Evidence Act 1995 (Cth), s 91
41 The terms of s 37AO(1)(a) of the Federal Court of Australia Act direct attention to whether a person has frequently instituted or conducted vexatious proceedings. The question is whether a proceeding is in fact a "vexatious proceeding" which is inclusively defined in s 37AM(1), and is a question for the Court to decide: see In re Vernazza [1960] 1 QB 197 at 208 (Ormerod LJ). In evaluating whether the Court is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals, the Court may have regard to orders of courts or tribunals in other proceedings, and the conduct of those proceedings, as s 37AO(6) expressly permits: Mathews at [103]; HWY at [102].
42 In Attorney-General (NSW) v Bar Mordecai [2005] NSWSC 142, which concerned an application under s 84(1) (since repealed) of the Supreme Court Act 1970 (NSW), Patten AJ stated at [5] -
It seems to me that I will need to form my own view about each piece of litigation relied upon by the Attorney General. In doing so, however, I believe that I am entitled to have regard to the result of the proceedings and, where appropriate, the findings of, and views expressed, by the various judicial officers who dealt with them.
43 For this proposition, Patten AJ cited a decision of the Victorian Full Court in Gallo v Attorney-General (Vic) (unreported, 4 September 1984) in which Starke J (Crockett J and Beach J agreeing), referring to the reasons of the primary judge (Gray J), stated -
I return then to the learned judge's findings in regard to this matter. He started by saying, at page 35 of the appeal book, this: "The gist of what the respondent submits is that, in each instance, the proceeding in question is a genuine proceeding brought to redress a genuine grievance or wrong. I was invited to make some investigation in detail of the cases, the subject matter of the application. However, I do not feel it necessary to do so on an application of this sort. It is sufficient for my purposes that in a large number of instances various judges and Masters of this Court have expressed opinions as to the vexatious character of the particular proceeding before them. It is perhaps desirable to make some detailed reference to the cases which fall into category one." He then dealt with those.
I might say, in parenthesis, that I agree with the learned judge that where an order has been made by a Judge or a Master dismissing an action as frivolous or vexatious, or striking a pleading out, it is not to go behind that order and, as it were, go into the merits of the argument as a court of appeal would.
44 The statement of Patten AJ in Bar Mordecai has been cited a number of times, including in Attorney-General (NSW) v Croker [2010] NSWSC 942 at [125] (Fullerton J), Attorney-General (NSW) v Wilson [2010] NSWSC 1008 at [22] (Davies J) and Teoh v Hunters Hill Council (No 8) at [50] (Beazley P, Emmett JA and Sackville AJA). In Teoh, the New South Wales Court of Appeal stated at [52]-[53] -
52. Section 6 [of the Vexatious Proceedings Act 2008 (NSW)] does not specify the matters that the court dealing with the application under the VP Act should take into account in determining whether particular proceedings were, for example, an abuse of the process of the court (s 6(a)) or instituted without reasonable ground (s 6(c)). There is nothing in the language of s 6 to indicate that a finding by the court in the earlier proceedings that they were an abuse of process or instituted without reasonable grounds is determinative on an application under the VP Act. Equally, there is nothing to indicate that a finding made or view expressed by the court in the earlier proceedings is to carry no weight on an application under the VP Act.
53. Ordinarily, the court that heard and decided the earlier proceedings will have been best placed to determine whether they were an abuse of process or instituted without reasonable grounds. It would be an odd result if such a determination simply has to be ignored by a court hearing an application under the [Vexatious Proceedings] Act. The oddity of the result is reinforced by the likelihood that an application under the [Vexatious Proceedings] Act would be prolonged if the findings made and views expressed in the earlier proceedings could not be taken into account. Indeed there would be a real risk that the court would be burdened with re-litigation of issues of the very kind that the legislation is designed to avoid
45 However, in Attorney-General (New South Wales) v Martin [2015] NSWSC 1372, Simpson J observed that the above passage in Teoh did not take account of s 91 of the Evidence Act 1995 (NSW), which is in the following terms -
Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
46 Simpson J held at [20] that whether judgments in other cases can be used to support an application for a vexatious proceedings order will depend upon an analysis of the facts that were in issue in the proceedings giving rise to each judgment and the findings of fact made in the judgments. Her Honour admitted into evidence and relied on several judgments where there was no fact in issue concerning the nature of the proceedings. However, her Honour concluded that several judgments in proceedings that were struck out as an abuse of process, or as failing to disclose any cause of action were, by reason of s 91, inadmissible to prove those facts, as they were regarded as facts in issue. On the other hand, Simpson J held that some judgments were admissible as evidence from which inferences might be drawn concerning the conduct of litigation, and reached her own conclusions in several instances that previous proceedings were vexatious. At [132]-[133] Simpson J stated -
132 Section 91 [of the Evidence Act] constitutes a considerable fetter on proof of the matters necessary to be proved in order to establish that proceedings are vexatious. Given that the Vexatious Proceedings Act has three important objectives - (i) to protect potential defendants against unwarranted litigation; (ii) to protect courts against abuse of their processes; and (iii) to ensure that valuable court time is available for litigation and resolution of genuine disputes, applications thereunder should not be impeded by fetters on the admissible evidence. In its application to the Vexatious Proceedings Act, s 91 is antithetical to those objects.
133 This is, in my opinion, a clear case for legislative reform. A simple amendment to the Vexatious Proceedings Act could exclude the operation of s 91 for the purposes of proof of the matters necessary to the making of orders.
47 In Attorney-General (New South Wales) v Mohareb [2016] NSWSC 1823 at [25], Schmidt J disagreed with the approach to the construction of s 91 adopted by Simpson J in Martin. Her Honour stated at [26]-[32] -
26 The term "finding of fact" is not defined in the Evidence Act. While issues which arise for resolution in particular proceedings will very frequently depend on findings of fact made on the evidence, not every finding made, or conclusion reached on matters in issue involves a finding of fact. In some cases they involve the resolution of questions of law and often, the resolution of questions of mixed fact and law.
27 As discussed in Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 at 395 whether "facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law". So, too, I consider, are questions which arise under Rule 13.4 of the UCPR, as to whether particular proceedings either generally, or in relation to any particular claim, are "frivolous or vexatious", or disclose "no reasonable cause of action", or involve "an abuse of the process of the court". If not questions of law they are at least mixed questions of law and fact.
28 The judgment which her Honour refused to admit was one where in issue was the question of whether proceedings brought in the Land and Environment Court were vexatious and frivolous, had no reasonable cause of action and were an abuse of process. The conclusion which the Commissioner came to, rested on facts found, but the decision was not sought to be tendered in the vexatious proceedings in order to prove the existence of facts that were in issue in the Land and Environment Court proceedings.
29 Rather, the decision was tendered to prove that Mr Martin was a party to the proceedings; that they had been dismissed; that this had been the result of the conclusions reached by the Commissioner, that the proceedings would be vexatious and frivolous if they were to proceed further; that there was no reasonable cause of action; and that they involved an abuse of process.
30 As found in Teoh, decisions of that kind are admissible in proceedings brought under the Vexatious Proceedings Act. Views expressed in such decisions are not binding, but they are relevant to what arises to be decided in proceedings under that Act, not because they are tendered in order to prove the existence of a fact that was in issue in the earlier proceedings, but rather, to establish the fact that the earlier proceedings existed, that the defendant was a party to them, how they were resolved and in some cases, the views the presiding judge expressed on matters which also fall within the definition of "vexatious proceedings". That term is defined in s 6 of the Vexatious Proceedings Act to include:
"(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose."
31 All of those matters also involve questions of law. They must certainly be decided on facts found, but conclusions reached in the earlier proceedings on those questions are not themselves "findings of fact". Nowadays, given obligations such as those imposed by s 56 of the Civil Procedure Act 2005 (NSW), conclusions that particular proceedings, or an aspect of them, involve an abuse of process; were instituted or conducted in a way so as to harass or annoy, to cause delay or detriment, or for another wrongful purpose; or were instituted or pursued without reasonable ground, are not infrequently reached in judgments given both at interlocutory and final stages of the proceedings.
32 That does not render such judgments inadmissible under s 91 of the Evidence Act, in later proceedings, including those brought under the Vexatious Proceedings Act, unless the judgment is sought to be tendered to prove the existence of a fact that was in issue in the earlier proceeding. If tendered to establish the existence of the proceedings, who the parties were and how a question of law, or a question of mixed fact and law, was resolved in those proceedings, s 91 does not render the judgment inadmissible.
48 Any division of opinion between Simpson J in Martin, and Schmidt J in Mohareb is no longer an issue in New South Wales, because as Simpson J had suggested in Martin at [133], s 8(2) of the Vexatious Proceedings Act 2008 (NSW) was amended with effect from 20 February 2018 by the addition of paragraph (c), so that s 8(2) of the New South Wales Act now provides -
For the purposes of subsection (1), an authorised court may have regard to:
(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and
(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section), and
(c) evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995.
49 No corresponding amendment has been made to s 37AO(6) of the Federal Court of Australia Act, which is set out at [4] above.
50 In Attorney-General (Victoria) v Garrett (2017) 51 VR 777, McDonald J considered the applicability of s 91 of the Evidence Act 2008 (Vic) to the admissibility of evidence to be relied upon in an application for a general litigation restraint order under the Vexatious Proceedings Act 2014 (Vic). The Supreme Court of Victoria is empowered by s 29(1) of the Victorian Act to make a general litigation restraint order against a person if it is satisfied that "the person has persistently and without reasonable grounds commenced or conducted vexatious proceedings". Section 29(2) of the Victorian Act is in the following terms -
(2) In determining whether it is satisfied of the matters specified in subsection (1), the Supreme Court may take into account any matter it considers relevant, including but not limited to any of the following -
(a) any proceeding commenced or conducted by the person, or an entity controlled by the person, in any Australian court or tribunal;
(b) the existence of any order made by an Australian court or tribunal against the person, or an entity controlled by the person, including -
(i) a litigation restraint order; or
(ii) an acting in concert order; or
(iii) a vexatious proceeding order;
(c) any other matter relating to the way in which the person conducts or has conducted litigation.
51 McDonald J referred to many of the New South Wales authorities: Attorney-General (NSW) v Chan [2011] NSWSC 1315 (Adamson J); Attorney-General (NSW) v Martin [2015] NSWSC 1372 (Simpson J); Attorney-General (NSW) v Potier [2014] NSWSC 118 (McCallum J); and Attorney-General (NSW) v Mohareb [2016] NSWSC 1823 (Schmidt J). McDonald J also cited Victorian authority that preceded the commencement of the Evidence Act 2008 (Vic). In Kay v Attorney-General (Vic) (2000) 2 VR 436, which concerned an application under the now-repealed provisions of the Supreme Court Act 1986 (Vic), Ormiston JA stated at 437-8 -
... but I would not wish it to be thought that, in every application of this kind under s 21 of the Supreme Court Act 1986, it was necessary to re-examine the circumstances of each proceeding upon which the Attorney-General might seek to rely to support the making of an order. If the proceedings relied upon are frivolous, vexatious or otherwise of a kind which would support the making of the order, then that ordinarily should be apparent upon a reading of the reasons and orders and, if it is not, there will be usually no sensible basis for relying upon them, except to the extent that they may form part of a relevant chain of events. The learned judge, primarily I would gather from a sense of fairness and in an attempt to discover why the applicant said that the order should not be made, went somewhat further into the reasons for the various orders, the circumstances that lay behind them and what may now be thought to be the applicant's unreasonable attacks upon them. On other occasions, therefore, examination in such detail may properly be seen to be unnecessary, for the procedure is not to be treated as the opportunity for a second line of appeal against judgments or orders upon which reliance is placed for the making of an order under s 21.
52 McDonald J accepted that the approach of Ormiston JA had been followed in subsequent Victorian cases, including by Ashley J in Attorney-General (Vic) v Horvath, Senior [2001] VSC 269, where Ashley J held at [28] that the "critical evidence" is to be found in court files -
It is one thing to know what the word "vexatious" means. It is another thing to apply s 21(2) [of the Supreme Court Act 1986 (Vic)] to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results.
[Citations omitted]
53 In this Court, the above passage has been cited by Stone J in Soden v Kowalski [2011] FCA 318 at [51], by Bromberg J in Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833; 282 ALR 56 at [16], and by Pagone J in Garrett v Commissioner of Taxation [2015] FCA 117; 147 ALD 342 at [7], who stated that the passage was "a useful reminder of the focus of attention". The passage was also cited by the Full Court (Besanko, Logan and McKerracher JJ) in Fuller v Toms [2015] FCAFC 91; 234 FCR 535 at [29], where the Full Court held that a vexatious proceedings order precluded the applicant from appealing the vexatious proceedings order itself without leave of the Court, which leave the Court refused. At first instance, Barker J had made the following three orders -
1. The statement of claim filed in this proceeding be entirely struck out.
2. The proceeding be dismissed.
3. Pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth), the applicant must not start or continue any other proceeding in the Court against any of the respondents without the leave of the Court.
54 The Full Court stated that orders 1 and 2 were part of a "given" against which any challenge to order 3 had to be decided -
29 Though it was necessary, for the purpose of dealing with the apprehended bias ground, that we make some observations in relation to the reasons for the making of Orders 1 and 2, it is neither necessary nor appropriate for us, in the context of a challenge to Order 3, further to descend into the merits in respect of the making of those orders: Attorney-General (Vic) v Horvath [2001] VSC 269 at [28] per Ashley J, recently applied by analogy by Pagone J in Garrett v Federal Commissioner of Taxation (2015) 147 ALD 342 at [7] …. Rather, they form part of a given against which must be decided whether or not there was occasion, as the primary judge found, for the making of the order under s 37AO of the Federal Court Act.
55 Returning to Attorney-General (Victoria) v Garrett, at [22]-[23], McDonald J concluded that s 91(1) of the Evidence Act was a codification of the common law principles which underlay the statements of Ormiston JA in Kay, and of Ashley J in Horvath, and that s 91(1) of the Evidence Act did not preclude the admission into evidence of judgments and orders as being relevant to the question whether, for the purposes of the Victorian legislation, a person had persistently and without reasonable grounds conducted vexatious proceedings -
22 I have concluded that the judgments of Ormiston JA in Kay and Ashley J in Attorney-General (Vic) v Horvath, Senior although preceding the enactment of s 91 of the Evidence Act, correctly state the test for the admissibility of evidence to be relied upon in an application for a general litigation restraint order. A judge hearing a general litigation restraint order application must make an independent determination of whether an individual has commenced and/or conducted vexatious proceedings. In doing so, a judge is entitled to have regard to court orders and reasons for judgment in proceedings which are relied upon by the applicant for the order. Insofar as judgments and court orders record findings as to the nature of proceedings (such as whether the proceedings should be dismissed as an abuse of process), this is a finding of mixed fact and law. Section 91 does not operate to preclude reasons for judgment and orders in respect of such proceedings from being admitted into evidence in support of an application for a general litigation restraint order.
23 Section 91(1) of the Evidence Act codifies a long-standing common law principle that findings of fact in one judgment are inadmissible in a subsequent proceeding as against a non-party to the prior proceeding, except, where relevant, to ascertain the parties to those proceedings and the issues raised in the litigation as disclosed in the reasons for judgment. The judgments in Kay and Horvath preceded the enactment of s 91 of the Evidence Act. However, the admissibility of the judgments and orders relied upon in those proceedings was subject to a common law principle relevantly indistinguishable from the terms of s 91(1). Further, there is a substantial body of authority in respect of s 21(2) of the Supreme Court Act 1986 which has applied the reasoning of Ashley J in Horvath subsequent to the enactment of s 91 of the Evidence Act 2008. These judgments include the judgment of the Court of Appeal in Slaveski v Attorney-General (Vic) [2013] VSCA 165 [29].
24. Further, when the Vexatious Proceedings Act 2014 was enacted, s 21(2) of the Supreme Court Act 1986 was of long standing. There is nothing in the terms of the Vexatious Proceedings Act, nor the parliamentary materials accompanying its enactment, which supports the conclusion that Parliament intended that the threshold for declaring an individual a vexatious litigant would be more onerous under the Vexatious Proceedings Act than under s 21 of the Supreme Court Act 1986. To the contrary, s 29(2) broadens the range of matters to which the court may have regard for the purposes of being satisfied whether a general litigation restraint order should be made. The court may take into account any matter it considers relevant. The legislative intention to broaden the material which may be taken into account by the court is reflected in the second reading speech which accompanied the passage of the Vexatious Proceedings Act through Parliament.
56 I pause to observe that one must be careful before treating any provision of the Evidence Act as a codification of a corresponding common law principle. In Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, at [10], Gleeson CJ and Hayne J observed in relation to the New South Wales Evidence Act -
It is clear from the language of the Act, and from its legislative history, that it was intended to make, and that it has made, substantial changes to the law of evidence in New South Wales. Similar legislation has been enacted by the Parliament of the Commonwealth. Section 9 of the Act provides that it does not affect the operation of the common law except so far as the Act provides otherwise expressly or by necessary intendment. Even so, the sections of the Act relevant to this case undoubtedly make express provision different from the common law. It is the language of the statute which now determines the manner in which evidence of the kind presently in question is to be treated …
57 In Attorney-General (Victoria) v Garrett, McDonald J then set out a passage from the second reading speech of the Attorney-General in the Legislative Assembly of the Victorian Parliament and concluded as follows at [26] -
26 My conclusion that:
• section 91(1) codified a long-standing common law principle;
• there was a long history of the Supreme Court having regard to judgments and orders when determining vexatious litigation applications, including applications heard subsequent to the enactment of s 91(1); and
• that the Vexatious Proceedings Act and the materials accompanying its passage through Parliament manifest a clear legislative intention to expand the range of matters which can be taken into account by a court informing the requisite satisfaction that an individual has commenced and/or conducted vexatious proceedings
supports a finding that the Court is not precluded by s 91(1) of the Evidence Act from admitting into evidence, judgments and orders relevant to the question of whether a person has persistently and without reasonable ducted vexatious proceedings.
58 In King v Muriniti [2018] NSWCA 98; 97 NSWLR 991, the question before the New South Wales Court of Appeal was whether a finding in a proceeding between parties that an appeal was hopeless could be relied upon in an application for a personal costs order against the legal practitioners for the unsuccessful appellant, or whether s 91 of the Evidence Act precluded such reliance. Basten JA, with whom Gleeson JA agreed, held that s 91 was not engaged in those circumstances, principally on the ground that the jurisdiction to award costs against the legal practitioners was exercised in the proceeding between the original parties, and that the power is engaged upon it appearing to the Court that costs were incurred on a particular basis, and that there was no need to rely upon findings in the judgment, which could simply be repeated in the costs ruling (see [37]-[39]). In the course of his Honour's reasons, Basten JA considered the potential application of s 91 of the Evidence Act to judgments of another court that were sought to be tendered in applications for vexatious proceedings orders. At [30], Basten JA referred to the decision of Simpson J in Martin, and then cited Teoh at [53] (set out at [44] above), before stating at [31]-[32] -
31. What might well have been divined from that (undoubtedly accurate) statement was that the purpose and structure of the Vexatious Proceedings Act, to say nothing of the language of s 8(2) as it then stood, was inconsistent with the operation of s 91 of the Evidence Act, in relation to applications for vexatious proceedings orders. It was an available conclusion that that level of inconsistency could properly be resolved by treating the later statute (the Vexatious Proceedings Act), which also had a specific operation with respect to a defined class of proceedings, as impliedly repealing (or, more precisely, withdrawing the operation of) the Evidence Act, s 91, in relation to those proceedings. Such an approach to statutory construction would be consistent with that adopted in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 24; [2018] HCA 4.
32. In the later decision of Attorney General for the State of New South Wales v Mohareb, Schmidt J disagreed with Simpson J in Martin, stating that s 91 was not engaged at all. In the view of Schmidt J, the decision of the Commissioner of the Land and Environment Court, rejected in Martin, was not tendered "to prove the existence of facts that were in issue in the Land and Environment Court proceedings", but rather to prove that the defendant was a party to the proceedings, that they had been dismissed, and "that this had been the result of the conclusions reached by the Commissioner, that the proceedings would be vexatious and frivolous if they were to proceed further". However, that view disregards the extent to which s 91 is based on the exclusion of hearsay and opinion evidence.
59 In addition to referring to the possible inconsistency between s 91 of the Evidence Act and the Vexatious Proceedings Act, Basten JA identified two other considerations that should be mentioned. First, s 93 of the Evidence Act provides that Part 3.5, of which s 91 forms part, does not affect the operation of the law relating to res judicata or issue estoppel. In litigation between the same parties, an issue estoppel may arise in relation to a finding of fact or law upon a final judicial decision: Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at [21]-[22]. The decision of the New South Wales Court of Appeal comprising Allsop P, Tobias JA and Handley AJA in Macatangay v New South Wales (No 2) [2009] NSWCA 272 supports the view that a decision to dismiss a proceeding as an abuse of process is not a final decision for the purposes of the doctrine of issue estoppel. This decision has particular weight, noting that Handley AJA was the author of Spencer Bower and Handley, Res Judicata (4th edition, LexisNexis, 2009).
60 Second, s 91 of the Evidence Act is qualified by s 190, which provides (inter alia) -
…
(3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if:
(a) the matter to which the evidence relates is not genuinely in dispute, or
(b) the application of those provisions would cause or involve unnecessary expense or delay.
(4) Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account:
(a) the importance of the evidence in the proceeding; and
(b) the nature of the cause of action or defence and the nature of the subject matter of the proceeding; and
(c) the probative value of the evidence; and
(d) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
61 As to the discretion in s 190(3)(b) of the Evidence Act, in Martin, Simpson J at [21]-[22] declined to exercise it on the ground that the facts sought to be proved by the evidence were fundamental to the issues to be determined, and that the considerations referred to in s 190(4)(b), (c) and (d) militated against the use of s 190(3)(b). In King v Muriniti, Basten JA observed at [22] that in the case before the Court, if the legal practitioner's argument in reliance on s 91 were accepted, he would be entitled to reopen the whole of the proceedings recently determined by the Court with the possible consequence of inconsistent findings. Basten JA stated that although that event did not appear to be contemplated by s 190(3), it would be surprising if the rules of evidence, as set out in the Evidence Act, were to be read as undermining the inherent power of a court to prevent an abuse of its processes.
62 A related point arises in circumstances such as those of the present case. One emanation of frivolous, vexatious litigation amounting to an abuse of process which is often found is attempted relitigation: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [7] (Perram J). It would be a surprising result if, in the context of an application for a vexatious proceedings order, the respondent to the application could relitigate those proceedings forming the foundation for the application. It would be even more surprising if a respondent to an application for a vexatious proceedings order could relitigate an earlier finding of attempted relitigation.
63 The question of the effect of the cognate Northern Territory provision, s 91 of the Evidence (National Uniform Legislation) Act 2011 (NT), arose in Registrar of the Supreme Court (NT) v Jenkins [2019] NTSC 51, which concerned an application for a vexatious proceedings order under s 7 of the Vexatious Proceedings Act 2006 (NT). Section 7(2) of the Northern Territory Act provides that for the purposes of satisfying the criterion in s 7(1) that a person has "frequently instituted or conducted vexatious proceedings in Australia" -
… the Court may have regard to:
(a) proceedings in any court or tribunal, including proceedings instituted before the commencement of this section; and
(b) orders made by any court or tribunal, including orders made before the commencement of this section.
64 Southwood J held that all of the reasons for judgment, and orders, and transcripts of other proceedings involving the respondent to the application that were annexed to the affidavits that were before the Court were admissible. Southwood J cited the decision of Simpson J in Attorney-General (NSW) v Martin, the decision of Schmidt J in Attorney-General (NSW) v Mohareb, and the decision of McDonald J in Attorney-General (Victoria) v Garrett. At [35], Southwood J expressed agreement with the approach of McDonald J in Garrett, and stated that it was supported by s 7(2)(b) of the Northern Territory Act, which I have set out above.