Supreme Court of WA|2003-10-31|Before: Heenan J

Granich Partners v Yap [2003] WASC 206 (31 October 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GRANICH PARTNERS -v- YAP [2003] WASC 206

Vexatious Proceedings Restriction Act (2002) - Application for leave to declare respondent a vexatious litigant - Criteria for leave to be granted to private applicant - Application to High Court of Australia for special leave to appeal - Appeal to Full Court Federal Court of Australia - Relief available only in respect of proceedings in courts or tribunals of Western Australia - Relevance of conduct of proceedings in federal jurisdiction - Limited interest of applicants - Limited restriction on commencing new proceedings

Order prohibiting the commencement of proceedings against the applicants by the respondent in a court or tribunal of this State without leave granted under s 6 of the Vexatious Proceedings Restriction Act (2002)

Attorney General v Hunter [2002] WASC 189

Barlow v North Fremantle Municipality (1937) 39 WALR 89

1 EM HEENAN J: By a notice of originating motion, the applicant firm of solicitors is seeking leave to bring an application under s 4(1)(d) of the Vexatious Proceedings Restriction Act (2002) to have the respondent declared a vexatious litigant. The orders which the court may make under s 4(1) or (2) are one, or both, of the following:

"(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by the respondent; and/or

(d) an order prohibiting that person from instituting proceedings, or proceedings if a particular class, without leave of a court or tribunal, as the case requires under s 6(1)."

2 Neither in the originating motion, nor in the written or oral submissions filed by the applicants, is an order staying any pending proceedings sought. Consequently, the relief being sought is solely an order prohibiting the respondent from instituting proceedings, or a particular class of proceedings, without leave of a court or tribunal. This is of some significance because, as I was informed by the respondent during argument, there are no proceedings presently pending by the respondent against the applicants in any court or tribunal of this State. The large number of actions, appeals or applications of various kinds which have prompted this application have now been concluded or are no longer being pursued.

3 There are, however, two other matters currently on foot. The first is an application by the respondent to the High Court of Australia for special leave to appeal from a decision of the Full Court of this State in Yap v Granich & Associates [2002] WASCA 330. The second is an appeal presently pending in the Full Court of the Federal Court of Australia against a decision of Federal Magistrate McGuiness of 30 October 2002 dismissing the respondent's application to annul a bankruptcy order and for associated orders. Both the pending application for special leave to appeal to the High Court of Australia, and the pending appeal to the Full Court of the Federal Court of Australia involve steps taken by the respondent in other courts and in the exercise of federal jurisdiction conferred by legislation of the Commonwealth. For reasons which are set out below, no order which might be made on the present application could, or would, directly apply to those proceedings in the federal jurisdictions.

4 The course of litigation which has led to this present application has its genesis in an action brought by an unrelated party, P Vivante & Company Pty Ltd ("Vivante"), against the respondent in 1989 claiming moneys due under a deed and seeking judgment for $39,034.17 plus interest. Vivante obtained judgment in default of appearance against the respondent in that action (1536 of 1989) on 10 April 1989 and then issued execution. After a lengthy history which need not be described, the respondent obtained an order from a Registrar of the District Court of Western Australia on 23 June 1993 setting aside the default judgment and granting leave to defend on condition that the respondent should pay into court a sum of $39,000 within 14 days, failing which the plaintiff had liberty again to enter judgment on the claim. Being aggrieved with this decision, the respondent applied for an extension of time to appeal to a Judge of the District Court and sought an order granting her unconditional leave to defend the claim. That application was refused by Viol DCJ on 21 August 1992. As the respondent had not paid the $39,000 into court as required by the Registrar's order, judgment was then re-entered against her which, including interest, was then for the sum of $54,990.17 plus costs. A subsequent application by the respondent for leave to appeal to the Full Court against the dismissal by Viol DCJ of the application to extend time to appeal and for an order granting unconditional leave to defend was dismissed on 10 June 1993 (Library No 930339).

5 The overall result, therefore, was that in those proceedings a judgment for $54,990.70 plus costs was entered against the respondent in the District Court. She was also ordered to pay the costs of her unsuccessful application for leave to appeal to the Full Court.

6 In the course of the Vivante litigation, the respondent engaged the present applicant firm of solicitors, but not until after the Registrar of the District Court had set aside the first default judgment and granted leave to defend, conditional on the respondent paying the sum of $39,000 into court within a fortnight. The applicant solicitors were, thereafter, acting for the respondent on her application for an extension of time to appeal and on the proposed appeal to Viol DCJ against the decision of the Registrar refusing unconditional leave to defend. The respondent later commenced an action against the applicant solicitors, alleging negligence and breach of professional duty in failing adequately to obtain material evidence for use in support of the proposed appeal to Viol DCJ against the order granting conditional leave to defend, and in failing adequately to represent her and put her case in connection with that appeal and the associated application for an extension of time.

7 That action against the applicant solicitors was tried before Commissioner Martin QC in the District Court on 7 May 1996 and the respondent's claim was dismissed. The learned Commissioner found that the respondent's grievances against the applicant firm in relation to the preparation of affidavits, the lapse of time in applying to set aside judgment and other matters were completely without merit and, in any event, that the alleged complaints did not cause any loss by the respondent.

8 Following the dismissal of her action against the applicant solicitors, the respondent instituted an appeal to the Full Court of this Court. That appeal was eventually dismissed for want of prosecution on 21 July 1997 after numerous applications to amend the notice of appeal. The history of those proceedings in the Full Court can be found in the reasons for decision dismissing the appeal - Yap v Granich & Associates, unreported; FCt SCt of WA; Library No 970487; 21 July 1997 (published 26 September 1997).

9 The respondent then sought special leave to appeal to the High Court of Australia from the decision of the Full Court. That application was brought long out of time but came on for hearing before McHugh and Kirby JJ on 22 October 1998. There were additional procedural irregularities but, in refusing an extension of time to file an application for special leave to appeal and in dismissing the application, McHugh J, with the evident approval of Kirby J, observed that the application for special leave to appeal appeared to be entirely devoid of merit.

10 The next series of steps was that Mrs Yap brought three successive applications in the District Court in Action No 6202 of 1993 (the action which had been determined by the judgment of Commissioner Martin QC) seeking various relief, including a retrial on the grounds of alleged fresh evidence. Those applications were dismissed by Wisbey DCJ in December 2001, by Commissioner Greaves in March 2002 and by Williams DCJ in April 2002.

11 The respondent then applied by an originating motion to the Full Court seeking a rehearing of District Court Action No 6202/93 in what was in substance an appeal from one or more of the decisions of the District Court refusing this relief. That application came on for hearing before the Full Court in August 2002 and was heard by Wallwork, Murray and Parker JJ who, by judgment dated 4 December 2002, dismissed the application for a rehearing of the District Court action - Yap v Granich & Associates [2002] WASCA 330.

12 The respondent has since lodged an application to the High Court of Australia for special leave to appeal from this last decision of the Full Court which refused to order a rehearing of her action against the applicant. This application for special leave is still pending.

13 As a result of Mrs Yap's unsuccessful claim against the applicant firm for alleged negligence, she was ordered to pay the costs of those proceedings. These were taxed in the amount of $29,790.45 and, by October 1997, interest had accrued on that liability in the amount of $3,393.66, making a total debt due by the respondent to the applicant solicitors of $33,184.11. On 11 October 1997 the applicant firm caused a bankruptcy notice to be served on Mrs Yap requiring payment of that sum. This was the beginning of another long series of applications and appeals in the Federal Court and in the Federal Magistrate's Court in bankruptcy proceedings.

14 After five previous adjournments the bankruptcy petition came on for hearing before District Registrar Jan in the Federal Court of Australia in Perth on 10 December 1998. Registrar Jan refused an application for a further adjournment and made a sequestration order against the estate of the respondent on the applicant's petition.

15 On 16 December 1998 Mrs Yap sought an annulment of the sequestration order by filing a motion in the Federal Court. That eventually came on for hearing before French J on 26 July 1999. The grounds upon which the annulment of the sequestration order was sought involved an allegation of fraud in relation to the proceedings giving rise to the judgment debt upon which the petition was based. In his reasons for decision (at [32]) French J observed:

"Where a judgment has followed a full investigation at trial in which both parties participated, the court will not reopen the matter unless a prima facie case of fraud or collusion or miscarriage of justice is made out - see Miles v The Shelf Co of Australia (unrep, Fed Court, Sundberg J, VG 7474 of 1997). In a case in which the relevant judgment flows from a trial before another court and the appeal process has been exhausted, it is a rare case in which the court will go behind the judgment. The position is not quite as restrictive in the case of a default judgment."

French J dismissed the motion for review and annulment of the sequestration order by his decision of 30 July - Granich & Associates v Yap Chang See [1999] FCA 1039.

16 The respondent, Mrs Yap, then appealed to the Full Court of the Federal Court of Australia against the dismissal of her motion for review and annulment of the sequestration order again alleging that she had grounds which would entitle the court to go behind the judgment upon which the petitioner had relied. That appeal was heard on 29 November 1999 by a Full Court comprising Spender, Whitlam and Carr JJ and dismissed. The Full Court of the Federal Court concluded that French J was right to refuse to go behind the original judgment in view of the course which the proceedings had followed in the District Court of Western Australia, the Full Court of the Supreme Court of Western Australia and in the High Court of Australia.

17 Undeterred by this lack of success in the Federal Court, the respondent Mrs Yap made another application for annulment of the bankruptcy again alleging fraud in the prior proceedings which led to the judgment on which the act of bankruptcy was based. The present applicant, as respondent to this new application, applied to strike out this second application for annulment on the basis that it was precluded by the earlier decisions. That application came on for hearing in the Federal Court before Nicholson J on 2 May 2001 and his Honour dismissed Mrs Yap's application by his decision of 28 June 2001 - Yap v Granich & Associates [2001] FCA 799. The reasons for decision of Nicholson J contain another summary of the ever extending history of the proceedings between these parties and concluded that there was no basis for the Federal Court to look behind the earlier judgments for the purpose of deciding whether or not the sequestration order should be set aside unless the applicant could satisfy the court that the judgment was obtained by fraud. The respondent's submissions in relation to fraud were then considered and rejected.

18 The decision of Nicholson J to dismiss the respondent's second application for annulment of her bankruptcy, prompted another appeal to the Full Court of the Federal Court of Australia by Mrs Yap. However, after analysis, the Full Court considered that the application should be treated as an application for leave to appeal. The application was heard by a Full Court comprising North, Merkel and Gyles JJ on 29 November 2001 and was dismissed - Yap v Granich & Associates [2001] FCA 1735.

19 Undeterred by these reverses, Mrs Yap made a third application for an annulment of the sequestration order in the Federal Court. This was transferred to the Federal Magistrate's Court by order of the Federal Court on 2 September 2002 and was heard before his Honour McInnis FM on 30 October 2002. In this application Mrs Yap sought substantially to raise allegations of negligence and breach of duty against the solicitors, raising the same or similar issues as had been disposed of by Commissioner Martin QC in the District Court from whose judgment the appeal to the Full Court, and the later application for special leave to appeal to the High Court, had been dismissed as already described. McInnis FM dismissed this application by his decision of 30 October 2002 - Yap v Granich & Associates [2002] FMCA 284. His Honour observed:

"I would be satisfied on the basis of the previous litigation history in the Federal Court alone that this application brought in this manner relying upon the material to which I have referred is effectively an abuse of process and it would be quite wrong for this Court to entertain the application based on the material before it. This application is clearly, in my view, an abuse of process and an abuse of process which should not be entertained."

20 As earlier noted, the respondent has since instituted another appeal to the Full Court of the Federal Court of Australia from the decision of Federal Magistrate McInnis to dismiss the third application for annulment of the sequestration order, and that appeal is still pending.

21 A constantly recurring feature in the litigation commenced by Mrs Yap so far described, has been her repeated attempts to assert that the solicitors, Granich Partners, the present applicant firm, were negligent or otherwise in breach of duty when acting for her in the proceedings in the District Court of Western Australia when attempting to obtain unconditional leave to defend the Vivante action. Those allegations had all been dealt with, and rejected by, Commissioner Martin QC in his Honour's judgment of 7 May 1996. They were repeatedly raised and rejected in the subsequent proceedings in the State Full Court, in the High Court of Australia and in the applications to adjourn the hearing of the bankruptcy petition. By the time the sequestration order was made, allegations of fraud against the solicitors were added in the various annulment applications and appeals in the Federal Court. These were all examined and rejected in the several decisions in the Federal Bankruptcy jurisdiction, described above.

22 The evidence adduced by the present applicant also includes reference to other proceedings initiated by, or concerning, the respondent against parties other than the applicant. These include proceedings both in Courts of this State and in the Federal Court of Australia. It is sufficient if I mention each of these only briefly. They comprise:

(a) an application by the respondent, Mrs Yap, to a Master of this Court under s 574(3) of the Corporations Law seeking the reinstatement of a company, Cheshire Holdings Pty Ltd, whose registration had been cancelled by the Australian Securities and Investments Commission. This followed earlier unsuccessful applications by Mrs Yap to stay the winding up of Cheshire and later to reinstate the registration of Cheshire. This application was dismissed by Master Sanderson on 11 July 1997 on the basis that the issue arising had already been determined by earlier decisions. This is relied upon by the present applicant to support the submission that the respondent has repeatedly instituted proceedings in the State jurisdiction to challenge judgments, orders or determinations which have previously authoritatively determined the point or points in issue;

(b) an action brought by Mrs Yap, and an associated company, Akibilt Pty Ltd, in the District Court of Western Australia against P Vivante & Co Pty Ltd which was dismissed by a judgment of Charters DCJ on 25 July 1996 - Library No 4994. This was an attempt by Mrs Yap and Akibilt Pty Ltd to recover from Vivante moneys which were alleged to be due as part of the transaction which had led to the proceedings originally brought by Vivante against the respondent. Despite the similarity of the issues raised in this action to those in the original Vivante proceedings, it is not sufficiently clear to me that they were identical or that these proceedings represented any abuse of the process of the District Court. The decision of Charters DCJ dismissing the claim does not suggest that they were;

(c) an action in the District Court of Western Australia (No 1537 of 1989) by Vivante against Mrs Yap resulted in a judgment in favour of Vivante of $84,334 entered after a trial before Wisbey DCJ on 8 August 1996 (Library No 5017). This judgment involved an adverse finding against the credit of the respondent, but does not suggest that the defence constituted an abuse of the process of the court or involved issues which had been determined authoritatively in earlier proceedings;

(d) an originating summons in this Court brought by the respondent, Mrs Yap, against the applicant, Granich & Associates, (CIV 2047 of 1997) seeking the removal of a counterclaim filed by her in a Local Court action in which she was the defendant to a claim by Granich & Associates for legal fees. The counterclaim raised allegations of negligence against Granich & Associates in relation to their representation of her in the Vivante proceedings. The originating summons was dismissed by Master Bredmeyer on 24 October 1997 (Library No 970551) on two grounds. The first was that the claim for costs in the Local Court by Granich & Associates had, by then, been discontinued, and the second was that the proposed counterclaim sought to raise matters which had already been determined by the decision of Commissioner Martin QC in May 1996 and the appeal from that decision to the Full Court which had also been dismissed, meaning that it would be an abuse of process if the counterclaim were to be pursued where there was a res judicata;

(e) an unsuccessful application made by the respondent, Mrs Yap, to Barlow DCJ in the District Court for an extension of time to appeal against an order made by a Registrar dismissing her claim against Esanda Finance Corporation Ltd. That matter was heard in April 1996 and, by a decision of 3 May 1996, Barlow J refused to extend time on the basis that the delay had not been adequately explained and because there was no serious question to be tried raised by the respondent in the action. The reliance placed by the present applicant on this episode, presumably, is to show that the respondent has in the past, in other proceedings, sought to advance a cause without any reasonable prospects of success;

(f) an application by Mrs Yap to appeal from the decision of Barlow DCJ seeking an extension of time to appeal from the order dismissing her action against Esanda Finance Corporation Ltd (see subpar (e) above). This appeal was dismissed by a decision of the Full Court composed of Kennedy, Franklyn and Ipp JJ on 9 April 1998 (Library No 980182). The reasons for decision recite the long and confused history of the appeal proceedings, the attempts by Mrs Yap to introduce grounds of appeal which did not address the issues upon which the decision of Barlow DCJ depended, and a long history of neglect of the time limits imposed by the Rules of the Court. They concluded with the observation:

"She [the respondent] has in the past been treated with considerable leniency both by the learned Masters and by this Court. Esanda says that enough is enough; it is being in effect tyrannised by the litigation brought by Mrs Yap. We agree with this submission. ... "

(g) an unsuccessful application brought by Mrs Yap and another against the Australian Securities and Investments Commission to terminate the winding up of a company, Cheshire Holdings Pty Ltd (then in liquidation). This was an application made under s 482 of the Corporations Law. The winding up was consequential on previous proceedings involving Esanda Finance Corporation Ltd which was granted leave to appear on this application (see par (f) above). The application was dismissed by Master Bredmeyer on 16 June 2000 - Yap & Anor v Australian Securities and Investments Commission [2000] WASC 159, but the role of the present respondent attracted special mention because such an application could only be brought by the liquidator, a creditor or contributor of the company. Master Bredmeyer succinctly described the present respondent's position, as follows:

"Mrs Yap is an undischarged bankrupt. As such her shares vest in the Official Trustee in Bankruptcy. He has not brought this application. She is not therefore a shareholder or, in the words of the section, a contributory. Therefore she is not eligible to bring this application. That is sufficient to dismiss her role in the application."

Mrs Yap's role in initiating that application was, therefore, always doomed to failure and she pursued it without ever having any prospects of success;

(h) another unsuccessful appeal to the Full Court of this Court in Yap Cheng See v Commonwealth Bank of Australia, unreported; FCt SCt of WA; Library No 980512; 10 September 1998. Mrs Yap had brought an action against the Commonwealth Bank of Australia as a result of the Bank's sale in 1998, as mortgagee, of her property at 254 Preston Point Road, Bicton. That action had been brought in the District Court of Western Australia and had been dismissed by Gunning DCJ on 7 October 1996. Mrs Yap had appealed against that decision to the Full Court but had failed to enter the appeal for hearing in time and Master Bredmeyer had refused to extend time to enter the appeal for hearing. She then sought leave to appeal from the Master's decision declining the extension of time. This application for leave was heard at the same time as an application by the Bank to strike out the appeal for want of prosecution but it is unnecessary to describe the Bank's application. Murray and Templeman JJ concluded that Mrs Yap had failed to show that she had any arguable prospects of success. Their Honours also decided that there was no evidence to prove that Mrs Yap had suffered any loss by the Bank's action. Furthermore, there was an inadequately explained delay of 15 months in entering the appeal for hearing which meant that the application to dismiss the appeal for want of prosecution succeeded. The significance of this litigation, in the applicant's submissions, is as an indication of the readiness of Mrs Yap to institute an appeal from any decision in litigation adverse to her, without any real prospects of success and then failing diligently to pursue the appeal but exposing her forensic adversary to the delay, uncertainty, inconvenience and expense of forcing the appeal proceedings to an inevitable, but overdue, outcome.

23 It can be seen that in none of the actions, applications or appeals was Mrs Yap successful. In none of them did she even come close to success. The proceedings involving Granich & Associates, both in the State jurisdictions, and in the Federal Court, involved repeated attempts to re-litigate issues which had authoritatively been determined against her in earlier proceedings. Other litigation in the State jurisdiction shows a repeated course of conduct of instituting or pursuing actions, applications or appeals without any prospect of success.

24 It is therefore necessary to consider what significance this course of events has in the light of the present application for an order prohibiting her from instituting proceedings, or proceedings for a particular cause, without leave of the court or a tribunal, pursuant to s 4 of the Vexatious Proceedings Restriction Act 2002.

25 The Vexatious Proceedings Restriction Act 2002 came into effect upon assent on 18 September 2002. It repealed the Vexatious Proceedings Restriction Act 1930 and, in the process, expanded the circumstances in which an order may be made affecting a vexatious litigant and enlarged the class of applicants who could seek relief under the Act. An order under the new Act may now be made by the court on its own motion or on the application of the Attorney General, the Principal Registrar of the Supreme Court or the Principal Registrar of the District Court or, with leave of the court, on the application of a person against whom another person has instituted or conducted vexatious proceedings; or by a person who has a sufficient interest in the matter. This contrasts with the position under the earlier legislation where an order could only be made on the application of the Attorney General but always subject to the inherent jurisdiction of the court to grant an order staying proceedings to prevent an abuse of its own process - Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311 and Hunter v Leahy [1999] FCA 1075. This inherent power to exercise control of the conduct of proceedings in the court, or vexatious applications in an action exists for the purpose of preventing a party from abusing the process of the court. It co-exists with the wider power conferred by this legislation - Cox v Journeaux [No 2] [1935] HCA 48; (1935) 52 CLR 713 at 720; Suir v Newton (1886) 37 Ch D 169; Grepe v Loam (1887) 37 Ch D 168 and Lord Kinnard v Field [1905] 2 Ch 306.

26 In the present case the applicant invokes the jurisdiction conferred on the court by the Act and it is therefore unnecessary further to explore the nature and extent of the inherent jurisdiction.

27 The orders which the court may make on an application under the Vexatious Proceedings Restriction Act 2002 are set out in s 4(1) in the following terms:

(a) a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or

(b) it is likely that the person will institute or conduct vexatious proceedings,

the Court may make either or both of the following orders -

(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;

(d) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under s 6(1)"

No order may be made under subs 4(1) against any person without hearing that person or giving him or her an opportunity of being heard - s 4(3).

28 Several terms are expressly defined by s 3 of the Act, including:

(a) any cause, matter, action, suit, proceeding, trial or enquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal;

(b) any proceedings, including interlocutory proceedings, taken in conjunction with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and

(c) an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal;"

so making it clear that, in this legislation, the term includes all forms of originating proceedings, any interlocutory proceedings or step taken in the course of a cause, matter, action, suit, etc and any appeal, from any decision or determination whether final or interlocutory.

(a) which are an abuse of the process of a court or a tribunal;

(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

(c) instituted or pursued without reasonable grounds; or

(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose."

This definition has the effect of characterising proceedings as vexatious if they are actively or intentionally instituted or pursued by the litigant for any of the identified or other wrongful purposes, so making the subjective intention of the litigant a material factor. However, proceedings will also be vexatious by an objective standard, if they constitute an abuse of the process of the court or are brought or pursued without a reasonable grounds or they are conducted in a manner set out in subpar (d) of the definition. Hence, proceedings may be vexatious if they have any of these objective characteristics regardless of the personal intention, motive or state of mind of the litigant.

(a) in the case of civil proceedings, the taking of a step or the making of an application which may be necessary in a particular case before proceedings can be commenced against a party;

(b) in the case of proceedings before a tribunal, the taking of a step or the making of an application which may be necessary in a particular case before proceedings can be commenced before the tribunal;

(c) in the case of criminal proceedings, the laying of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

(d) in the case of civil or criminal proceedings, or proceedings before a tribunal, the taking of a step or the making of an application which may be necessary to commence an appeal in relation to the proceedings or to a decision or determination made in the course of the proceedings;"

This definition extends the meaning of the institution of proceedings to include taking any steps which may be a necessary preliminary to the commencement of proceedings, such as an application for leave to commence proceedings, or to extend time for commencement of the proceedings; or to any appeal or application for leave to appeal from a decision in the proceedings.

29 This follows the accepted meaning of vexatious proceedings because it had been established before that the test for whether proceedings are vexatious is not wholly subjective but also involves the objective effect of the proceedings. This feature was recognised in Jones v Skyring [1992] HCA 39; (1992) 66 ALJR 810 by Toohey J at 813 and 814:

"[That question] is not decided by reference to whether the person against whom an order is sought is acting maliciously, or in bad faith. ...

Once the questions sought to be agitated by the respondent had been determined against him by a Full Court, there was no reasonable ground for employing a variety of mechanisms to get those questions before the Court again. The absence of any reasonable ground for employing those mechanisms and the persisted institution of proceedings for the purpose of re-agitating the questions already determined pointed unequivocally to a situation in which the respondent had, frequently and without reasonable ground, instituted vexatious legal proceedings in the Court."

(In that case the application to the High Court was brought by the Registrar of the Court pursuant to High Court Rules O 63 r 6, but the principle also applies to any application brought under the new State Act.)

30 The parties who may apply to the court under the Vexatious Proceedings Restriction Act (2002) seeking an order under s 4 have already been mentioned. The range of persons who may seek an order that a person is a vexatious litigant is far wider than the position under the 1930 Act where only the Attorney General could apply. The Attorney General may still apply, but now the Principal Registrar of the Supreme Court or of the District Court may apply and, with the leave of the court, a person against whom the respondent has instituted or conducted vexatious proceedings, or a person who has a sufficient interest in the matter may also apply.

31 The requirement for leave to be obtained by a private applicant, who can be presumed to be acting in the protection of his or her own interests, is clearly to allow the court to ensure that such applications are not used as instruments of oppression or as tactical exercises between adversaries. The court will only consider the exercise of this jurisdiction if it is satisfied that there are substantial grounds for doing so and there is sufficient reason to embark on an enquiry over whether or not the procedures and opportunities of litigation are being abused, or misused, in such a way that an intolerable burden is placed upon the time, resources and procedures of the court. This is an area where relief should be given not merely because another private litigant is being inconvenienced or harassed but also because important public resources of time and attention of the court are being, or may be, diverted by inappropriate claims, to the disadvantage not only of the court but to other litigants whose causes may be delayed by the time needed to deal with vexatious proceedings.

32 It is this public character of the mischief and prejudice which can be caused by vexatious proceedings which is the reason why the Attorney General, and the Registrars of the Courts may initiate an application for relief and why, in the past, only the Attorney General could do so. It also explains why, a law officer, the Australian Government Solicitor, and the Principal Registrar of the Court or Justice of the High Court of Australia can initiate relief under High Court Rules O 63 r 6, and why a law officer or Registrar of the Federal Court are the only eligible applicants for relief under O 21 r 1 of the Federal Court Rules in respect of proceedings in the Federal Court. However, where an individual litigant has been the target of vexatious proceedings in the Federal Court he or she may bring an application under Federal Court Rules O 21 r 2 which, if established, may result in the Federal Court making an order that the vexatious litigant may not commence or proceed with any proceedings against the aggrieved applicant without the leave of the court.

33 Accordingly, an application by a private litigant, under the Vexatious Proceedings Restriction Act (2002) s 4(2)(c), presents the court with features which differ from those on an application by the Attorney General or by a Principal Registrar, both of whom will be presumed to be acting with a view to the advancement of the public interest. Although there are many discrepancies in the analogy, there is some comparison, in this regard, in the difference between a public nuisance and a private nuisance when addressing the nature of the interests which may be presented by the different potential applicants for relief under s 4(2).

34 The present applicant, Granich Partners, has plainly been the subject of proceedings which have been instituted by Mrs Yap on repeated occasions and therefore, subject to the due characterisation of the nature of the proceedings brought by the respondent, is an eligible applicant under s 4(2)(c)(i). In this case, it is unnecessary to attempt to identify what is a sufficient interest to render a person an eligible applicant under s 4(2)(c)(ii) of the Act but it is evident that the question of the sufficiency of the interest to give such standing is a matter which has been left to determination by the court as and when such cases may arise. Nevertheless, the need for leave to be granted to a private applicant will be satisfied if it is shown that the applicant is seeking the statutory relief primarily for the alleviation of an unjustifiable or exceptional burden which the litigation brought or pursued by the respondent has caused and not just as an additional means of preventing that applicant from having to answer before the courts at the suit of a person seeking to obtain relief at law from some real or imagined wrong, even if it should turn out that the claimant's case will probably fail. In other words, this is not a remedy intended or available to achieve a stay or to prevent the institution of the ordinary run of litigation rather, it is an extreme remedy reserved for instances where quite hopeless claims are brought, or persisted with, to a degree which causes substantial disruption for the target of the claims and for the administration of justice.

35 While s 4(1) of the Act gives the court the power to order that all or any proceedings instituted by a vexatious litigant be stayed, or prohibiting that person from instituting all, or a class of, further proceedings in future, it seems probable that such general relief would usually only be granted on the application of the Attorney General or a Principal Registrar. Although, there may be some instances where a private applicant may be able to show that he or she is just one of many persons targeted for vexatious proceedings by a person whose conduct may reveal a disposition to bring vexatious proceedings against many others, so warranting a general stay or prohibition on further proceedings. Consequently, I consider that in most instances of applications for relief under this legislation by a private applicant, the relief which the court should grant should be tailored to the protection of that applicant or of persons or bodies closely associated with the applicant who are prejudiced, or likely to be prejudiced, by unrestrained activity of the vexatious litigant. That is likely to lead to orders staying or prohibiting proceedings by the vexatious litigant against that particular applicant, rather than to a general stay or prohibition against the institution of any proceedings whatever.

36 There is another change in the test for determining whether relief should be granted introduced by the Vexatious Proceedings Restriction Act (2002). Under the 1930 legislation the court needed to be satisfied that the proceedings previously instituted were vexatious, secondly, that they were begun habitually and persistently and, thirdly, that they were without any reasonable ground. Under the 2002 Act, the requirement for the respondent to have begun proceedings habitually and persistently has disappeared and relief may be granted if it can be shown that the respondent has instituted or conducted vexatious proceedings, either in the past, or presently or is likely to institute or conduct such vexatious proceedings.

37 Despite these quite deliberate changes in the 2002 Act which, as appears from the Attorney General's Second Reading Speech when introducing the Bill into Parliament (Hansard 2000, pages 8354/2 Wednesday 28 June 2000) intended to render access to such relief easier, it is important always to appreciate that the restriction of a citizen's rights to bring or pursue litigation is a serious interference with an important civil right which should only be contemplated in special or unusual circumstances. The considerations pertinent to an application under High Court Rules O 63 were set out at some length by Kirby J in Re Attorney General (Commonwealth); ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321 at 323 which, with respect, I consider apply to applications under this present legislation. His Honour wrote:

"First, it is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specifically required where that person is not legally represented;

secondly, it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant. It is extremely rare in this Court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the court's jurisdiction;

thirdly, the court must never shy away from the determination of a point sought to be argued simply because it may have major ramifications. Mr Skyring urged that I should not be reluctant to provide relief on the legal grounds argued by him simply because to provide relief would be to attack both the banking and taxation and other economic systems of this country. The history of this Court since its establishment in 1903, including recently, has shown that the court does not refrain from offering relief where the law requires it simply because its decisions may have large consequences for the nation or particular interests in it;

fourthly, I do not pause to consider the particular process that Mr Skyring has commenced, seeking relief by way of the writs of certiorari and mandamus. It is not necessary for me, in the decision which I have arrived at, to determine whether they are in each case, or in any of the cases, the appropriate process of the court to invoke its jurisdiction. Mr Skyring appears before me today unrepresented. If he had commenced proceedings by an irregular process which had any separate or different merit from the matters which have already been determined by the court, I would endeavour to assist him to get such proceedings into proper form or require him to commence again in proper form. I would not dispose of his application upon such a formal basis; ... "

Pending litigation by the respondent in Federal jurisdictions

38 As noted above, the only proceedings presently pending by the respondent Mrs Yap against the applicant firm of solicitors are two matters. They are the application for special leave to appeal to the High Court of Australia from the decision of the Full Court of this Court given on 4 December 2002 in CIV 1865 of 2002, referred to in [3] page 4 above. That application for special leave to appeal was instituted by the respondent on 30 December 2002 and, so far as the evidence reveals, is still pending. The other matter is the application for leave to appeal to the Full Court of the Federal Court of Australia from the decision of his Honour Magistrate McInnis, dismissing the respondent's third attempt to annul her sequestration order.

39 In the absence of express provisions, or the clearest of implications to the contrary, a reference to "proceedings" in the Vexatious Proceedings Restriction Act (2002) should be taken as referring to proceedings brought in the jurisdiction of a court or tribunal of this State and not as extending to proceedings commenced in a federal court or tribunal or, for that matter, in a court or tribunal of another state or territory. Furthermore, the making of an application by the respondent for special leave to appeal to the High Court of Australia is the exercise of a right conferred upon her by the Judiciary Act 1903 (Clth). The conduct of the special leave application and of any other proceedings in the High Court will be exclusively regulated by the High Court Rules and applicable Commonwealth legislation. Similarly, an application for leave to appeal, or the institution of an appeal to the Full Court of the Federal Court of Australia is an exercise, or an attempted exercise, of a right conferred upon the appellant upon the respondent by the Federal Court of Australia Act 1975 (Clth). The conduct and procedure of any such appeal or application will be exclusively controlled by the Federal Court Rules and other federal legislation. There is, therefore, absolutely no scope for the Vexatious Proceedings Restriction Act (2002) or for any order which may be made by this Court under that Act to control or restrict the manner in which the respondent may exercise or seek to exercise rights conferred upon her by federal legislation - P v P [1994] HCA 20; (1994) 181 CLR 583 at 602 - 603.. It follows that, if the evidence in this case results in an order being made against the respondent under s 4(2)(c) that order cannot extend to control or affect the respondent's pursuit of rights of appeal or other remedies conferred upon her by federal legislation. This limitation on the powers of this Court under the 1930 Act has previously been recognised by the Full Court in Attorney General v Michael [1999] WASCA 181 per Anderson J at [124] approving, in this regard, a conclusion reached by Wheeler J at first instance in that case. It was repeated by Anderson J in Attorney General v Keating [2000] WASC 93 at [50].

40 As it is only the proceedings which are pending in the Federal Court, and the application for special leave to appeal to the High Court of Australia, which presently pose any immediate threat of further vexation to the applicant, it is necessary to consider whether relief should be given in the present case. In that regard it is clear that relief under s 4(2) of the Act is at the discretion of the court. It may be granted simply upon proof that the respondent has instituted or conducted vexatious proceedings in the past (s 4(1)(a)) or is likely to institute or conduct vexatious proceedings in the future (s 4(1)(b)). Consequently, proof of an imminent or probable future commencement of vexatious proceedings by the respondent unless restrained, is not essential to the grant of relief. Nevertheless, it seems that relief which constitutes such a great intrusion on the rights of an applicant should not be granted in the exercise of discretion if it is clearly unnecessary or the prospects of future vexatious proceedings are so remote as to be negligible. However, the court should not underestimate the prejudice and inconvenience to a private applicant and to the administration of justice generally of failing to recognise even a small threat of future vexatious proceedings from a litigant who, by his or her conduct in the past, has demonstrated that the risk of future vexatious proceedings is a significant one, even if not capable of accurate estimation.

41 A private applicant under s 4(2)(c)(i) of the Act who has proved that vexatious proceedings have been commenced against him or her by the respondent in the past has a strong claim to relief, even though the relief is discretionary. The relief can be granted in a manner tailored to protect that individual's own interests. Much will depend on the facts established by the evidence in each particular application but where, as in the present case, the evidence discloses a course of litigation brought over a period of many years and in many different causes, even though related, it seems proper for the court to infer that the past conduct of the respondent is an indication of probable future conduct and so justifies some restraining measure suitable for the individual case.

The significance of the conduct of the respondent in proceedings in other jurisdictions for the relief claimed under this Act

42 While I have concluded that no order which the court may make under the Vexatious Proceedings Restriction Act (2002) may affect or restrict the conduct of proceedings by the respondent brought in a federal court, or in the court of another state or territory, there remains the question of whether or not her conduct in the pursuit of proceedings in other jurisdictions may be considered and evaluated for determining whether or not she "has instituted or conducted vexatious proceedings" for the purposes of s 4(1)(a). Except where doing so may impose an impermissible fetter on the exercise of a right conferred by federal legislation, there does not seem to be any reason in principle why legislation of the Parliament of Western Australia could not direct or allow this Court to have regard to the conduct of a person in litigation in courts of other jurisdictions, in order to determine whether or not that conduct would warrant, either alone or in combination with other conduct of litigation in courts of this State, that person being characterised as a vexatious litigant.

43 In this respect, however, it is important to stress that any inhibition upon the exercise of a federal right of action in a federal court, or in the court of another state or territory, imposed by state legislation, would be inconsistent with the rights conferred by that other federal or state legislation - P v P [1994] HCA 20; (1994) 181 CLR 583 at 603. But it would be very difficult to see how the scrutiny of a litigant's conduct in another court in order to determine whether or not the litigant acted vexatiously, in order to determine whether or not the litigant should be the subject of some restraint under the Vexatious Proceedings Restriction Act 2002 in courts of this State, could be regarded as an inhibition or an impediment to the exercise of unrestricted rights of action available in that other jurisdiction. An example of subsidiary legislation dealing with vexatious litigants which directs attention to the conduct of a litigant in other courts, can be found in the Rules of the Federal Court, O 21 r 1, which provides:

"21(1) If a person institutes a vexatious proceeding and the court is satisfied that the person has habitually, persistently, and without reasonable grounds instituted other vexatious proceedings in the court or any other Australian court (whether against the same person or against different persons), the court may order:

(a) that any proceeding instituted by the person may not be continued without leave of the court; and

(b) that the person may not institute a proceeding without leave of a court." (Emphasis added.)

The question, in the present instance, therefore is whether or not s 4(1) of the Vexatious Proceedings Restriction Act 2002, properly interpreted, allows attention to be given by this Court to the conduct of an alleged vexatious litigant in proceedings in federal courts or tribunals or in the courts or tribunals of other states and territories.

44 In this regard I consider that, except for some strictly limited purposes, regard should not be had by this Court to the conduct of an alleged vexatious litigant in proceedings brought by or involving that person in the courts or tribunals of the Commonwealth or of another state or territory. This appears to be the view taken of the position by Wheeler J under the 1930 Act in the case of Attorney General v Michael, where her Honour's approach was cited with evident approval by Anderson J in the Full Court in Attorney General v Michael [1999] WASCA 181 where her Honour said:

"It appears that only proceedings instituted in the courts of Western Australia may be considered for the purposes of s 3. This would exclude from consideration the proceedings instituted in the Federal Court, applications to the High Court, and proceedings taken in disciplinary tribunals or similar bodies. However, those other proceedings may be relevant in two ways. First, if any of them are by any procedure brought into the Supreme Court or another State court and maintained there, it may be appropriate to regard those proceedings as having been 'instituted' in the State courts, in the sense that the Michaels had taken steps which led to the proceedings being brought into the State courts. This would mean that, for example, the Federal Court proceedings which were instituted in that Court but transferred to this Court and maintained here, would be proceedings instituted in the Supreme Court within the meaning of s 3. In any event, where it is necessary to establish whether proceedings are vexatious, the fact that such proceedings are cumulative upon those commenced in another jurisdiction may strengthen the conclusion that the proceedings are vexatious. I agree, in that respect, with the observations of MacKenzie J in O'Shea v Cameron, unreported; SCt of Qld; Appeal 112 of 1995; 5 March 1996 at p 5."

The passage from the judgment of MacKenzie J in O'Shea v Cameron (since reported [1996] Qd R 218 Full Court), to which Wheeler J referred, is as follows:

"However, one of [the applicant's] submissions was that proceedings in courts other than Queensland courts could be regarded as 'legal proceedings' for the purpose of determining whether a person had frequently and without reasonable cause instituted legal proceedings. It was conceded that a consequence of this argument was that the Supreme Court might make a declaration, for example, in a case where a person had instituted numerous proceedings in the Federal Court or the courts of other states without reasonable grounds and it was apprehended that he was likely to commence actions in Queensland. We do not accept this proposition. The jurisdiction given by the Vexatious Litigants Act [Qld] is a protective jurisdiction and it is the frequency of the proceedings brought without reasonable grounds in Queensland courts which enlivens it. However once the elements of frequency and lack of reasonable grounds are established it is legitimate, in a case where it is necessary, to have regard to the fact that groundless proceedings have been brought in other jurisdictions and what their outcome was to aid in establishing that proceedings brought in Queensland are vexatious. It may be, as Toohey J thought in Jones v Skyring [1992] HCA 39; (1992) 66 ALJR 810 at 813, that the requirement that proceedings be vexatious in addition to being 'without reasonable grounds' is tautologous in most practical situations. However, in determining the question of fact whether the proceedings instituted in Queensland courts are in fact vexatious (in Re Vernazza [1960] 1 QB 197) the fact that such proceedings are cumulative upon those commenced in another jurisdiction may strengthen the conclusion that the proceedings are vexatious if that is in dispute."

The other Judges in that appeal, Fitzgerald P and Pincus J appear to have accepted the observations of MacKenzie J in this regard, see [1996] QCA 37; [1996] 2 Qd R 218.

45 The questions of whether or not any order made by this Court under the Vexatious Proceedings Restriction Act 2002 would be capable of staying or prohibiting existing or pending proceedings in the Federal Court of Australia, or an application for special leave to appeal to the High Court of Australia arose in this case. They are questions which, because of the potential for an issue of inconsistency between state and federal law to arise under s 109 of the Constitution, I required that the applicant should give notice of them to the Attorneys General of the Commonwealth, the States and the Territories. As the question of whether or not consideration for the purposes of determining this application could be given to the conduct of the respondent when pursuing litigation in the Federal Court of Australia was capable of giving rise to a similar question, I also directed that notice of that issue also be given under s 78B. I adjourned the hearing, after all other submissions had been completed, to await responses to the s 78B Notices. The hearing resumed in July and a further affidavit was filed, by the applicant, by leave, deposing to the dispatch of the s 78B Notices, annexing copies of the Notice to each Attorney General and annexing the responses. This evidence established that none of the Attorneys General of the States, the Territories or of the Commonwealth desired to intervene in the proceedings or to apply to remove the cause or any part of it into the High Court of Australia. Accordingly, I have dealt with the application on the basis of the evidence adduced in the submissions made by the parties alone.

46 The definition of "vexatious proceedings" contained in s 3 of the 2002 Act has already been set out in [28] on page 15 above. It is to this definition that the court must resort in determining the present application but, to some extent, parts of the statutory definition reflect language adopted in earlier cases in this State and elsewhere. These show that a clear case of an abuse of process and of vexatious proceedings is where there are further or collateral attempts to challenge a final decision of a court binding on the party attempting the challenge. In Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488 Yeldham J said:

"When 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 a 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 its form."

Further, in the Attorney General v Wentworth (1988) 14 NSWLR 481, Roden J had occasion to consider the provisions of the Supreme Court Act (1970) (NSW) s 84(1) which stated a test for relief against an alleged vexatious litigant, solely at the suit of the Attorney General, in terms very similar to those set out in the 1930 Act of this State. Leaving aside issues of habitual and persistent institution of vexatious legal proceedings without any reasonable cause, the approaches taken by Roden J to the identification of the characteristics of vexatious proceedings remain relevant and appropriate to the current legislation in this State. They have been cited in many other decisions in different jurisdictions. Roden J cited a passage from the judgment of Dixon J in Cox v Journeaux [No 2] [1935] HCA 48; (1935) 52 CLR 713 at 720 to stress the special and extreme features of the jurisdiction which should be confined to cases which, where there is no improper motive by the litigant, must on a purely objective assessment be utterly hopeless. Dixon J said:

"The inherent jurisdiction of the court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender."

After reviewing other authority in Attorney General v Wentworth (supra), Roden J formulated the following tests for the determination of whether or not proceedings are vexatious (at 491):

"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:

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

(ii) 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.

(iii) 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.

(iv) In order to fall within the terms of s 84:

(a) proceedings in categories (i) and (ii) must also be instituted without reasonable grounds (proceedings in category (iii) necessarily satisfy that requirement);

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

47 In Western Australia under the Vexatious Proceedings Restriction Act (2002) the requirement for habitual and persistent institution of vexatious proceedings has, as already explained, disappeared. Furthermore, the necessity for the proceedings to be "utterly hopeless" was said to be too narrow a test by Anderson J in Attorney General v Michael [1999] WASCA 181 in a judgment in the Full Court with which Pidgeon and Steytler JJ expressed agreement. That was a case dealing with an application under the now repealed 1930 Act of this State but, despite that, the observations relating to the characteristics of the term "vexatious" do not appear to be distinguishable. In Attorney General v Michael (supra) and after specifically referring to the passage cited above from the judgment in Attorney General v Wentworth (1988) 14 NSWLR 481, Anderson J said:

"With all respect, if this means that, absent male fides in one form or another, proceedings will not be vexatious unless they are 'so obviously untenable or manifestly groundless as to be utterly hopeless', I think that test is too narrow as a test of general application under our Act. I think proceedings may be vexatious for the purposes of the Western Australian statute without necessarily being 'utterly hopeless' which I take to mean plainly devoid of any merit whatever. The litigant who seeks dark conspiracies and the threat of great harm to himself or herself in the trivial wrongs of another may provide an example. The commencement of an action by such a person, containing outlandish allegations and seeking forms of relief that the courts do not grant, may be vexatious, notwithstanding that it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy. In this case, and in speaking generally, the Tulley Court litigation against the Maughans and 'Dulla's Print' could fall into that category. Whilst it is not possible to say that the claim of nuisance in respect of the loud playing of music is 'utterly hopeless', the allegations as to that, and the relief sought in respect of it, are so deeply buried in bizarre allegations and untenable claims for relief that the court ought to be able to say, as a matter of judgment, that it is a vexatious proceeding within the meaning of the section."

With respect, there may be some inconsistency between this approach and that identified by Kirby J in the fourth of the propositions which his Honour expressed in Re Attorney General (Commonwealth); ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321 at 324 and referred to in [37] pages 20 and 21 above. In the result in Attorney General v Michael [1999] WASCA 181 the Full Court decided to affirm the decision of Wheeler J at first instance, declining to make an order declaring Dr Michael a vexatious litigant or restraining him in the pursuit of the proposed proceedings, so that the observations made about the unsuitability of the test in Attorney General v Wentworth (supra) in this respect were obiter dicta and not, strictly speaking, actually binding. However, even obiter dicta of the Full Court in Attorney General v Michael (supra) are strong persuasive authority for a single Judge of this Court dealing with applications under the current Act. Still, even on the test outlined by Anderson J in Attorney General v Michael (supra), it is clear that a high degree of confidence in the lack of merit of the proposed cause of action is necessary before intervention is justified.

48 The respondent, Mrs Yap, has undoubtedly made repeated applications in courts of this State which, in one way or another, have challenged the decision of Commissioner Martin QC dismissing her claim for damages for negligence or other breach of duty against the applicant firm, Granich Partners. Those applications were made after an appeal to the Full Court of this Court against the decision of Commissioner Martin QC had been dismissed and also after an application for special leave to appeal to the High Court of Australia from that decision had been refused. There is, therefore, no doubt that the decision of Commissioner Martin QC was final and conclusive and that it was, and remained, binding upon the respondent. The efforts made to challenge that decision in courts of this State included the three unsuccessful applications brought in the District Court of Western Australia to have that action reheard, the unsuccessful appeal to the Full Court of the Supreme Court of Western Australia against its decision (Yap v Granich & Associates [2002] WASCA 330) dismissing an application to have that action reheard on the grounds of fresh evidence. There was also the attempt brought by originating summons in this Court to transfer an intended counterclaim from the Local Court to this Court which sought to raise the same alleged negligence of the applicant firm in proceedings brought against Mrs Yap by the firm for the recovery of fees.

49 The proceedings brought by the respondent in the Federal Court of Australia in an unsuccessful attempt to have the bankruptcy notice set aside, and the many subsequent attempts to have the ensuing sequestration order annulled, all also seek to challenge the finality of the decision of Commissioner Martin QC in the District Court which resulted in the order for costs which was the foundation of the liability contained in the bankruptcy notice. All those attempts within the jurisdiction of the Federal Court by the respondent failed and they plainly evince a repeated disposition by her to reagitate questions which had been determined against her by Commissioner Martin QC, by the first appeal to the Full Court of this Court and the ensuing special leave application. However, as it is not possible for this Court to make any order which will affect proceedings in the Federal Court and as the Act contemplates proceedings pending in a court or tribunal of this State, I do not consider that I should take into account, in determining this application, the conduct of the respondent in relation to litigation in that Court.

50 The res judicata which is the foundation for characterising subsequent proceedings in the State court as vexatious, originated in a decision of a court of this State and appeals against that decision, including the unsuccessful application for special leave to appeal, involve the exercise of State jurisdiction, even if in the last instance, conferred on the High Court by s 73(ii) of the Constitution and by s 21 of the Judiciary Act. These proceedings did not originate in the Federal Court but, rather, the Federal Court has, after due investigation in the course of the annulment proceedings, accepted the finality of the decision of Commissioner Martin QC on that issue. Consequently, this does not seem to be one of those occasions in which even limited recognition of the proceedings in a court of another jurisdiction should be accorded on the determination of the application under s 4 of the Vexatious Proceedings Restriction Act (2002).

51 Nevertheless, I am satisfied that in relation to the proceedings in State Courts brought by the respondent Mrs Yap after the rejection of her special leave application, she has instituted or conducted vexatious proceedings against the applicant within the meaning of the Act. Having heard Mrs Yap develop her submissions in opposition to this application, and reading the convoluted affidavits and written submissions which she has filed, I do not consider that the respondent has instituted any of these proceedings to harass or annoy or to cause delay or detriment to the respondent or for any other subjectively wrongful purpose. Rather, I have reached the conclusion that Mrs Yap is a person who believes, conscientiously, but mistakenly, that she has been a victim of an injustice and that resort to further legal remedies should eventually vindicate her position. Regrettably, in this respect she is not only mistaken but has become so completely absorbed with her own convictions that she is plainly incapable of any objective appreciation of her position. So extreme is her disposition that she can only see, in the rules of court, and the rules of procedure, some opportunity for advancing her own contentions. She is utterly oblivious to other provisions, both of substantive and procedural law, which make it plain that her endeavours to establish a case for negligence or other breach of duty against the respondent, in respect of the matters which have already been adjudicated, are utterly hopeless. Nor does Mrs Yap appreciate that her conduct amounts to an abuse of the processes of the courts of this State. Because of this the applicant has made out a case for the court to make an order under s 4(1) of the Act. It, therefore, becomes necessary to consider whether or not the court should, in the exercise of discretion, make any order.

52 The only proceedings still pending by the respondent against the applicant are, as already explained, the application for special leave to appeal to the High Court of Australia from the decision of the Full Court dismissing her second appeal, and the pending application for leave to appeal, or to appeal, to the Full Court of the Federal Court of Australia from the decision of Federal Magistrate McGuiness dismissing her latest attempt to annul the sequestration order. For the reasons which I have given, this Court cannot make an order affecting either of those proceedings. The question, therefore, is whether the court should make any order under s 4(1) when there are no proceedings actually pending against the applicant, or threatened, which are capable of being stayed or which should be prohibited.

53 During the course of submissions Mrs Yap expressly disavowed any intention to bring any further proceedings against the applicant. I have no reason to conclude that she was not genuine in her expression of intention when making this statement, but her past conduct has shown such extraordinary behaviour and lack of appreciation of the rules and obligations affecting litigants that I am left with the conviction that, if for any reason in the future she saw it as being in her interests to do so, the respondent would not hesitate to commence further proceedings against the applicant quite undeterred by anything which may have been said by courts in the past or by any commitment which she may have given to refrain from doing so. This finding is based on my conclusion that Mrs Yap does not have any developed appreciation of the obligations and responsibilities which are involved in deciding when, and how, to resort to legal process. Consequently, I conclude that there remains an appreciable likelihood that, unless restrained, the respondent will initiate further proceedings in courts or tribunals of this State in the future against the applicant attempting to re-agitate, whether directly or indirectly, the issues which have finally been determined against her. For that reason, therefore, I consider that a case has been made out by the applicant, both for the grant of leave to bring this application and for the exercise of discretion to make a limited order.

54 Because the applicant has brought these proceedings to protect a personal interest, I consider that the relief which should be granted should be confined to the protection of the applicant firm and should not extend to a more general prohibition against the commencement of proceedings against other unrelated parties. Of course, were the respondent to initiate vexatious proceedings against third parties then, on proof that the proceedings were vexatious, either at the suit of those aggrieved persons, or by the Attorney General or by a Registrar of the court concerned then, having regard to the outcome of these proceedings, it would quite possibly be the case that a wider or general restraint should then be ordered. For the moment, however, it seems unnecessary to do anything more than to protect the legitimate interests of the present applicant and any former members of that partnership or its staff who were involved in the proceedings which led to the litigation determined by the decision of Commissioner Martin QC.

55 Therefore, while I am prepared to hear further submissions from the parties as to the precise form of the order which should be made in this case, it seems that an appropriate order would be to prohibit the respondent, or any person acting on behalf of the respondent or deriving any interest from her, from instituting proceedings against the applicant firm or any of its former members or staff who were, or who may be alleged to have been, involved with the firm during the period from 23 June 1993 until 22 October 1998 (this period commencing at about the time the applicant firm was first retained by the respondent and concluding at the date of the dismissal of the special leave application) without the leave of a court or tribunal to be sought in the manner prescribed in s 6 of the Vexatious Proceedings Restriction Act 2002. I appreciate that this involves a complete prohibition upon the commencement of proceedings of any kind in any court or tribunal of this State by the respondent against the applicant, even proceedings seemingly involving issues unrelated to those already finally determined between these parties. Nevertheless, I consider that the applicant has shown an entitlement to such an unrestricted order in protection of its own interests and that if, in the future, the respondent ever considers that she has a justifiable cause of action against the applicant on grounds unrelated to the past course of litigation then she may, of course, apply for leave to commence such proceedings under s 6 of the Act. There is nothing in the proposed order or in these reasons which should prevent the grant of leave in a deserving case and, further, there is always the power of the court, on the application of the respondent, to rescind or vary the order which I propose making by virtue of the provisions of s 7 of the Act.

Proceedings Restriction Act 2002

Proceedings Restriction Act 1930

Court of Australia Act 1975

Granich Partners v Yap [2003] WASC 206

At a glance

Court

Decision date

Before

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Judgment (111 paragraphs)

Granich Partners v Yap [2003] WASC 206 (31 October 2003)

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Legislation Cited (3)

Cases Cited (6)