Kay v Attorney-General for the State of Victoria [2000] VSCA 176

62. I also mention for completeness that in December 1995 the applicant brought proceedings against two members of Parliament; one was based on the allegation that one defendant had defamed him and the other asserted, inter alia, that the other defendant had committed a civil wrong against him in relation to a photostat copy of the letter which he had provided to the defendant. The first proceeding was dismissed on 14 October 1998 by Master Patkin as disclosing no cause of action. A similar order was made in the second proceeding.

65. Mr. Robins agreed that, provided the appeal was properly instituted, it was competent to appeal to this Court from the decision of a judge made pursuant to s.21. Mr. Robins contended, however, that if the order of the judge prohibited the vexatious litigant from continuing or commencing legal proceedings without leave of the court, such leave to proceed had to be secured before an appeal process against the original order could be instituted. Mr. Robins also argued that, in any event, since the order below was made in an interlocutory proceeding for the purpose of s.17A(4)(b), leave is required before the appeal can be pursued. He submitted that, in the circumstances, leave to appeal should be refused. He also pointed to the fact that the summons for leave to appeal was filed out of time and that, having regard to the context of this case, we should not extend the time under r.64.20.

68. Thus, the following issues are raised for resolution.

(a) Does a right of appeal lie to this Court from an order made under s.21 of the Act declaring a person to be a vexatious litigant?

(b) If yes, does the applicant require, under the terms of his Honour's order, leave of the Court to commence and prosecute the appeal?

(c) In any event, is his Honour's order one that was made "in an interlocutory application" for the purposes of s.17A(4)(b) of the Act, requiring the applicant to obtain leave to appeal?

(d) If yes, should leave be given to allow the applicant leave to appeal against the decision of the learned judge?

(e) If yes, should an extension of time within which to file an application for leave to appeal be granted?

I shall deal with each of these issues in turn.

(a) Is an appeal competent?

74. In my opinion Mr. Robins was correct in his concession that, provided it is properly constituted, an appeal on the merits lies to this Court under s.17(2) of the Act from an order declaring a person to be a vexatious litigant. The subsection provides that a right of appeal lies to this Court from any determination of the Trial Division constituted by a judge "unless otherwise expressly provided". On one view, s.21(5), which recognises the power of the Court (relevantly, a judge of the Trial Division because of the provisions of sub-s.(7)) to vary, set aside or revoke an order under sub-s.(2), is exhaustive of the rights of the vexatious litigant to challenge the order made against him or her under s.21(2). The thesis underlying this argument would be that this right, which may be exercised "at any time", reflects the intention of the legislature to exclude appeals to this Court from the original order. In other words, it was said that sub-s.(5) expressly provides "otherwise" for the purpose of the exceptive words in s.17(2) of the Act. It was not suggested that there was any other provision of the Act or of any other Act which fell within those words. Thus the only question is, does s.21(5) fall within the words of s.17(2) "otherwise expressly provided".

77. It is clear that the word "expressly" as is found in s.17(2) includes "any necessary inference". Thus, the exceptive words operate to exclude the right of appeal conferred by the general terms of s.17(2) from a determination by a judge where such a result is called for by another provision, whether in the same or another Act, and either expressly or by necessary implication (Gourlay v. Casey[4]; Rose v. Hvric[5]; Director of Public Prosecutions v. Kanfouche[6]; Rabel v. Eastern Energy Ltd.[7]). Thus, for present purposes the particular question is: does s.21(5) exclude, expressly or by necessary implication, an appeal from a determination made pursuant to s.21(2)? In my opinion, for reasons which I set out briefly below, the answer to that question is, no.

80. It is obvious that s.21(5) does not expressly state that no appeal shall lie to this Court from an order made pursuant to s.21(2). Similarly, in my view, it cannot be said that the sub-section excludes such appeals by necessary implication. There is nothing in the wording of the sub-section which gives rise to such an inference. Thus, there is no inconsistency or overlap between the two provisions; each deals with proceedings of a different character. Section 21(5) is concerned with, inter alia, ensuring that the order declaring a person to be a vexatious litigant does not necessarily operate for the whole of the life of that person. It provides him or her with the opportunity to persuade a judge that there has been such a change in relevant circumstances since the making of the order as to warrant varying, setting aside or revoking it. Although "to set aside" is apt to describe a form of order which an appellate court may make, the provision does not contemplate that the judge hearing such an application would sit on appeal from the original decision and hear the merits of the case so as to determine whether the judge who made the order had erred. Such a situation would be contrary to the whole framework of the orderly judicial decision-making process of the Court as is contemplated by the Act which recognises, particularly in s.17(2), that an appeal in the sense of a re-hearing, ordinarily on the original material, for the purpose of determining if a judge had relevantly erred is to be heard only by the Court of Appeal. In my view, s.21(5) does not take away the right given by s.17(2) to appeal against the determination of a judge under s.21.

83. This conclusion is consistent with the purpose of s.21(5), which is apparent from its terms and the circumstances in which it was introduced. These circumstances make it clear that the provision is not a substitute for the appeal process provided by s.17(2), but is confined in its operation to cases where there has been a change in the relevant circumstances since the making of the original order such as to make it appropriate that the order be varied, set aside or revoked. The background to the introduction of this sub-section into s.21 is as follows.

86. In Bienvenu v. Attorney-General for Victoria[8] Crockett, J. had before him an application to set aside or revoke an allegedly invalid order made by Gillard, J. on 12 December 1969 declaring the applicant a vexatious litigant under s.33 of the Supreme Court Act 1958. In many respects, the section was similar to s.21 of the Act although it did not contain a provision like s.21(5). Crockett, J. nevertheless considered[9] that the Court had an inherent power to set aside or revoke an order made under s.33(1) which would otherwise operate during the lifetime of the person bound by it. His Honour said that the power might be exercised where the Court was persuaded that "the circumstances [had] changed since the date the application was made" before the original judge. Crockett, J. had previously observed[10] that the application before him did not rest on changed circumstances since the making of the original order, but was based on the ground that the original order was invalid at the time of its making so that "if the point has any validity, it is, in my view, clearly an appeal point". Thus, according to his Honour, a challenge to the validity of the order was to be made by way of appeal and not by invoking the Court's inherent jurisdiction to set it aside or revoke it. Section 21(5) was enacted to give legislative force to that aspect of the decision of Crockett, J. Hansard records that in his Second Reading Speech in the Legislative Assembly on 23 October 1986 in relation to the then proposed Supreme Court Act of 1986, the Attorney-General said that "[c]lause 21 now makes it clear that a vexatious litigant need not receive an effective life sentence, for the court may at any time vary or revoke its order which gives statutory recognition to the decision of the Supreme Court in 1982 in the case of Bienvenu v. The Attorney-General of Victoria."[11]

89. Thus, in my opinion, s.21(5) does not evince an intention to exclude from the operation of s.17(2) a decision made by a judge pursuant to s.21(2). There being no other provision that arguably provides "otherwise" for the purposes of s.17(2), it follows that an appeal brought against such a decision, provided it was properly instituted, would be a competent appeal.

(b) Does the applicant require leave under his Honour's order?

93. It will be recalled that his Honour ordered, inter alia, that the applicant must not, without leave of the court, continue or commence legal proceedings in, inter alia, "this Court". Mr. Robins contended that any step taken for the purpose of appealing against his Honour's decision amounted to the "commencement of legal proceedings" within the meaning of his Honour's order and could only be pursued if leave of the Court was first obtained in accordance with it. In support of his submission Mr. Robins relied on what was said by the English Court of Appeal in In re Vernazza[12]. That case was concerned with an order which effectively declared the appellant to be a vexatious litigant pursuant to legislation which was relevantly similar to s.21 of the Act. It was argued for the applicant in that case that, in determining if the person in question has "instituted legal proceedings" within the meaning of the equivalent to our s.21(2) in circumstances which would warrant declaring him or her a vexatious litigant, the court could look only at the institution of proceedings for substantive relief, such as the issue of a writ or an originating motion. Interlocutory steps in an action, it was argued, did not amount to the institution of "legal proceedings" for the purposes of the sub-section. The appeal was dismissed because the Court of Appeal took the view that, whether "institution of legal proceedings" was given a wide or a narrow meaning, there was ample material before the court below to warrant declaring the appellant to be a vexatious litigant. In the course of discussing the meaning of the term in question, Ormerod, L.J. said[13] that he very much doubted whether petitions to the House of Lords for leave to appeal (which the appellant had filed over the years since 1937) amounted to the institution of proceedings, but leant to the view that an appeal to the Court of Appeal did amount to the institution of a proceeding (although his Lordship made it plain that it was probably unnecessary for him to decide that question). Similarly, Willmer, L.J.[14] said that, although he did not think the occasion made it necessary to attempt to draw an exact line between that which does and that which does not amount to "instituting" proceedings even though (as in Victoria in an appeal from the Trial Division) the title and number of the action may be the same when it gets to the Court of Appeal as it was below, he thought there was much to be said for the view that the instituting of an appeal in an action which has already been disposed of, can be fairly said to be instituting a proceeding. The third member of the court, Harman, L.J.[15] declined to proffer any view as to the meaning of the term "institution of legal proceedings".[16]

96. There is some force in the argument that, ordinarily, the filing of a notice of appeal or an application for leave to appeal amounts to the commencement of a "legal proceeding" (Vernazza; Braeside Bearings Pty. Ltd. v. HJ Brignell & Associates (Boronia)[17]; Cheney v. Spooner[18]; Re Crittendon; ex parte The Law Institute of Victoria[19]). But it is also arguable that, ordinarily, such a step within the same court is properly characterised as the continuation of a legal proceeding. Be that as it may, however, this still leaves open the question whether the institution of an appeal which seeks to challenge the correctness or the validity of the decision to declare the appellant a vexatious litigant, amounts to the commencement or to the continuation of "legal proceedings in the Court" for the purposes of s.21(3). Clearly, if such proceedings do not fall within the sub-section, the judge has no power to restrain the vexatious litigant from instituting the appeal process. Put another way, the question is whether on its true construction, the sub-section empowers the judge to restrain the vexatious litigant from appealing against the correctness of the decision without first obtaining leave to do so from that or another judge. In my opinion, the answer is, no.

99. The purpose of s.21(3) is to empower the court to make the orders contemplated by it so that practical effect may be given to the declaration made under s.21(2) that the person in question is a vexatious litigant. Thus, the restraining orders that are made under that provision give content to the order made under s.21(2). But the power to make the restraining orders under s.21(3) is predicated upon there being in existence a valid order made under s.21(2) declaring the person to be a vexatious litigant. Put another way, s.21(3) operates on the assumption that the order made under s.21(2) is a valid order. Consequently, s.21(3) is concerned with restraining orders in respect of proceedings other than those which seek to attack the validity or correctness of the orders made under s.21(2), such as proceedings which are extant at the date of the order, including those in respect of which an appeal may be contemplated, as well as proceedings which the vexatious litigant may seek to bring in the future. But, as I have said, the sub-section is not concerned with an appeal which challenges the validity or correctness of the s.21(2) order.

102. If s.21(3) operates in the manner contended for by Mr. Robins, it will materially diminish the right of appeal conferred by s.17(2) of the Act and deprive the Court of Appeal of the control that it now has over appeals and, in particular, appeals from interlocutory orders. Clear language would be required if the legislature intended to produce such a situation and, in my opinion, such clarity of language is lacking in the provision. Moreover, if s.21(3) operates as Mr. Robins submitted, it could lead to absurd and, arguably, unjust results which could not have been intended by the legislature. Thus, if, as Mr. Robins contends, the order in question is an interlocutory order, the vexatious litigant would have to obtain leave to appeal against that order from this Court under s.17A(4)(b) of the Act. But before he could make an application for such leave, he would have to have secured leave to do that from a judge. Thus, there would be two hearings about the prospects of success of the proposed appeal, assuming that the judge grants leave. If no such leave is granted, the litigant would be shut out from applying to the Court of Appeal for leave to appeal unless the order of the judge refusing leave is set aside. The setting aside of that refusal could only be pursued by way of appeal in respect of which leave would have to be obtained from this Court. But before an application for such leave could be sought, leave to proceed would have to be obtained from a judge because, on Mr. Robins' argument, such an application would amount to a commencement of legal proceedings "in the Court". And so on. Consequently, there would be a multiplicity of interlocutory proceedings with a possibility that the real issue - the correctness or otherwise of the s.21(2) order - may never reach the Court of Appeal. It is difficult to accept that s.21(3) of the Act was intended to operate so as to give rise to the possibility of such results.

105. Thus, in my opinion, s.21(3) does not empower a judge to make his decision under s.21(2) appeal-proof in the way contended for by Mr Robins. It follows that, in my view, the applicant does not require leave of a judge to prosecute his application for leave to appeal in this proceeding.

(c) Is a s.21 order interlocutory?

109. The next issue to be considered is whether his Honour's order was made in an "interlocutory application" within the meaning of s.17A(4)(b) of the Act such that the applicant requires leave to appeal against it. The reference in that provision to "judgment or order in an interlocutory application" is a reference to an interlocutory judgment or order as those terms were used in the pre-cursor to that provision - per Brooking, J.A. (with whom the President and Tadgell, J.A. agreed) in Border Auto Wreckers (Wodonga) Pty. Ltd. v. Strathdee[20]. It is important to determine whether the decision below is interlocutory or final because if it is interlocutory, this Court has no jurisdiction to entertain the appeal unless and until leave to appeal is granted (Little v. The State of Victoria[21] per Callaway, J.A. with whom Buchanan, J.A. agreed. See also Brooking, J.A. in Border[22]). Mr. Robins submitted that his Honour's order was interlocutory and, in my view, his submission should be accepted.

112. The usually accepted test which is applied in determining whether an order is final or interlocutory is whether the judgment or order appealed from finally determines the rights of the parties in the principal cause between them having regard to the legal, rather than the practical, effect of the judgment or order (Hall v. Nominal Defendant[23]; Licul v. Corney[24]; Carr v. Finance Corporation of Australia Ltd. [No.1][25]). See also Little[26]. As Brooking, J.A. observed in Border[27] whether an order is final or interlocutory for the purpose of leave to appeal "may be ascertained with tolerable certainty by reference to decided cases specifically in point or, in the absence of such a decision, to rules which are now established by decisions of the High Court".

115. There are many instances where courts have held that orders made on applications that arose out of a principal cause were interlocutory orders. Thus, for example, it was recognised by Taylor, J. in Hall[28] that the following orders were interlocutory orders:

(a) staying or dismissing proceedings on the ground that they are scandalous, vexatious and an abuse of process;

(b) striking out a statement of claim on the ground that it discloses no reasonable cause of action;

(c) refusing to set aside a default judgment.

But as Taylor, J. also recognised in Hall, an order may be interlocutory even though it is not made upon an application that was issued in the course of an existing proceeding. Thus, as his Honour noted[29], in Smith v. Cowell[30] the Court of Appeal rejected the contention that an order is interlocutory only if made at some time between "writ and final judgment". It held that "interlocutory order" was wide enough to include orders that were made after the conclusion of the action[31]. In Hall, the majority held that a refusal of an application for an extension of time within which to sue the defendant was an interlocutory order notwithstanding that the proceeding in which the order was made was self-contained in the sense that it did not arise out of an existing proceeding, although it was made in contemplation of a proceeding which the applicant hoped to issue and in which he would make the substantive claim against the respondent. Taylor, J. (with whom Owen, J. agreed) held[32] that the order in that case was interlocutory notwithstanding that it was made in proceedings preliminary to bringing the action and notwithstanding that it deprived (in fact but not in law) the applicant of the right to bring the substantive proceeding. It did not, however, operate to prevent him from making a further application for an extension of time and thus, did not of its own force, legally conclude the applicant's right to bring an action.

122. The order in the present case was made in the proceeding itself. It did not arise merely in the course of the existing proceeding; nor was it preliminary to a proposed action where the substantive claims would be litigated if the order sought was made (as was the situation in Hall). Consequently, it might be said that the order here finally determined the rights of the parties and, therefore, the order or judgment was not one "in an interlocutory application". Such a conclusion was reached by the Court of Appeal in Pedler v. Hunters Hill Municipal Council[33]. In that case, the trial judge, Yeldham, J., effectively declared the appellant to be a vexatious litigant pursuant to s.84 of the New South Wales Supreme Court Act 1970, which, in relevant terms, was similar to s.21. His Honour refused an application brought by the appellant for leave to appeal against his judgment to the Privy Council. So far as is relevant, Rule 2 of the Rules governing such appeals provided that an appeal (to the Privy Council) should lie:

(a) as of right, from any final judgment of the Court; and

(b) at the discretion of the Court from any other judgment of the Court, whether final or interlocutory if, in the opinion of the Court, the question involved in the appeal is of general of public importance.

The appellant appealed to the Court of Appeal against this refusal. Reynolds, J.A. with whom the President and Samuels, J.A. agreed, considered first that, although leave to appeal against the decision of Yeldham, J. refusing leave to appeal to the Privy Council was necessary, leave should be granted. His Honour then turned to consider whether, for the purposes of Rule 2, the judgment declaring the appellant a vexatious litigant was final. At 447 his Honour said that the case was "an independent proceeding in which past events have to be established, and it is unrelated to what might be described as any main matter in issue or dispute between the parties. It is not in the course of existing proceedings or preliminary to the assertion of an identifiable main claim as in Hall's case". Consequently, his Honour concluded, the vexatious litigant order made by Yeldham, J. in that proceeding was a final order within the meaning of the Rules.

128. In my opinion, however, Pedler can be distinguished from the present case since his Honour seems to have taken no account in his reasoning of s.84(3) being the analogue in New South Wales of s.21(5). In my view, this provision is critical to the determination of whether a s.21(2) order is final or interlocutory. I mention for completeness that, so far as I am able to tell, Pedler has not been relevantly applied in any subsequent case dealing with orders by which a person was declared to be a vexatious litigant.

131. In my view, having regard particularly to the operation of s.21(5) the order in question cannot be said to have a legal effect which finally determines the rights of the parties. Either party can, at any time, seek to have the order varied, set aside or revoked, albeit not on the basis that the decision was erroneous, but by demonstrating a change in relevant circumstances. Any complaint that the decision is wrong in law can, of course, be sought to be pursued by an appeal process, but in the end, even if the order were to remain extant notwithstanding any appeal, it can be varied, set aside or revoked under s.21(5). In those circumstances, it is difficult to see how it can be said that it finally disposes of the rights of the parties inter se.

134. It is true that Crockett, J. in Bienvenu seems to have considered[34] that no leave was required to appeal against the order in question on the basis that it was a nullity. But, as his Honour recognised, he did not have to decide this point and his observation was clearly not part of his reasoning process in respect of the issues that were before him for resolution.

137. More recently, the Supreme Court of New South Wales appears to have recognised that an order such as the one under consideration is interlocutory. In Valassis v. McCabe[35] Meagher, J.A. noted that the appeal in question, which challenged an order declaring the applicant a vexatious litigant, was brought "pursuant to leave previously granted"[36]. In Attorney-General (N.S.W.) v. Spautz[37] Brownie, A.J. had before him an application brought by a person who was declared to be a vexatious litigant in 1990, for leave, inter alia, to revoke the original order made under s.84 of the New South Wales Supreme Court Act 1970 (being an order which was expressed to operate until further order and described by the judge who made it, McInerney, J., as an "interlocutory" order). The grounds of the application included the claim that the judge below was biased and that he erred in law in making the order. Not surprisingly, Brownie, J.A. at [6] held that he had no authority to decide the point (implicitly because the proceeding before him was not an appeal). More relevantly for present purposes, however, his Honour seemed to accept that such an order was an interlocutory order requiring leave to appeal. In response to the submission for the vexatious litigant that the plaintiff only obtained interlocutory relief and had taken no or no effective steps to bring the case on for hearing since 1990, the learned judge said that there was nothing more that the plaintiff had to do after he obtained the order sought. His Honour also said this:

"The right of an ordinary citizen to commence and continue legal proceedings without requiring the consent or leave of any other person is one of the foundations of a free society, as we know it in Australia. Section 84, like its analogues in other jurisdictions, provides for an extraordinary restraint upon that freedom to litigate, which restraint is only to be imposed in extraordinary circumstances, upon clear proof of those circumstances; and there are always two important limitations upon the restraint: the Court may grant the leave mentioned in subs.(1) or subs.(2), as the case may be, and by force of subs.(3), the restraint is never permanent in effect. These two limitations mean that an order under section 84 is interlocutory in nature; ..."

141. A case which helpful although it did not deal with an order declaring a person to be a vexatious litigant, but where relevantly similar legislation was considered for the purpose of determining whether the order in question was final or interlocutory, is Rushby v. Roberts[38]. In that case the New South Wales Court of Appeal considered whether a custody order made under s.5 of the Infants' Custody and Settlements Act 1899 (N.S.W.) was interlocutory or final. It was held to be interlocutory. Hutley, J.A. (with whom Street, C.J. agreed) concluded[39] that s.5(8), which provided that the custody order could be varied or discharged by a subsequent order, "destroy[ed] any claim to finality in the order."

144. In the circumstances, I conclude that his Honour's order of 23 February 1999 was made in an "interlocutory application" for the purposes of s.17A(4)(b) and, therefore, leave is required before the applicant can pursue his proposed appeal challenging the correctness of the decision.

148. The principles which govern the grant of leave to appeal are well known. The applicant for such leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice will result from a refusal_._[40]

151. In my opinion the applicant has failed to make out that his Honour's decision is attended with such doubt as to warrant granting leave to appeal. Put simply, in my view, the applicant's attack on his Honour's decision is without any merit. His principal contention was that he was denied legal representation before his Honour, which, he claimed, amounted to a denial of natural justice. This claim forms the basis of grounds 1 and 2 of his proposed notice of appeal. I have already mentioned that the applicant applied to his Honour on 25 November 1998, when the hearing was first called on, for an adjournment to enable him to obtain legal representation through Victoria Legal Aid and that his Honour acceded to that request, adjourning the trial to 7 December 1998. The applicant, however, was unable to obtain legal aid and was not otherwise able to secure legal representation. Thus, on 7 December 1998 the hearing commenced. In my opinion, it is plain that his Honour made no error of law in respect of the applicant's application for an adjournment or for legal representation. His Honour had no power to cause legal aid to be provided to him or to procure legal representation for him. I merely note that, having regard to the applicant's effective rejection on two occasions of legal aid that was provided to him for the purposes of the appeal, there must be some doubt as to whether any legal representation that might have been made available at the outset of the trial, would have been retained by him. In any event, it is clear from the full and careful reasons for judgment of the learned trial judge that the applicant was afforded every indulgence and was given generous assistance by the Bench in the presentation of his case. Moreover, his Honour made an express finding that the case was conducted on behalf of the Attorney-General with "impeccable fairness". Before us, the applicant did not seek to question that finding or suggest that he did not receive significant assistance from the Bench.

154. The applicant's written material does not claim that any other error of law was made by the learned trial judge. His oral submissions also did not advance that point. Nothing that he said during the course of the hearing had any relevance to the question of whether his Honour relevantly erred in making the order that he made. The applicant used the proceeding to expound repeatedly, heatedly and loudly his complaint that the intervention order made against him is invalid and his claim that its operation has a detrimental effect on his children who are being denied contact with their father. In the course of his speech to this Court, the applicant quoted extensively from his correspondence with the Queen and various politicians in Australia and from other material which he produced in which he abuses, sometimes in crude language, a range of people involved in the administration of justice, including lawyers and judicial officers. Similar defamatory material was referred to by him which was directed to various persons. He quoted extensively from the United Nations declaration on human rights and constantly came back to his allegations that he was denied natural justice by the Family Court and that now that he has been declared a vexatious litigant he has no prospect of persuading that court to change its orders. He referred to numerous articles in newspapers which, he said, supported his claim that children who are deprived of contact with their father are at risk of suffering psychological problems in later life; such children are at greater risk of being preyed upon by paedophiles than are children who have regular contact with their fathers. The applicant further contended that he was falsely charged with breaches of the intervention order and often repeated his complaint that he did not have appropriate opportunity to cross-examine his wife in the proceedings which related to that order. He claimed that had he been able to do so, the cross-examination would have demonstrated the fraud that she and the witnesses called by her perpetrated on the court in the process of securing the intervention order. He also claimed that he has been refused legal assistance for his appeal by the Law Institute of Victoria and by the Victorian Bar simply because he was a vexatious litigant. An examination of the correspondence from those bodies makes it clear, however, that they fully investigated his prospects of success of appealing against the order in question to the extent possible given the material that he provided to them, and that they declined to provide him with legal assistance because, in their respective views, he had no realistic prospect of success in any appeal that he might bring against the order declaring him a vexatious litigant.

157. Thus, in my opinion, no error of law on the part of his Honour has been established by the applicant. Nevertheless, since the application is made by the litigant in person, it is appropriate to go beyond his contentions and to scrutinise carefully his Honour's decision in order to determine if a relevant error was made by him. I have so examined his Honour's full and carefully reasoned judgment. In my view, no relevant error was made by him. It is apparent that the learned judge approached the issues fully recognising that the applicant was not legally represented and gave him the benefit of the doubt as to whether a number of the proceedings which were instituted by him and on which the Attorney-General relied to establish his case were vexatious or an abuse of process. It is apparent from the reasons for judgment that his Honour well appreciated that if the applicant was declared a vexatious litigant he would be under a considerable disadvantage in the context of any likely proceedings in which he was or might become involved. It is also clear that his Honour applied the correct test in determining whether the proceedings launched by the applicant were vexatious. The learned judge was well aware that it was for the Attorney-General to establish that the applicant engaged in a habitual and persistent institution of such proceedings. Moreover, his Honour appreciated that he also had to be satisfied that such proceedings were instituted without any reasonable grounds. He analysed with some particularity each of the proceedings brought by the applicant and, as I have said, gave him the benefit of any doubt as to whether a number of them were vexatious. Moreover, his Honour stated on numerous occasions that it was fully recognised that the applicant had a sincere desire to see his children. Looking at the relevant proceedings individually and then collectively and at the circumstances surrounding each of them, his Honour concluded that the Attorney-General had made out the requirements of s.21(2) of the Act and thus, he made the orders sought. In my view, that conclusion was well open to his Honour.

160. In the circumstances I would refuse the applicant leave to appeal against his Honour's decision.

164. Having regard to my above conclusion, there is no need to consider whether the applicant should be granted an extension of time for applying for leave to appeal against his Honour's order.

168. Consequently, I would dismiss each of the two summonses filed in this proceeding on 30 March 1999.

[1] In re Millane [1930] VicLawRp 58; [1930] V.L.R. 381, decided on the original Victorian provision, is thus reversed.

[2] s.22 of the Crimes (Family Violence) Act 1987

[3] Unlike s.33(2) of the 1958 Act, the current section contains no provision requiring the assignment of counsel.

[4] [1927] HCA 6; (1927) 38 C.L.R. 586 at 590;

[5] [1963] HCA 13; (1963) 108 C.L.R. 353 at 357-359

[6] [1992] VicRp 9; [1992] 1 V.R. 141 at 149

[7] [1999] VSCA 103; [1999] 3 V.R. 45 at 49

[8] [1982] VicRp 58; [1982] V.R. 563

[11] For completeness, I note that, when first enacted, s.21(5) did not in terms empower the court to "vary" the original order. No doubt that was an oversight and that power was expressly conferred by the amendment to s.21(5) by the Courts and Tribunals (General Amendment) Act 1996.

[12] [1960] 1 Q.B. 197 at 209-10

[16] This aspect of Vernazza was considered by Toohey, J. in Jones v. Skyring [1992] HCA 39; (1992) 109 ALR 303 at 310; [1992] HCA 39; 66 A.L.J.R. 810 at 813. His Honour observed that "[Ormerod LJ] and Willmer LJ seem to have had little doubt that an appeal in an action already disposed of involved the institution of proceedings." In the recent case of Ramsey v. Skyring [1999] FCA 907; (1999) 164 ALR 378, Sackville J (at 391) appears to have taken the observations of both Ormerod LJ in Vernazza and Toohey J in Jones v. Skyring to mean that "[i]t has been accepted that the filing of an appeal involves the institution of a proceeding in the context of an application to declare a person a vexatious litigant."

[17] [1996] VicRp 3; [1996] 1 V.R. 17 at 19.

[18] [1929] HCA 12; (1929) 41 C.L.R. 532 at 536-7; 538-9.

[19] [1958] VicRp 19; [1958] V.R. 101 at 102.

[20] [1996] VSC 55; [1997] 2 V.R. 49 at 51

[21] [1998] 4 V.R. 596 at 597 and 602

[23] [1966] HCA 36; (1966) 117 C.L.R. 423 at 439-440 per Taylor, J.

[24] [1976] HCA 6; (1976) 180 C.L.R. 213 at 225 per Gibbs, J.; [1976] HCA 6; 50 A.L.J.R. 439 at 444

[25] [1981] HCA 20; (1980) 147 C.L.R. 246 at 248 per Gibbs, C.J.

[30] (1880) 6 Q.B.D. 75 at 78

[31] Batt, J.A. kindly drew my attention to the observation of the majority in Cardile v. Led Builders Pty. Ltd. (1999) 198 C.L.R. 380 at 401 that Mareva orders made in aid of the specific remedies provided for execution against judgment debtors, are "not interlocutory as they may operate after the recovery of final judgment, yet they are impermanent in the sense that they preserve assets and assist and protect the use of methods of execution and do not substitute for them." Without analysing here their Honours' judgment, it is sufficient to say that nothing in it indicates that their observation was intended to relate to the issue of whether a judgment or order is interlocutory or final for the purpose of legislation such as s.17A(4)(b) of the Act, which admits of no third category.

[33] [1976] 2 N.S.W.L.R. 411

[35] [1999] N.S.W.C.A. 423

[36] Such leave was granted by Mason, P. and Sheller, J.A. on 18 May 1999 on the basis that the order below was an interlocutory order.

[37] [2000] N.S.W.S.C. 45

[38] [1983] 1 N.S.W.L.R. 350

[40] Neimann v. Electronic Industries Ltd [1978] VicRp 44; [1978] V.R. 431 at 438