THE COURT
1 Mr Donald Fuller believes that, during 2008/2009, he suffered loss and damage of some $144 million as a result of a lost opportunity to acquire a shareholding interest of about 10% in the fifth respondent, the Australian Agricultural Company Limited (AACo). This alleged loss and damage was sustained, so he believes, by the conduct of the various respondents in inflating the cattle inventory of AACo with "ghost" or, in other words, non-existent cattle.
2 Mr Fuller has given voice to this belief in litigation both in this Court and, before then, in the Supreme Court of Queensland. We detail below the history of that litigation. It suffices for the present to state that he has never enjoyed forensic success in respect of his claim. Mr Fuller would say, as indeed he put in his written submissions, that he has never had the benefit of a trial on the merits of his claim. This is true but there is a reason why there has never been a trial on the merits. The history of his litigation reveals that, though he has sought so to do repeatedly, he has never been able, by a pleading in conformity with governing rules of court, to translate his belief into a claim known to law.
3 Mr Fuller's latest attempt so to do was met by the 1st, 2nd, 4th to 7th, 9th, 10th, and 14th to 23rd and 25th to 28th respondents (the active party respondents) with an application for the following orders:
1 That the statement of claim be entirely struck out pursuant to Federal Court Rules 2011 (Cth) (FCR) r 16.21(1) because it:
(a) contains frivolous or vexatious material;
(b) further or alternatively, is likely to cause prejudice, embarrassment or delay in the proceeding; and
(c) further or alternatively, fails to disclose a reasonable cause of action or other cause appropriate to the nature of the pleading;
(d) further or alternatively, is an abuse of process of the court;
2 Further or alternatively, that the proceedings be dismissed.
3 Further or alternatively, that:
(a) pursuant to FCR r 6.02, the Applicant must not continue the proceeding or start or continue any other proceeding in the Court against any of the Respondents without the leave of the Court; and
(b) pursuant to FCR r 39.03(2), any further proceedings brought by the Applicant against the Respondents on the same or substantially the same cause of action or relief, if started or continued, be then stayed until the cost orders in WAD332 of 2012, WAD49 of 2012, and this proceeding are paid by the Applicant.
4 That costs be awarded in favour of the Respondents.
4 That application proved successful. On 19 December 2013, the Court (Barker J) made the following 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.
4. The applicant pay the respondents' costs of the proceeding, to be taxed if not agreed.
5 On 24 April 2014, Mr Fuller secured from the Court (Siopis J) orders which, materially, provided:
1. The applicant is granted leave to make an application for leave to appeal in respect of Order 3 and attendant costs order made by Barker J on 19 December 2013 in WAD 332 of 2012 (the vexatious litigant order).
2. The application for leave to appeal, and if leave is granted, the appeal be heard by the Full Federal Court at the same time.
3. The time for bringing the application for leave to appeal be extended until the date of the filing of the leave application.
4. Should the applicant succeed on his appeal against the vexatious litigant order, the time for filing an application for leave to appeal against Order 1 and Order 2 and attendant costs order made by Barker J on 19 December 2013 in WAD 332 of 2012 (the substantive orders), be extended until 14 days after the Full Federal Court has decided the application for leave to appeal and, if leave be granted, any appeal.
5. The application for leave to appeal against the vexatious litigant order must be served on the respondents.
6. The applicant's application dated 3 January 2014, so far as it seeks leave to commence a proceeding seeking leave to appeal against the substantive orders, is otherwise adjourned sine die.
6 Whether Mr Fuller required a grant of leave to make an application for leave to appeal or even leave to appeal against Order 3 of the orders made on 13 December 2013 is moot.
7 The point is not one which was raised before Siopis J but rather one which occurred to us in the course of reflecting upon how the provisions of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) which we mention below operate in the circumstances of this case. We raised the point both with Mr Fuller and the active party respondents in the course of submissions. Mr Fuller did not seek to take up the point. We understood that to be because he was aware that submissions made to us would be treated as if made on an appeal if there were a grant of leave. Counsel for the active party respondents fairly conceded that the intent of s 37AO(5) of the Federal Court Act, reproduced and discussed below, may well be that Mr Fuller was entitled to appeal as of right. His further submission was that, even if so, there was no merit in the appeal in any event.
8 The point is a novel one but generally relevant to practice and procedure under Part VAAA of the Federal Court Act, which is directed to the subject of vexatious proceedings.
9 Order 3 was expressed to have been made pursuant to s 37AO(2) of the Federal Court Act, which provides:
(2) The Court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;
(c) any other order the Court considers appropriate in relation to the person.
10 Insofar as Order 3 provided that Mr Fuller must not start any proceedings in the Court against any of the respondents, the particular foundation for it within s 37AO(2) of the Federal Court Act was in s 37AO(2)(b).
11 By s 37AO(5) it is provided that, "An order made under paragraph (2)(a) or (b) is a final order." Because it is expressly declared to be a final order, an order made under s 37AO(2)(b) is outside the requirement, flowing from s 24(1A) of the Federal Court Act, that leave to appeal must first be obtained in order to appeal against any interlocutory order. So far, it might be thought that this meant that Mr Fuller was entitled to appeal as of right against the prohibition in Order 3.
12 Insofar as the prohibition in Order 3 was expressly authorised by s 37AO(2)(b) of the Federal Court Act, that order was, to that extent, a "vexatious proceedings order" in terms of the definition of that term in s 37AM of the Federal Court Act. The effect of s 37AR(2) of the Federal Court Act is that a person subject to a vexatious proceedings order is permitted to apply to the Court for leave to institute a proceeding that is subject to such an order. Thus, the balance of Order 3, which required Mr Fuller to obtain leave from the Court before instituting any proceedings against any of the respondents, stated a position which flowed in any event from the operation of s 37AR(2) upon the making of a vexatious proceedings order. So viewed, this part of Order 3 was otiose.
13 That is not to say that the express imposition of the requirement to seek leave, found in Order 3, was necessarily beyond the Court's power. By s 37AO(2)(c) of the Federal Court Act, the Court may also make, "any other order the Court considers appropriate in relation to the person". Further, s 37AN of the Federal Court Act provides that Part VAAA of that Act, in which ss 37AM, 37AO and 37AR are found, "does not limit or otherwise affect any powers that the Court has apart from this Part to deal with vexatious proceedings". That means that, in dealing with a vexatious litigant, the Court's general power in respect of a matter in which it has jurisdiction to make such orders as the Court thinks appropriate, found in s 23 of the Federal Court Act, is not affected by Part VAAA. The Court had jurisdiction to entertain the application made by the active party respondents. Either or each of s 37AO(2)(c) or s 23 of the Federal Court Act would support imposition of the express requirement to seek leave found in Order 3.
14 Further, though s 37AR has a like effect, it is by no means impossible to see how there may be advantage both to Mr Fuller and the respondents in a requirement to seek leave being expressly stated in an order. The advantage lies not just in the express drawing of the requirement to Mr Fuller's attention but also in making it plain to him that the prohibition entailed in Order 3 is not absolute but admits of the possibility that, in the future, he might nonetheless, if satisfactory cause is shown, be permitted to institute a proceeding against the respondents.
15 We are inclined to the view that so much of Order 3 as required Mr Fuller to obtain leave from the Court before instituting any proceedings against any of the respondents was ancillary to the prohibition entailed in the order. That being so, the question becomes whether, as we have already intimated, Mr Fuller was, by s 37AO(5), entitled to appeal as of right against Order 3?
16 Acceptance of his being entitled to appeal as of right is complicated by the definitions of "institute" and "proceeding" found in s 37AM of the Federal Court Act. Section 37AM provides that the word "proceeding" has the meaning given to it by s 4 of the Federal Court Act, which is, "a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal". The word, "institute" is defined by s 37AM as follows:
"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 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.
17 One would ordinarily read the permissive statement, "The applicant may apply to the Court for leave to institute a proceeding that is subject to the order", found in s 37AR(2) of the Federal Court Act, informed by the definitions of both "institute" and "proceeding". There does not appear to be any warrant for ignoring the definition of "institute" because it refers to "proceedings", rather than "proceeding". Within these definitions, both the inclusion of an appeal in the definition of "proceeding" and the reference to the institution of an appeal in paragraph (d) of the definition of "institute" are to be noted. In terms of paragraph (d) of the definition of "institute", an appeal from a single judge is "started" by the filing of a notice of appeal: r 36.01(c), Federal Court Rules 2011 (Cth) (Federal Court Rules).
18 By this somewhat circuitous route, the position which is reached is that Mr Fuller did not require a grant of leave to seek leave to appeal. Rather, what he required was a grant of leave to file a notice of appeal so as to institute ("start") an appeal. Mr Fuller is, therefore, correctly termed an "applicant", rather than an "appellant". We have corrected the title of this proceeding accordingly.
19 Mr Fuller does not presently have the benefit of an order granting him leave to file a notice of appeal. While we do not, for the reasons given, accept that he was in law entitled to appeal as of right against Order 3, we would readily grant him leave to file a notice of appeal nunc pro tunc, deem his draft notice of appeal to be a notice of appeal filed in the Court and allow his appeal in the event that any of the grounds in his draft notice had merit. We consider that the interests of justice are best served in this case by considering his grounds on the merits as if an appeal had been regularly instituted. The active party respondents invited us to do as much.
20 The history of the litigation in this Court and, earlier, in the Supreme Court of Queensland, which forms the background to the orders which Mr Fuller seeks to challenge was accurately summarised by the primary judge in his reasons for judgment under the heading, "Background". It is necessary to set out that history so as to give context both to the reasons for the making of those orders and the submissions of the parties before us. The following chronology draws upon the summary offered by the primary judge.
27 March 2009: The 1st to 4th respondents filed a claim and statement of claim in the Supreme Court of Queensland, commencing a defamation proceeding, proceeding BS3234/2009, against the Mr Fuller.
30 March 2009: Mr Fuller filed in the Supreme Court of Queensland a document titled "Initial Response to the Claim".
15 April 2009: Mr Fuller filed in the Supreme Court of Queensland a document titled "Conditional Notice of Intention to Defend and challenges to jurisdiction and court location and counter-claim".
30 April 2009: The 1st to 4th respondents filed an application in the Supreme Court of Queensland seeking orders, inter alia, that the documents titled "Initial Response to the Claim" and "Conditional Notice of Intention to Defend and challenges to jurisdiction and court location and counter-claim" be struck out.
5 May 2009: Mr Fuller filed in the Supreme Court of Queensland a document titled "Amended Conditional Notice of Intention to Defend and Challenges to Jurisdiction and Court Location and Counter-Claim".
11 May 2009: In the Supreme Court of Queensland, P Lyons J heard the 1st to 4th respondents' application, together with an application that had been filed by Mr Fuller, and:
(i) granted the orders sought by the 1st to 4th respondents;
(ii) struck out the "Amended Conditional Notice of Intention to Defend and Challenges to Jurisdiction and Court Location and Counter-Claim"; and
(iii) ordered that Mr Fuller pay the 1st to 4th respondents' costs on each application.
6 July 2009: Mr Fuller filed an amended defence and counter-claim in the Supreme Court of Queensland.
24 July 2009: In the Supreme Court of Queensland, P Lyons J, on the application of the 1st to 4th respondents:
(i) struck out Mr Fuller's amended defence and counter-claim;
(ii) ordered that Mr Fuller have until 24 September 2009 to file any further amended defence or further amended defence and counter-claim, but be required to obtain leave first; and
(iii) ordered that Mr Fuller pay the 1st to 4th respondents' costs.
4 September 2009: The 1st to 4th respondents filed in the Supreme Court of Queensland a notice of discontinuance in respect of the defamation proceedings which they had instituted in that court.
10 September 2009: Mr Fuller filed in the Supreme Court of Queensland an application seeking leave to file a further amended defence and counter-claim.
18 December 2009: P Lyons J refused leave to the applicant to file a further amended defence and counter-claim and granted the 1st to 4th respondents leave to discontinue the proceedings in the Supreme Court of Queensland: Toms & Ors v Fuller [2009] QSC 415.
11 January 2010: Mr Fuller filed a notice of appeal against the orders made on 18 December 2009 in the Queensland Court of Appeal.
26 March 2010: On the application of the 1st to 4th respondents, the Queensland Court of Appeal ordered that Mr Fuller provide security in respect of the 1st to 4th respondents' costs of the appeal: Toms & Ors v Fuller [2010] QCA 73.
15 October 2010: The Queensland Court of Appeal ordered that the appeal from the judgment of P Lyons J be dismissed with costs: Fuller v Toms & Ors [2010] QCA 283.
9 February 2011: The High Court dismissed an application by Mr Fuller for special leave to appeal against the orders made by the Queensland Court of Appeal: Fuller v Toms & Ors [2011] HCASL 2.
29 July 2011: Mr Fuller filed in this Court's West Australian District Registry an originating application and statement of claim: proceeding WAD322/2011. The 1st to 25th respondents in the current proceeding were named as respondents.
19 August 2011: The Court (Barker J) ordered that the statement of claim be struck out and that Mr Fuller have until 2 December 2011 to lodge and serve any proposed statement of claim in substitution for that struck out, but be required to obtain leave first.
5 October 2011: Mr Fuller filed an interlocutory application seeking leave to file an amended originating application and a substituted statement of claim in the form annexed to a supporting affidavit made by him.
1 February 2012: The Court (Barker J) refused Mr Fuller leave to file the amended originating application and substituted statement of claim: Fuller v Toms [2012] FCA 27. At the same time it was ordered that the matter be re-listed on 10 February 2012 to enable the Court to hear from the parties as to what further orders should be made and in relation to costs.
16 February 2012: The Court (Barker J) ordered that:
(i) the application for leave to file the amended originating application and substituted statement of claim be dismissed;
(ii) the proceeding be entirely dismissed; and
(iii) Mr Fuller pay the "corporate respondents'" (being the 5th and 22nd respondents in the current proceeding) costs of the proceeding (including the interlocutory application): Fuller v Toms (No 2) [2012] FCA 103.
5 November 2012: Mr Fuller was refused leave to appeal against the Court's judgments of 1 and 16 February 2012 and ordered to pay the costs of the corporate respondents: Fuller v Toms [2012] FCAFC 155.
26 November 2012: Mr Fuller filed in this Court's West Australian District Registry the originating application and statement of claim in the current proceedings (WAD332/2012) in which the orders Mr Fuller seeks to challenge came to be made.
17 January 2013: The respondents filed an interlocutory application seeking, inter alios, that the statement of claim be struck out.
15 April 2013: The respondents' interlocutory application was heard by Barker J, along with an interlocutory application filed by Mr Fuller. Mr Fuller's interlocutory application sought leave to serve the 11th, 12th and 13th respondents by way of substituted service (although, on 9 April 2013, Mr Fuller advised the Court that he was no longer seeking substituted service on the 11th respondent). At the hearing Barker J indicated to the parties that he would first consider the respondents' interlocutory application and then, depending on the outcome of that application, would consider Mr Fuller's interlocutory application.
19 December 2013: Barker J made the orders set out above.
21 When, on 9 February 2011, the High Court (Heydon and Bell JJ) dismissed Mr Fuller's application for special leave to appeal against the judgment of the Queensland Court of Appeal, that court observed (at [3]) of the papers which he had filed in support of that application: "[They] are discursive and lacking in focus. That is particularly true of the 37 grounds in the draft Notice of Appeal." That same description might be applied to the Notice of Appeal and the related supporting affidavits and submissions upon which Mr Fuller seeks to rely in this matter.
22 The notice of appeal specifies the grounds of appeal in this way:
In General
1. There are many errors in the judgment which raise questions of law; many which raise questions of fact; and many which raise questions on a mixture of law and fact.
These include errors of avoidance/evasion/omission/subterfuge, half-truths, understatements, misstatements and misconstructions; and they are so intertwined that is seems artificial and pointless to try to classify many of them.
The judgment as a whole is very unreliable; it is false and misleading.
There are so many errors in the judgment, and such an overall lack of balance in it, that it all gives rise to an apprehension of bias; and it amounts to a miscarriage of justice.
2. The complete stating of grounds together with detailed particulars is set-out in my supporting affidavit sworn 3rd January 2014. See copy in Appendix A to my directly supporting affidavit for this application.
3. A shortened version of grounds for appeal is set out in Appendix B - the accompanying draft notice of appeal. The overall number of grounds and the essence of them remain the same.
[emphasis in original]
23 The amplification of these grounds in the appendices referred to in the notice of appeal is prolix. For example, "Appendix D", though it nominally consists of 23 paragraphs, is no less than 54 pages in length. Those 54 pages consist of an amalgam of alleged deficiencies in the primary judge's judgment and related submissions, cast in extravagant terms. The notice of appeal does not comply with the requirement, found in r 36.01(2)(c) of the Federal Court Rules 2011 (Cth), that a notice of appeal must state "briefly but specifically, the grounds relied on in support of the appeal".
24 The over-arching criticism (Appendix D, paragraph 3) which Mr Fuller makes of the judgment below is:
In very many instances the primary judge has improperly resorted to one or other of two divide-and-conquer subterfuges:
• Ploy No. 1: Focus on isolated small segment of pleadings;
Make an adverse ruling as though the contents of that section is the only pleadings on the particular point; then ignore the rest of the pleadings on that point.
• Ploy No 2: Focus on a large segment; find a diversionary small point or two to remark upon, good, bad or indifferent; then move on, and never again refer to the main subject matter in that large segment of pleadings. Just ignore it!
His greatest ploy even before beginning to consider my fresh statement of claim (my fresh pleadings), is to avoid/evade/omit practically all mention of my fresh Form 5 Application (my fresh claim) on which my fresh pleadings are necessarily founded.
[sic - emphasis and underlining in original]
25 Even though the intent of the order made by Siopis J on 24 April 2014 was that questions concerning Orders 1 and 2 of those made by Barker J on 19 December 2013 (striking out the statement of claim and dismissing the proceedings) be deferred until after the challenge to Order 3 (the vexatious litigant order) made that day had been resolved, it is inevitable, given that they formed one foundation for Order 3 and that all issues were heard together below, that some consideration must also be given to the merits of Orders 1 and 2.
26 We deal first with Mr Fuller's apprehended bias ground.
27 As the notice of appeal reveals, the occasion for the apprehension was said to be found in the way in which the reasons of the primary judge were cast. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 an apprehension of bias was alleged to be found in the defective way in which the reasons of an administrative tribunal were cast. In that case, that allegation overlapped with an allegation that the reasons were illogical or unreasonable. It was in that context that Gleeson CJ recalled, at [5], an observation which he and McHugh J had made in Minister for Immigration v Eshetu (1999) 197 CLR 611 at [40] that, to describe reasoning as illogical or unreasonable, may merely be an emphatic way of expressing disagreement with it. Even though there are a number of differences between administrative and judicial decision-making, the same could equally well apply to a criticism of the reasons of a judicial officer. Mr Fuller's notice of appeal and related appendices leave no room for doubting that his disagreement with the reasons for judgment of the primary judge is emphatic but to establish an apprehension of bias, rather more is needed than emphatic disagreement with those reasons. Instead, as Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated in Johnson v Johnson (2000) 201 CLR 488 at [11]:
It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
28 On their face, the reasons for judgment of the learned primary judge disclose nothing more or less than an endeavour to measure the statement of claim by reference to this Court's pleading rules, followed by consideration as to whether, in light of the conclusions reached in respect of the statement of claim and earlier litigation to which Mr Fuller and some at least of the present respondents were parties, an order under s 37AO of the Federal Court Act ought to be made. The pleading rules against which the primary judge was obliged to, and did, measure the statement of claim were the general pleading rule, rule 16.02 in the Federal Court Rules and, because of the particular case which Mr Fuller sought to advance, rules 16.42 and 16.43, which are respectively directed to the pleading of fraud, misrepresentation and the like and conditions of mind. The analysis which the primary judge made of the statement of claim by reference to these rules entailed neither of the "ploys" to which Mr Fuller adverted. To the contrary, it was a thorough and careful one. A description which P Lyons J gave in Toms v Fuller [2009] QSC 415 at [15] of Mr Fuller's further amended defence and counterclaim, considered in that case, "a mixture of narrative, often flamboyantly expressed, argumentative material, and evidence" might equally well apply to the statement of claim in this case. It does violence to the pleading rules set out above. It exhibits and repeats the same vices to which Mr Fuller's attention had already been drawn by an earlier decision of this Court: Fuller v Toms (No 2) [2012] FCA 103. The conclusions reached by the primary judge provide no basis for any reasonable apprehension of bias by a fair-minded lay observer. There is no substance in the apprehension of bias ground.
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, Senior [2001] VSC 269 at [28] per Ashley J, recently applied by analogy by Pagone J in Garrett v Commissioner of Taxation [2015] FCA 117 at [7] (Garrett v Commissioner of Taxation). 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.
30 The effect of Order 3 is to limit access by Mr Fuller to an exercise of the judicial power of the Commonwealth by this Court. Such access is an important civic right. When Mr Fuller initiated proceedings in this Court or, for that matter, earlier filed his defence and counterclaim in the Queensland Supreme Court, he was not seeking to consume a service, he was invoking a right to have relations between him and the respondents governed according to law by the judicial branch of government. Once this is understood, Mr Fuller is hardly to be criticised for once seeking, by an exercise of judicial power rather than extra-legal means, to resolve his grievance with the respondents. But an essential element of an exercise of judicial power is finality and to seek an exercise of that power is, once any lawfully available right of appeal has been exhausted, to submit to the final outcome of its exercise. Absent the element of finality, the repeated invocation of its exercise by a failed applicant or the repeated assertion of a failed defence by a respondent resisting execution of judgment could in either instance make an exercise of judicial power oppressive. Further, finality does not just resolve once and for all the immediate grievance; it is also conducive to maximising the availability to others of an exercise of judicial power. This point was recently made in the United Kingdom in a report prepared for the Judiciary of England and Wales at the request of the Master of the Rolls - The Judicial Working Group on Litigants in Person: Report, July 2013 at p 31:
Access to justice does not mean an unfettered access to the courts to pursue frivolous claims and applications. Justice involves a proportionate amount of time and resources being devoted to a particular case. Where the time and resources devoted to one case are disproportionate, that effectively denies parties in another case their fair and timely share; and hence denies them justice.
31 Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament, via the Vexatious Actions Act 1896 (UK) (59 & 60 Vict. C. 51), of a need for a power to effect just such a balance.
32 The primary judge considered that Mr Fuller was a person who, in terms of s 37AO(1)(a) of the Federal Court Act, had "frequently instituted or conducted vexatious proceedings in Australian courts". In reaching that conclusion, s 37AO(6) entitled his Honour to have regard to the following:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal;
(b) orders made by any Australian court or tribunal; and
(c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
33 In Garrett v Commissioner of Taxation, at [8], Pagone J observed of the word "frequently" in s 37AO that it, "has its ordinary meaning and is not given a specific statutory meaning for the purposes of s 37AO(1) (the former O 21, r 1 of the Federal Court Rules had imposed the higher threshold of the need to establish that vexatious proceedings had been conducted "habitually, persistently and without reasonable grounds")". We agree. As did Pagone J, we adopt as correct the following exposition offered by Perry J in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 (the HWY Case) of the meaning of that word as found in s 37AO(1)(a):
5.3.5 Were vexatious proceedings instituted or conducted by Mr Jarvie "frequently"?
110 Notwithstanding the seriousness of these matters, the power in s 37AO(1)(a) is enlivened only if it can be said that Mr Jarvie instituted or conducted vexatious proceedings "frequently". As Davies J explained in Attorney-General (NSW) v Wilson [2010] NSWSC 1008 at [11]:
"It would not be sufficient, therefore, to point to the fact that a litigant had instituted even a number of vexatious proceedings. If the adverb 'frequently' could not be used in connection with the sum of them, no order can be made under s 8. That is a significant matter because it is a serious thing to deprive litigants of their access to the courts, a right which might be thought to be an inherent right for persons living in a democratic society under the rule of law - see in that regard In Re Boaler [1915] 1 KB 21 at 34 and Re De W Kennedy (Finance) Pty Ltd v Ley (unreported - Supreme Court NSW, Holland J - 29 March 1978)."
111 Without detracting from the seriousness of the consequences of such an order, the use of the term "frequently" nonetheless imports a lesser test than that imposed by the predecessor provision in rule 6.02 which required that vexatious proceedings have been conducted "habitually and persistently". That test had been said to imply "more than great frequency", the word "[h]abitually suggest[ing] that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; 'persistently' suggest[ing] determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness": Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 Roden J.
112 The term "frequently" is a relative term and "must be looked at in the context of the litigation being considered": Attorney General (NSW) v Gargen [2010] NSWSC 1192 at [7] (Davies J); see also Attorney General (NSW) v Wilson [2010] NSWSC 1008 at [12]; Jones v Cusack (1992) 109 ALR 313 (Jones) at 315 (Toohey J), and Chan at [37]. Thus, the Court may find that a person has instituted or conducted vexatious proceedings "frequently" even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person: Fuller v Toms [2013] FCA 1422 (Fuller) at [77] (Barker J).
113 Thus in Fuller, for example, the applicant against whom a vexatious proceedings order under s 37AO was made had commenced five separate proceedings over a period of approximately five years. Having regard to the circumstances and the conduct of those various proceedings, Barker J was satisfied that the applicant had "frequently" instituted and conducted proceedings of the type contemplated by s 37AO notwithstanding that "the number of proceedings may be considered small". Similarly, in Jones, in determining whether the applicant had "frequently" instituted proceeding for the purposes of former O 63, r 6(1) of the High Court Rules, Toohey J held that the five proceedings initiated by the applicant during a six year period "readily answer[ed] that description".
114 In short, there being no numerical threshold prescribed by Part VAAA itself, the question of whether an applicant has "frequently" instituted or conducted vexatious proceedings for the purposes of s 37AO must be answered in the circumstances of the particular case.
[Emphases in original]
34 It will be noted that, in respect of the word "frequently", one of the authorities cited with approval both by Perry J in the passage just quoted from the HWY Case and adopted by Pagone J is the judgment of Barker J under present challenge. It necessarily follows from our approval of the exposition by Perry J in the HWY Case of the meaning of the word "frequently" that there is no error to be found in the approach of Barker J to its meaning. Nor is there error to be found in the conclusion reached by his Honour on the facts of this case. That was expressed in this way (at [79]):
While in Fuller v Toms [2012] FCA 27 at [88] (see also Fuller v Toms [2012] FCAFC 155 at [9]), I considered that the applicant's case against the respondents was not, on its face, necessarily hopeless at that point, subsequent events, including the pleading in this proceeding, demonstrate that the applicant is simply unable to plead a case against the respondents. Nonetheless, he continues to agitate the same claims in a succession of cases. The time has arrived at which the applicant should be restrained from recommencing a proceeding without leave of the Court.
35 The reasons for this conclusion are compressed but must be viewed against his Honour's recitation of the "Background" and his detailed analysis which he made of the statement of claim.
36 It is to be remembered that s 37AO(1)(a) of the Federal Court Act refers to both "instituted" and "conducted". The word "conducted" is not specially defined for the purposes of 37AO. The word "instituted" is, by s 37AM, specially defined in an inclusory way so as, materially, to include, "the taking of a step or the making of an application that may be necessary before proceedings can be started against a party".
37 The primary judge (at [77]), referred to five proceedings as having been instituted by Mr Fuller: the appeal to the Queensland Court of Appeal, the application for special leave to appeal to the High Court, proceeding WAD322/2011 in this Court, the appeal to the Full Court and proceeding WAD332/2012. Given the definition of "proceeding" in s 4 of the Federal Court Act, already referred to, the two appeals and the special leave application each fell within the definition of "proceeding". His Honour also referred (at [77]), as he was entitled by s 37AO(6) so to do, to the interlocutory applications which Mr Fuller had made in the Supreme Court of Queensland proceeding BS3234/2009. His Honour considered (at [77]) that, "while the number of proceedings may be considered small, the proceedings have generally been an attempt to re-litigate an issue determined against the applicant".
38 The pleading rules of the Queensland Supreme Court (see, in particular, r 149 and r 150 of the Uniform Civil Procedure Rules 1999 (Qld)) are not so different to those of this Court as to make the outcomes which Mr Fuller had experienced before P Lyons J, the Court of Appeal and the High Court irrelevant. Even prior to his institution of the first of the two original jurisdiction proceedings in this Court, Mr Fuller had well and truly been put on notice as to the inadequacies of his manner of pleading. That like inadequacies, flowing from the application of this Court's pleading rules, attended his manner of pleading was confirmed by the outcome before the Full Court in his earlier proceeding in this Court. Notwithstanding his earlier experiences, Mr Fuller persisted in that same manner of pleading and this in respect of issues already determined against him. A statement of claim may show that, having regard to earlier proceedings, a current proceeding has been "instituted" vexatiously. The filing and service of a grossly inadequate statement of claim, exhibiting like inadequacies to those already determined by earlier proceedings, may also show that a proceeding is being "conducted" vexatiously. When one looks at the history and fate of the litigation to which the primary judge referred, a conclusion that Mr Fuller had frequently instituted or conducted vexatious proceedings was not just reasonably open. It was the only conclusion correctly open.
39 The manner in which Mr Fuller has chosen to plead his notice of appeal shows that he is unable or unwilling to accept this.
40 The application for leave to file that notice of appeal so as to institute an appeal against Order 3 should be dismissed, with costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Logan and McKerracher.