Kay v Attorney-General for the State of Victoria [2008] VSCA 285

2 The circumstances leading up to the making of that declaration are set out in detail in the reasons for judgment given by Eames J. Of central importance is that an intervention order was granted against Mr Kay, at the behest of his former wife, in 1994. An extension of that order in 1995 operates to prevent Mr Kay from going within five kilometres of certain premises. This order has had the effect of denying Mr Kay access to his children. As will appear, that remains Mr Kay's principal grievance, and the source of his powerful sense of injustice.

3 Since he was declared a vexatious litigant in 1999, Mr Kay has made several applications to judges of the Court seeking to have the declaration set aside or overturned.[2] The most recent such application came on before Warren CJ on 22 May 2006. Her Honour dismissed the application and Mr Kay now seeks leave to appeal from that dismissal.

4 The leave application came on for hearing on 29 September 2006. The hearing of the application was adjourned, at Mr Kay's request, in order to enable him to obtain the transcript of the hearing before Warren CJ on 22 May 2006. There were further adjournments on 15 February 2007, 16 March 2007, and 7 March 2008, and the application finally came on for hearing on 14 May 2008.

5 Mr Kay appealed unsuccessfully to the Court of Appeal against the original vexatious litigant declaration made by Eames J in 1999. In Kay v Attorney-General,[3] the Court held that, although the appeal was not itself a proceeding which required leave under the prohibitory order made against Mr Kay, the decision to declare him a vexatious litigant was interlocutory in nature, such that leave to appeal was required in accordance with s 17A(4)(b) of the Supreme Court Act 1986. The reason for this was explained by Chernov JA (with whom Ormiston and Batt JJA agreed) in these terms:

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.[4]

6 For similar reasons, we consider that the Chief Justice's order, dismissing Mr Kay's application to revoke the vexatious litigant declaration, did not have a legal effect which finally determined the rights of the parties. As the history of Mr Kay's successive revocation applications illustrates, the dismissal of one revocation application does not prevent - and has not prevented - him from bringing a fresh revocation application, albeit that such further applications will be doomed to fail unless a change in relevant circumstances can be demonstrated. Accordingly, Mr Kay requires leave to appeal from the Chief Justice's order.

7 Mr Kay should understand, however, that the requirement for leave would have constituted no barrier to the appeal had he been able to demonstrate that he had an arguable case to show that the decision of the Chief Justice was in error. All that he needed to show in order to obtain leave to appeal was that the decision below was 'attended with sufficient doubt to warrant a grant of appeal'. Self-evidently, if the decision below were erroneous, it would constitute a very significant injustice to Mr Kay to allow the order to stand.[5]

8 For reasons which follow, however, we consider that Mr Kay failed to establish any arguable ground of appeal. We consider, with respect, that the decision of the Chief Justice was correct. Accordingly, the application for leave to appeal will be refused.

9 In his summons dated 1 August 2006, Mr Kay set out three grounds on which he relied, as follows:

1. The judgment of her Honour is wrong by law, when she refused to accept any evidence that was contained in the applicant's affidavit in support of his application before her to remove the applicant's current vexatious litigant status.
2. That the appellant is being denied natural justice.
3. That her Honour should not have heard the matter as the applicant had requested that his application be heard before a judge and jury, and he did not agree to her ignoring this request and for her to proceed with the case.

• Leave to appeal from the decision made by Chief Justice Warren on 16 June 2006.
• That the decision of Chief Justice Warren be overturned, and that the appellant be given a retrial, before a judge and jury, and that the case cannot be heard until the appellant has competent legal representation.
• That the Court acknowledges that while the appellant remains a declared vexatious litigant, he has little chance of justice in the state of Victoria, and therefore is being denied natural justice.

11 In the summons, Mr Kay requested that his appeal be heard by a judge and jury. The summons also contained, under the heading 'Challenge to the Jurisdiction of the Courts', these statements:

The courts have acted illegally, by refusing the applicant's request, to have his trials and cases heard before a judge and jury.

As he has already appeared before 26 Supreme court judges, some on several occasions, it would be a mockery of justice and the prestige of this court for this situation to continue.

Challenge

In any action, both parties must give their clear and unequivocal consent, to contest a matter not by judge and jury. Without that consent, the court has no jurisdiction to proceed and therefore the jurisdiction of the court must be challenged. This challenge can only be judged by a special jury.

Should a judge or magistrate disregard or dismiss this challenge, then he or she is liable to imprisonment. Should a judge or magistrate disregard or dismiss this challenge, that is a violation of Due Process and Role [sic] of Law.

Due process is a course of legal proceedings according to rules and principles that have been established in a system for jurisprudence for the enforcement and protection of private rights. Due process derives from early English common law which forms the Australian constitution.

The rule of law is the supremacy of law and embodies the predominance of regular law so that no government body (e.g. The Attorney General's Office) has arbitrary authority over any citizen and that any citizen's personal freedoms are formulated and protected by ordinary law. (Oxford Ref Dictionary of law).

"Once a jurisdiction is challenged, it must be proven" (Jagens v Lavine, 415s CT 768). Jurisdiction can be challenged at any time, even on final determination. Where there is an absence of jurisdiction all administrative and judicial proceedings are a nullity and therefore confer no right nor offer any protection, to any person, and afford no justification and may be rejected by law.

12 In the affidavit which he filed in support of the application for leave to appeal, Mr Kay said:

C J Warren refused to allow my case to be heard before a judge and jury. I did not agree for her to proceed with my application to the court to remove the vexatious litigant tag I wear.

CJ Warren also refuses to allow me to present any of the evidence contained in my affidavit in support of application and finalised the hearing after ignoring my claim that I had been denied the opportunity to present my case.

Then, under the heading 'Who is vexatious? Me? Or the System?' Mr Kay set out a series of strongly-worded criticisms of decisions made adversely to him by respectively, the Magistrates' Court, the County Court, the Family Court, the High Court, the Federal Police, the Victims of Crime Assistance Tribunal, and the Office of Public Prosecutions. He then stated:

All the criminal charges I have faced, have been based entirely on verbal evidence of police witnesses and police.

The courts have denied me any contact or knowledge of my children for over 13 years, despite not even an allegation I harmed them in any way.

I have never been convicted, or even charged with domestic violence. For 13 years I have been banned from approaching within 5 kilometres of the town my children were taken. This had the deliberate effect of preventing me having any contact with my children. Also I am not even informed which town! How can I comply with the order, if I don't know where the order applies?

Because I have been declared a vexatious litigant, no pro bono system will provide me with legal assistance. I have been compelled to represent myself each time the case is still running.

13 In the original summons seeking revocation of the vexatious litigant declaration, Mr Kay set out a long list of grounds upon which he relied. The following is representative of that list:

That this application be heard before a judge and jury and that the court makes an order that the applicant be represented by a competent barrister and solicitor.

That the court accepts that as the applicant has appeared before twenty six Supreme Court judges and been totally unsuccessful in each appearance before them, this being the case it would just be a continual mockery of justice and a continual denial of natural justice, for him to have this matter heard before yet another judge of this court.

That the court should accept, it is obvious that declaring the applicant a vexatious litigant has not curtailed his applications to the courts, instead it has increased his appearances in court. Only when judges of the Supreme Court begin to seek the truth, instead of rubber stamping the decisions of the lower courts and other judges, will the litigation cease.

That the court accepts that the applicant, eight years ago, was declared a vexatious litigant based on his continual applications to the courts to remove a restraining order in force against him which for 13 years, has had the effect of denying him any contact with his children. Nothing has changed, the courts refuse to remove the order, which banned him from approaching within 5 kilometres of the town his children were taken, despite him not having even been charged with an act domestic violence, little less a conviction.

That the court accepts that declaring the applicant a vexatious litigant, has made his attempts to remove the restraining order difficult if not impossible, due to stigma of the vexatious litigant tag he wears. All the courts are now completely biased against him because of this.

That the court accepts that this situation has become a disgraceful merry-go-round, and resembles a comic-tragic opera, that should be an insult to the court. The taxpayer would not appreciate this situation, as it has already cost them in excess of $600,000 to deny the applicant his [sic] any contact or knowledge of his children for over 13 years and criminalise him.

That the court accepts that only after a thorough investigation of all the issues involving the applicant being denied contact with his children for 13 years, and subsequent prison sentences he received, as result of resisting this tyranny and abuse of his civil rights, it would not be possible to claim he has been a vexatious litigant.

That the courts make an order that the documents and particulars he requests, re a compensation payment made to his ex-wife ... and his children, by V.O.C.A.T. be made available to him to prove he is not vexatious, and that contemptible legal tactics lies and perjury have not only jailed him, but have also denied him any contact with his children for over 13 years and poisoned their minds against him.

That the court makes an order that the applicant be able to cross examine witnesses he subpoenas under oath, for him to be able to prove he is not vexatious, and his claims he is a victim of gross injustice, lies and perjury and contemptible legal tactics. (emphasis added).

14 In the affidavit filed in support of that summons, similar claims were made. The affidavit began as follows:

That until the Supreme Court seeks the truth in this saga, the litigation will continue.

That no sane or fair minded person after reading the material contained in this affidavit, and if I can prove under oath that my claims are true, could deny that I am not the vexatious party, instead that I am the victim of vexatious actions, lies and perjury, eagerly maliciously accepted by corrupt police and judiciary.

In my previous affidavits, already on the court file, I have outlined the lies and perjury and the police involvement. Signed before the prothonatory of the Supreme Court.

Marked exhibit 'B' under the heading Who is vexatious? Me? Or the system? This is an overview of the many examples of my 'vexatious actions' compared to those of the courts, police, politicians and others. I have signed this document under oath.

For the courts to claim the evidence I wish to present to the courts, once I have copies of all particulars and documentation, re the compensation payment made to my ex-wife, ... and my children, by V.O.C.A.T., would not reveal new facts and circumstances, and not reveal a change in circumstances, is simply not true and a mockery of justice.

I wish for all the documents and particulars, and all affidavits, I request, re the compensation payment, paid by V.O.C.T., to [my ex-wife] and my children, be made available to me, not just at the court appearance, but also allowing me time, for me to prepare my cases to the courts. These documents will reveal the treachery that has denied me my children, and will prove that I am not vexatious, and how I have been trying to get the courts to seek the truth and not just rubber stamp previous court decisions.

...

I am being denied my basic rights to prove that I am not vexatious, and that I am trying to prove that legal tactics, lies and perjury have been used to jail me and deny me any contact with my children - now for over 13 years, and has poisoned their minds against me. Until I can place witnesses in the witness box to give evidence under oath, the truth will not be revealed, and the injustice will continue, at a great cost to the taxpayer, and I will continue to be denied contact with my children, and possibly even jailed again.

- a freedom of information request relating to the award of victims of crime compensation to his ex-wife and children;

- a questionnaire prepared by Mr Kay, intended to be answered by politicians, regarding what he describes as 'the abuse of children when denied their father's protection by the use of restraining orders.'

16 In the course of the hearing before Warren CJ, Mr Kay also tendered a copy of a letter dated 9 May 2006 which he had written to the then Federal Treasurer, Mr Costello, setting out his grievances; a letter dated 17 November 1995, addressed to the Legal Aid Commission of Victoria, from Messrs Coadys, seeking legal assistance for a Family Court appeal by Mr Kay and setting out a long list of grounds of appeal; and a copy of the brief reasons given by the High Court in dismissing Mr Kay's application for special leave to appeal against orders of the Full Court of the Family Court, upholding orders that denied him access to his children.

17 Given the nature of Mr Kay's complaints as detailed above, we refer first to this passage from the reasons for judgment of Warren CJ:

[2] It is unnecessary to revisit in any detail the circumstances that underlay the orders whereby the applicant was declared a vexatious litigant. Those matters are set out in considerable detail in the judgment of Eames J. However, for convenience, it is useful to set out some of his Honour's observations:

... in the years after the 1989 breakdown of his second marriage, Mr Kay lost custody and access to his three children and had intervention orders made against him by magistrates, the breach of which subsequently led to his arrest and imprisonment on a number of occasions, and, indirectly, to his imprisonment for criminal threats made against his former wife's solicitor. Mr Kay has not seen his children, nor known their whereabouts, for more than five years.

[3] Justice Eames continued, noting that Mr Kay had become

... a trenchant critic of the legal system, and of judges, magistrates and lawyers ... He is entitled to be a critic of the legal system, but his criticisms are frequently made in the most outrageous, and contemptuous, terms, often accompanied by apparent threats of violent outcomes should he not get his way.

[4] Relevantly, Eames J observed that Mr Kay

... is quite incapable of objectively assessing facts ... As an advocate in his cause he is quite hopeless. The frequent excess of language, the loud exchanges, the refusal to address unpalatable facts - which are frequent features of his conduct of proceedings - coupled with his lack of legal training, combine to make it almost impossible for him to personally present his case, adequately, to the court.

18 As the Chief Justice said in her reasons, before the Court could exercise its discretion under s 21(2) of the Supreme Court Act 1986 to set aside or revoke the vexatious litigant declaration, the Court would have to be persuaded that the circumstances had so changed from those prevailing at the time of the making of the original order that there was no real risk of the defendant engaging further in conduct of the kind which attracted the making of the order.[6] Her Honour then said:

It is to be observed that the applicant's present summons is cast in similar terms to the previous summons that were the subject of orders of other judges of this Court. Careful scrutiny of the affidavit of the applicant, sworn 5 May 2006, leads to the conclusion that there has been no change in the circumstances of the applicant such as to warrant setting aside or varying the orders made originally by Eames J, on 23 February 1999. The affidavit indicates that Mr Kay remains preoccupied with the actions of his former wife and the denial of access to his children; that he believes that judges and magistrates are corrupt and that the system is at fault not him; that he wishes to re-ventilate matters arising out of previous litigation and which are now closed; and that he, in essence, wishes to re-litigate matters that have been finally disposed of by the courts.

19 In our view, these conclusions were unarguably correct. Sufficient of Mr Kay's written material has been set out above to demonstrate that no other conclusion could have been arrived at. Mr Kay makes no secret of his continuing dissatisfaction with a variety of court decisions, adverse to him, in respect of which he has exhausted all of his appeal rights. He wants to re-agitate the issues of fact and law involved, including the cross-examination of witnesses. He seems unable to accept that that course of action has long since ceased to be open to him.

20 Mr Kay took particular objection to the following paragraph from the Chief Justice's reasons:

[11] Furthermore, whilst during the present hearing Mr Kay remained calm and courteous to the Court, his capacity to comprehend the nature of the application, the history of his circumstances, and the relevance of matters that he purported to raise, lead to a concern that his condition has deteriorated since the orders made by Eames J in 1999. Indeed Mr Kay indicated that he had psychological difficulties and had undergone treatment. It might be that he should probably be the subject of representation by a litigation guardian. The Court is in some difficulty, of course, in making an assessment of the applicant's psychiatric condition.

21 In his appearance before this Court, Mr Kay strenuously denied having said anything to her Honour about having had psychological treatment. Nor, he said, had he ever had any such treatment. The transcript of the hearing before the Chief Justice does not record Mr Kay as having made a reference to treatment. Counsel appearing for the Attorney-General informed the Court that, having reviewed the transcript, she was not able to identify a basis for that statement in the reasons. Counsel submitted, and we agree, that the entire tenor of paragraph 11 of the Chief Justice's reasons was to express concern for Mr Kay's health and welfare and for the heavy toll which his continuing sense of grievance must be exacting. We can only conclude that there was a misunderstanding about what had been said. It is important, nevertheless, that the record be corrected, as Mr Kay has requested. We therefore note that there is no record of Mr Kay informing the Court that he had had psychological treatment and that part of the reasons for judgment of May 2006 should therefore be viewed as incorrect.

22 As we have said, the apparent error had no relevance to Mr Kay's claim to the relief he sought. Her Honour dismissed the summons for the reasons set out earlier.

That her Honour should not have heard the matter as the applicant had requested that the application be heard before a judge and jury, and he did not agree to her ignoring this request and for her to proceed with the case.

24 Her Honour made no error in refusing the applicant's request for a jury. The constitutional guarantee of a jury trial applies only to indictable offences under federal law. It is wholly irrelevant to the present proceeding.

25 Order 47 of the Rules deals with the mode of trials. Rule 47.02(1) states that a proceeding founded on contract or tort shall be tried with a jury in certain circumstances. Rule 47.02(2) states that any other proceeding shall be tried without a jury, unless the Court otherwise orders. Applications of this kind are invariably, and properly, dealt with by a judge sitting alone.

26 Towards the end of his oral submissions, Mr Kay said:

My representative in Parliament is going to have to investigate this. This is where I come to the matter that really upsets me ... I have every right to criticise the Family Court in the strongest terms, not to go to gaol for four months. It's a ridiculous ... Unless the politicians are going to investigate it ... I won't be leaving his office until he promises me he's going to take action on it. I regard that as absolutely despicable.

27 This statement may reflect a growing realisation on Mr Kay's part that his grievances cannot now be redressed within the legal system and that his continued attempts in the Supreme Court to have the vexatious litigant declaration revoked are futile. As this application illustrates, those attempts are futile because they are based on a fundamental internal contradiction. Mr Kay wants to have the declaration removed so that he can continue to pursue his objective of righting the wrongs which he believes were done to him by the various decisions made by various courts and tribunals over the years. But it was, of course, his very pursuit of that goal by persistent litigation which, almost ten years ago, formed the basis of the vexatious litigant declaration against him.

28 If he is to obtain any remedy, it must now be sought outside the legal system.

[1] Attorney-General (Victoria) v Kay [1999] VSC 30.

[2] See Kay v Attorney-General (Victoria) [2000] VSCA 176; (2000) 2 VR 436; Attorney General v Kay [2005] VSC 349; Attorney-General (Victoria) v Kay [2005] VSC 426; Attorney General (Victoria) v Kay [2006] VSC 9.

[3] [2000] VSCA 176; (2000) 2 VR 436.

[5] Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 438 (Murphy J).

[6] Bienvenu v Attorney General for Victoria [1982] VicRp 58; [1982] VR 563, 565; Kay v Attorney-General [2000] VSCA 176; (2000) 2 VR 436, 444.