Land and Environment Court (NSW)|1996-09-19|Before: Stein J, Mr J, Bignold J, Samuels JA

The applicant sought special leave to appeal to the High Court. This was heard on 6 August 1990. The applicant was represented by Mr I Jackman of Counsel. The application for special leave was refused with costs.

Undaunted the applicant made a further development application to the Council on 19 July 1993 for use of the premises as a restaurant. His application was refused and Mr Valassis appealed to the Court (10380 of 1994). The appeal was heard and determined by Pearlman CJ on 23 February 1995. Her Honour found that the proposed use was prohibited. She added 'I make it clear that there has been no other evidence adduced before me. Accordingly, having made the findings that I have, the appeal is dismissed', (p5).

The appeal raises precisely the same issues which were before the Court of Appeal in 1988 and the High Court in 1990. Indeed, the same issues as were before Pearlman CJ in February 1995. Nothing has relevantly changed with the use proposed for the premises or the zoning under the environmental planning instrument. The use as a restaurant or refreshment room is and remains prohibited. The applicant cannot establish any relevant existing use rights. Accordingly, the appeal is hopeless and cannot succeed.

Section 70(2) of the Land and Environment Court Act 1979 (the Court Act) is virtually identical with s84(2) of the Supreme Court Act 1970. Section 70(2) provides:

Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without the leave of the Court, institute any legal proceedings against the person aggrieved in the Court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by the vexatious litigant without the leave of the Court.

It appears that the applicant has been seeking to establish that the subject premises have existing use rights as a restaurant since at least 1976, if not earlier. He failed to establish such rights in the Local Government Appeals Tribunal in 1977, although the Tribunal granted a consent for a period of 6 years. Nonetheless, it is clear that this consent was not on the basis of any existing use rights. He made a further development application to the Council in 1984 and this was refused on the basis of it being prohibited development. Mr Valassis then appealed to the Land and Environment Court. The appeal was heard by Assessor Riding. The Assessor dismissed the appeal finding that the development was prohibited and no existing use rights had been established. The applicant appealed and Cripps CJ found that the Assessor had denied procedural fairness. Accordingly, he ordered that the appeal be reheard by Bignold J. His Honour heard the appeal in 1986 and, as I have recounted, granted a consent by reason of the application of cl 54(2) of the Regulation. He did not find that the premises had any existing use rights attached to them. It was from this decision that the Sydney City Council successfully appealed to the Court of Appeal on 20 May 1988.

It will be seen from the foregoing that in the last 20 years the Local Government Appeals Tribunal (twice), the Land and Environment Court (twice) and the Court of Appeal have all found that the premises have no existing use rights as a restaurant. The High Court refused leave to appeal from the decision of the Court of Appeal.

In light of the circumstances recorded earlier it is the submission of Mr Ayling, on behalf of the Council, that the Court should make an order under s 70(2) of the Court Act that the applicant be declared a vexatious litigant in relation to the subject matter of the current application and that he be prevented, without leave of the Court, from instituting any proceedings seeking to establish existing use rights for the subject premises. Mr Ayling submits that unless the declaration is made, it is inevitable that the applicant will seek to re-litigate the identical application. However, should the planning instrument controlling the use of the premises change, or the law as to existing uses be relevantly altered, then the applicant will be in a different position and the court could rescind or vary the order pursuant to s 70(3).

The Court was referred to Re Langton [1966] 3 All ER 576. These proceedings were brought by the Solicitor-General to restrain vexatious litigation. In granting the order Lord Parker CJ said:

However, ever since then it is perfectly clear that the litigant has been attempting to re-litigate, in one form or another, that very matter which was decided by REES, J., and by the Court of Appeal, who dismissed an appeal from the judge. I find it unnecessary to go through these proceedings in detail; there have been, following the original action, some ten actions over the last eight years. Those actions have taken various forms; they have taken the form of attempting to set aside the judgment of REES, J., on the ground that it was obtained by fraud; there have been attempts to re-litigate the matter by trying to set aside orders made in the proceedings by the registrar, and there has been a proceeding to set aside the order originally made, before all this litigation commenced, by DANCKWERTS, J., in 1957. Finally, action has been instituted claiming that all the judgments and orders of the court in all the preceding actions in the matter be set aside as being obtained by fraud. Some of these actions have been dismissed and are at an end. Others are in various stages, but it is perfectly clear that the litigant has been habitually and persistently and without any reasonable ground instituting vexatious legal proceedings in an attempt to re-litigate the matter which was fully dealt with in the first action. Looking at the whole history of this matter, the general character of the proceedings and the results, that conclusion is inevitable. [at 577]

The litigant appealed to the Court of Appeal. The Court dismissed the appeal affirming the judgment of Lord Parker. Sellers, L.J., said:

Lord Parker, C.J., said that,looking at the whole history, the general character of the proceedings and the results, the conclusion to which he came was inevitable. That is the view to which I must come equally. Nothing that has been said here could disturb it. ... It is very unfortunate that, instead of accepting the judgment of REES, J., the litigant has brought innumerable proceedings to try to undermine that decision so reached. His conduct is shown to be quite unreasonable and an abuse of the process of the court and quite intolerable for the parties whom he was suing. [at 578]

Closer to home the decision of Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 is helpful. Yeldham J was dealing with an application by the Council to declare Mr and Mrs Pedler to be vexatious litigants and for consequent orders. His Honour observed that s 84 of the Supreme Court Act was directed to the removal of abuses of the processes of the Court and the hardship to persons against whom vexatious proceedings are taken.

... 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 re-litigate 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. By way of example, I am of the view that the notice of motion filed on 18th August, 1975, and entituled in the original suit, to the terms of which I have referred, is undoubtedly the institution of a legal proceeding, and that it is vexatious. [at 488]

Yeldham J made the point (at 489) that the proceedings instituted by the Pedlers were 'foredoomed to failure, either as being hopelessly out of time or clearly based upon no legal foundation, and in many cases for both reasons. In my opinion, they were in every case an attempt to re-litigate, in one form or another the very matter which Hardie J had decided: see Re Langton'. His Honour held that the proceedings were vexatious and the requirements of s 84 established.

A definitive discussion of s 84 is to be found in the judgment of Roden J in Attorney-General v Wentworth [1988] 14 NSWLR 481. His Honour discussed the meaning of the word 'vexatious' commencing at p487. Roden J. traced the authorities through Re Vernazza [1960] 1 QB 197, Pedler, and Attorney-General for New South Wales v Solomon [1987] 8 NSWLR 667. He concluded that the preponderance of judicial opinion favoured an objective test (p491).

It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

(a) proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);

(b) the proceedings must have been "habitually and persistently" instituted by the litigant. (at 491)

It is important to note that in the instant case the Council relies only upon paragraph 3 - that the proceedings are so obviously untenable or manifestly groundless as to be utterly hopeless.

I find the subject proceedings to be untenable and completely groundless so as to be reasonably characterised as utterly hopeless. Accordingly, the litigation may be regarded as vexatious. The next question is whether the proceedings have been 'habitually and persistently' initiated. Roden J expressed the opinion that 'habitually' clearly suggested more than 'frequently' (at 492). 'Persistently', according to His Honour, 'suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness'. Roden J. was careful, however, not to attempt a definition that might be of universal application.

In my opinion, the history of the litigation since 1976 establishes that the applicant has habitually and persistently instituted vexatious proceedings. Certainly, he has demonstrated an unbending determination, coupled with stubbornness, to seek to re-litigate the precise issue determined by the Court of Appeal in 1988, with respect to which the High Court refused leave to appeal. Since that time he has failed to establish any existing use rights before Pearlman CJ in 1995 and, by virtue of lodging a fresh, and virtually identical development application, has brought the subject appeal. The present proceeding raises precisely the same issue as definitively determined by the Court of Appeal.

If this matter proceeded to hearing it is manifest that it must fail and be dismissed. In such circumstances, I would have no doubt that the applicant would then seek to re-litigate the same point again. It is evident that Mr Valassis believes that he has a legitimate grievance against the Council. The applicant has placed material before the Court that he has complained about the Council's actions concerning the subject premises (and that of its legal advisers) to, inter alia:

The applicant genuinely believes that he has been victimised and discriminated against by the Council. He has also complained about the conduct of a number of judicial officers, including the Chief Justice and 5 judges of the Court of Appeal. I mention these matters merely to underline the extent of the applicant's grievance with the Council over his desire to use the subject premises as a restaurant and his persistent belief that the premises have existing use rights notwithstanding his inability, over the past 20 years, to establish such rights before the Appeals Tribunal, the Court or the Court of Appeal.

In approaching the motion, and concluding that the Council has established the requirements of s 70(2) of the Court Act, I am acutely aware that such an order is drastic in its nature because it limits a citizen's right of access to the courts. However, I am more than satisfied that the applicant is seeking to re-litigate an utterly hopeless case and has habitually and persistently instituted vexatious proceedings in the court. In my opinion, the Council is entitled to the orders it seeks in paragraphs 2 and 3 of the Notice of Motion as amended.

Accordingly, it is unnecessary to consider the prayer in para 4 seeking to strike out the application as an abuse of process. The Court has inherent jurisdiction (or at the very least implied jurisdiction) to strike out an application as an abuse of process (Reichel v Magrath (1889) 14 App Cas 665 at 668, Lord Halsbury LC) followed in Larkin v The Official Trustee (Federal Court, unreported, Merkel J, 7 March 1996). It is plain that the continuance of the litigation would be unjustifiably vexatious and oppressive because it seeks to litigate anew the same issue which has already been disposed of by earlier proceedings. This is an abuse of process warranting dismissal of the application. However, since the Council has succeeded on its primary submission, no order need be made under para 4 of the motion. In addition, it is unnecessary to determine the objections in para 5 of the motion.

Mr Valassis has appeared on his own behalf. Beside wishing to acquaint the Court with his grievance, he has made a number of submissions. He says that these proceedings are unique and completely separate from the earlier proceedings. However, there is nothing unique or new in this application. It is precisely the same claim as has already been litigated. He says that the Court of Appeal was wrong because Bevillesta was irrelevant and he was not served with the notice of appeal and was thereby prejudiced. I cannot enter upon the appeal Court decision except to note that the High Court heard and refused an application for special leave to appeal. He says that Pearlman CJ wrongly refused to receive his evidence. I have read Her Honour's decision and agree with her ruling. The material sought to be relied on by the applicant in this appeal is substantially the same. Lastly, Mr Valassis denies he is vexatious and says that the Court's motion should not be determined until the hearing has been completed. In my view, this would be inappropriate given the identical nature of the proceedings and the material which Mr Valassis seeks to rely upon.

1. The applicant be declared a vexatious litigant subject to order No 2.

2. The applicant shall not, without the leave of the Court, institute proceedings in the Court against the South Sydney City Council which allege or depend upon the making good of an allegation that the premises known as 304A Chalmers Street Redfern is the subject of an 'existing use' under the Environmental Planning and Assessment Act 1979 and that these proceedings (10271 of 1996) not be continued without the leave of the Court.

3. The applicant is ordered to pay the respondent's costs of the motion and the application.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 10 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE P L STEIN AM.

DENNIS VALASSIS v. SOUTH SYDNEY CITY COUNCIL [1996] NSWLEC 232 (19 September 1996)

DENNIS VALASSIS v. SOUTH SYDNEY CITY COUNCIL [1996] NSWLEC 232 (19 September 1996)

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Cases Cited (1)

DENNIS VALASSIS v. SOUTH SYDNEY CITY COUNCIL [1996] NSWLEC 232 (19 September 1996)