismissing it or granting leave pursuant to s 16(4). This scheme suggests that the application may be dealt with either at stage 2 (by dismissing it) or at stage 3 (by either dismissing or granting leave). The fact that the applicant is required to file with the application an affidavit disclosing the material prescribed in sub-s 14(3) and the requirement that the court dismiss the application if it considers that the affidavit does not substantially comply with s 14(3), or that the proposed proceedings are vexatious or lack a prima facie ground, suggests that dismissal may occur on the papers before any person is served and without a hearing. On the other hand, the inclusion in s 15(2) of provision for the application to be dismissed "even if the applicant does not appear at the hearing of the application", suggests that the applicant must be given an opportunity to appear at a hearing before dismissal can occur. If the applicant is entitled to appear, it is necessary to inquire as to the purpose of the appearance: either it will allow an opportunity for the applicant to proffer further evidence or it will be limited to an entitlement to make submissions. 54The applicant submitted that, absent any indication that no further material could be tendered, there should always be an opportunity for the applicant to update the information supplied pursuant to s 14(3), at any stage before the application was determined. However, that is to misunderstand the operation of s 14(3). If the affidavit provides the information required by s 14(3) as at the date it is filed with the application, it will comply with that subsection. The fact that it may become out of date will not render it non-compliant. 55If no further hearing were permitted, the appropriate inference might be that no further material was to be put before the judge, because there would be no opportunity provided to do so. However, the implication from s 15(2) may be that the applicant should be given an opportunity to appear at a hearing, even while the matter remains ex parte and while the court is considering whether it should be dismissed or whether to order service of the application and affidavit pursuant to s 16(1)(a). It is, however, conceivable that, if a hearing is to be provided, it could become apparent in the course of the hearing that the applicant has not disclosed all material facts, possibly because their materiality was not understood by the applicant at the time he or she filed the required affidavit. The omitted fact might be critical to establishing a prima facie ground for the proceedings. 56For example, the claim might involve evidence of injury, where the causal connection with an alleged tort might depend on medical evidence. The applicant might think that the material set out in a medical report, he or she had obtained by the time the affidavit was filed did not contain facts "known" to the applicant, who could not have given direct evidence of the causal connection. The causal connection might form a necessary element in the cause of action, without which a prima facie ground for the proceedings would be missing. 57If the court became aware that such a medical report existed, one of three results could follow. First, because the report was not before the judge, the application could be dismissed for want of a prima facie ground. Secondly, because the report was not referred to in the affidavit but was deemed to be a fact material to the application, the application could be dismissed because it failed to comply with s 14(3)(c), assuming that an omission resulting from a bona fide misunderstanding on the part of an applicant could have that effect. Either of these results would appear to constitute a triumph of form over substance, the applicant no doubt being entitled to file a fresh application for leave supported by a fresh affidavit. Thirdly, the applicant could be allowed to tender the medical report at the hearing, thus completing the missing element and demonstrating that there was a prima facie ground for the proposed proceeding, which was not otherwise vexatious and in respect of which the judge was satisfied that the s 14(3) affidavit was substantially compliant. 58There is nothing in Vexatious Proceedings Act which expressly precludes the last course being taken. There might be reasons why a tender of such material at the hearing would be rejected by the trial judge in exercise of the court's general powers of case management, but there is no reason to impose a leave requirement in such a case, that requirement being predicated upon an absence of entitlement to tender relevant material. 59There are two procedural points which should be identified in this context. First, the Vexatious Proceedings Act envisages that evidence other than the s 14(3) affidavit may be received at a hearing of the application. That implication is to be derived from s 16(2), which expressly permits the admission of evidence given in other proceedings in which the applicant was a party. The purpose of such an inclusive provision would appear to be to overcome any objection that it was inadmissible; there is no suggestion in the provision that such evidence is the only evidence which could be presented, additional to the s 14(3) affidavit. There is a degree of uncertainty as to whether the implication from s 16(2) applies to any hearing which might be allowed or required before an order for service had been made under s 16(1)(a). Section 16(2) is silent as to which party would be entitled to tender the material to which it refers and it should therefore be inferred that either party would have the right to take that step. If that is so, and if the applicant wished to tender such material, or indeed any material additional to the s 14(3) affidavit, in support of his application, that might provide additional support for the availability of a hearing before dismissal of the application. 60Secondly, the prohibition on service by the applicant of a copy of the application or the s 14(3) affidavit, otherwise than pursuant to an order under s 16(1)(a), would, by implication, extend to service of any other material relevant to the application. Thus, even if there is to be a hearing when the court is considering dismissing the application, the application is to remain ex parte until the court determines otherwise. 61The argument in favour of a right of an applicant, subject to the general control of the trial court, to tender further evidence is stronger once an order for service has been made under s 16(1)(a). That is for three reasons. First, it is clear that not only the applicant, but each person served with the material must have an opportunity to be heard. It may be that the judge hearing the application will properly seek to keep the hearing within the bounds implicit in the nature of the application, being an application for leave to institute proceedings, so as to prevent that application becoming a stage rehearsal for the trial, which may not even be proposed to occur in the Supreme Court. Secondly, if there is to be a hearing, as required by the Act, it is difficult to identify a prohibition on the person served with the application and affidavit tendering evidence which might supplement or contradict that provided by the applicant. If that is to occur, it cannot be a one-sided process: the applicant must be permitted to respond in an appropriate way by tender of further evidence. Thirdly, because the test required to be satisfied before leave can be granted is only that the proceedings are not vexatious proceedings and that there is at least one prima facie ground for the proceedings, it may well be unlikely that the judge would permit cross-examination, or at least other than on a parsimonious basis. Nevertheless, any controls over the steps which will be permitted in the proceedings are not to be found in the Vexatious Proceedings Act, but rather in the case management powers enjoyed by the judge under the Civil Procedure Act and the UCPR. 62If a party to proceedings is entitled to call evidence only by leave, it is necessary to identify a prohibition on adducing evidence of any kind, subject to the court otherwise ordering. No such prohibition is to be found in the Vexatious Proceedings Act, either in its express terms, or by necessary implication. Nor did the Attorney General identify any other statutory source of such a prohibition. The possibility that the Court might impose necessary constraints by way of order or direction did not arise, because no such power had been exercised. Thus, although the right to adduce evidence was not unlimited or uncontrollable, it was not subject to a statutory precondition requiring leave. 63In relation to the application for leave to appeal from the orders of Davies J, the Court should make the following orders: (1) Grant the applicant leave to appeal in respect of the answers given to the questions identified by Davies J. (2) Allow the appeal and set aside the answers given. (3) Direct that the questions be answered as follows: Question: Whether on the proper construction of the Vexatious Proceedings Act 2008: (a) the [applicant] may, in the absence of any order of the Court requiring or authorising him to do so, lawfully serve and/or rely upon additional evidence in support of one or more of his pending leave applications; and if not (b) whether the Court may lawfully make an order requiring or authorising him to do so. Answer: In respect of both parts of the question - (i) the Vexatious Proceedings Act does not confer on the Court power to require the applicant, by order or otherwise, to serve evidence additional to the affidavit required by s 14(3) of the Act; (ii) the Vexatious Proceedings Act does not require that the applicant obtain leave to rely upon evidence in addition to the affidavit provided under s 14(3) at any hearing in respect of the application; (iii) the Vexatious Proceedings Act does not permit, and impliedly prohibits, the service by the applicant on any person of any evidential material relevant to his application prior to the Court ordering that the application and affidavit under s 14(3) be served, pursuant to s 16(1)(a); (iv) the Court may give such directions or make such orders as may properly be made in accordance with the Civil Procedure Act and the Uniform Civil Procedure Rules in respect of any hearing in respect of the application, including as to the manner and circumstances in which evidence may be proffered. (4) Order the respondent to pay the applicant's costs in this court as an unrepresented party. 64In relation to the application for leave to appeal from the orders of Truss DCJ, the Court should make the following orders: (1) Grant the applicant leave to appeal from order 4 made by Truss DCJ on 4 March 2011, dismissing the applicant's amended notice of motion filed 25 February 2011. (2) Allow the appeal and set aside the order. (3) Direct the District Court to consider the applicant's motion according to law. (4) Order the respondent to pay the applicant's costs in this court as an unrepresented party. 65SACKVILLE AJA: As the judgment of Basten JA demonstrates, the Vexatious Proceedings Act 2008 ("VP Act") gives rise to numerous questions of construction. It remains to be seen whether the legislation establishes an effective mechanism for dealing with applications for leave to institute proceedings made by persons subject to vexatious proceedings orders. 66It would be curious if a court could dismiss a leave application on one or more of the grounds specified in s 15(1) of the VP Act, before any order is made under s 16(1)(a), only after affording the applicant a hearing. However, there is no need to address that question in this appeal and I prefer not to do so. 67Subject to these observations, I agree with the orders proposed by Basten JA and with his Honour's reasons.

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