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

Kay v Attorney-General for the State of Victoria [2000] VSCA 176 - VSCA 2000 case summary — Zoe

(a) The first proceeding concerned the hearing of the charges in the Magistrates' Court that the applicant threatened to kill Mr. Glover. On his solicitor's advice, he pleaded guilty to that charge and, as a consequence, two other charges were withdrawn. He was sentenced to four months' imprisonment but the sentence was suspended except for the period that he had been detained, so that he was released from custody immediately the sentence was imposed. He appealed to the County Court against the conviction and sentence and engaged a new firm of solicitors. The appeal was dismissed in the sense that the judge found the charge proved although he substituted a one month term instead of a four months' term. McDonald, J. dismissed the applicant's originating motion which sought to quash the decision of the County Court judge. Phillips and Buchanan, JJ.A. dismissed the application for leave to appeal against the decision of McDonald, J.

(b) The second proceeding which involved the applicant and the police, and which ultimately became proceeding 4993/99, was instituted by a writ filed by him in the County Court on 21 December 1995 against (by subsequent amendment) police officers in which he claimed damages for allegedly wrongful acts committed by the police against him.

(c) The third proceeding, which ultimately became proceeding 7901/97, arose out of the conviction of the applicant on 15 August 1996 for breaches of the intervention order and the imposition of an eight months' term of imprisonment (four months of which were suspended). He appealed against that conviction to the County Court and, although the circumstances were somewhat complicated, it is sufficient for present purposes to note that the applicant abandoned the appeal and later applied unsuccessfully to Chief Judge Waldron to have it re-instated. He failed in his attempt to have that decision upset on review by Vincent, J. He has appealed against the judgment of Vincent, J. and the application relating to that appeal has, as I have mentioned previously, been heard by us and is the subject of a separate judgment.

[15]

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]

[36]

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.

[37]

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.

[38]

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.

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