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.