Kay v Attorney-General for the State of Victoria [2010] VSCA 27

1 On 23 February 1999, the applicant, Mr Kay, was declared to be a vexatious litigant, pursuant to s 21 of the Supreme Court Act 1986 (Vic). Having made that declaration, Eames J ordered that Mr Kay be restrained from commencing or continuing any legal proceeding without leave of a judge of the Supreme Court.[1] His Honour said in his reasons:

... [T]he conduct of the defendant is manifestly that of a vexatious litigant. The proceedings, to a significant degree, have failed to disclose a proper cause of action and have manifested a determination to ignore past adverse rulings and to re-litigate matters which he has repeatedly been told can not be litigated. Mr Kay is using the legal process for the purpose of waging a campaign, primarily against the Family Court. His pleadings often employ the strident language which he uses in his campaign waged outside the court precincts, and his pleadings are similarly unrestrained by reference to legal principle. Furthermore, Mr Kay has brought proceedings in Victorian courts habitually, persistently, and without reasonable cause, and will continue to do so unless restrained from so doing without the leave of the Court ...[2]

2 Since then, Mr Kay has made numerous applications to the Court seeking to have the declaration set aside or overturned.[3] The most recent was an application heard by Cavanough J on 26 May 2009, for an order under s 21(5) of the Supreme Court Act 1986 (Vic) revoking or setting aside the orders made by Eames J. In the same proceeding, Mr Kay also sought leave (pursuant to the orders of Eames J and pursuant to s 21(4) of the Supreme Court Act 1986 (Vic)) to proceed with an appeal or application for review which he has purported to lodge with the Victorian Civil and Administrative Tribunal ('VCAT').

3 So far as relevant, s 21(4) of the Act provides:

Leave must not be given unless the Court ... is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal.

The onus is on Mr Kay to show that the proceedings will not be an abuse of process.[4]

4 Cavanough J dismissed the application for revocation, and refused leave to proceed with the VCAT action. Mr Kay now seeks leave to appeal from the orders of Cavanough J. In our view, for reasons which follow, there is no arguable ground of appeal. The decision of Cavanough J was entirely correct, for the reasons which his Honour gave. Accordingly, the application for leave to appeal will be refused.

5 In a summons dated 4 September 2009, Mr Kay identified the following three proposed grounds of appeal:

• since the Attorney-General did not make an appearance before Cavanough J, both applications should have been upheld, as they were unopposed;
• he was denied natural justice by the judge; and
• he had been denied his 'basic rights under the Australian constitution and the United Nations 'Declaration of Human Rights''.

That this matter should not be heard until the applicant has been supplied with all the relevant documents he requests to enable him to support his three applications and to enable him to prove that he is not a vexatious litigant.

That the hearing be heard before a judge and jury.[5]

6 In his affidavit in support of the application for leave to appeal, Mr Kay said:

For the courts to continually dismiss my applications to remove my vexatious litigant status, and other issues based on decisions by previous judges is wrong by law, and is a denial of natural justice, as every judgment was illegal.

... I have been denied legal representation in my hearings and compelled to represent myself, and as a consequence every application I have made to remove this status has been dismissed.

(We should point out that the question of legal representation was comprehensively dealt with by Nettle JA in Kay v Attorney-General.)[6]

7 Exhibit B to the affidavit is a letter written by Mr Kay to the Attorney-General dated 29 August 2009, outlining the impact which he says the vexatious litigant declaration has had on his life. Exhibit C includes a list of the charges that have been brought against Mr Kay; strongly-worded complaints he has made about the fact that he has been jailed a number of times; and a copy of a 2002 letter from Mr Kay concerning these grievances addressed to various heads of jurisdiction State and Federal.

8 Exhibit D is a copy of a similar letter from Mr Kay in 2006, addressed to the Victorian Premier and Attorney-General and to the various heads of jurisdiction. The letter complains about the treatment he has received, and asserts that 'for over 13 years the courts have denied me any contact with my children, and jailed me, based on fabricated evidence.' The letter concludes: 'This letter has been sent to judges, politicians, the media and others, and is being circulated worldwide on the internet'.

9 Exhibit E is a document containing photos of Mr Kay with his children and further strongly-worded criticisms of the fact that various court decisions have denied him access to his children. The letter contains a similar statement about worldwide circulation.

10 As these documents make clear, Mr Kay's true complaint now - as it has been for many years - is far broader than the issues raised by this application for leave to appeal.

11 Cavanough J dealt first with Mr Kay's application for an order under s 21(5) of the Supreme Court Act 1986 (Vic) revoking or setting aside the orders made by Eames J. As he said in his reasons, an application under s 21(5) should not be allowed unless there has been such a change in relevant circumstances since the making of the order that there is no real risk of the applicant engaging further in conduct of the kind which attracted the making of the order.[7] His Honour then said, '[t]he matters on which [Mr Kay] relies in support of his present application for revocation of the declaration do not differ, in substance, from the matters on which he has relied numerous times in the past, without success'.[8] He therefore refused the application.

12 With respect, this conclusion was clearly correct. The affidavit material and supporting documents, and in particular Mr Kay's continued reliance on documents which he created in 2002 and in 2006, demonstrate that nothing has changed.

13 Cavanough J then turned to the summons seeking leave to proceed with the VCAT action. The action Mr Kay sought to bring in VCAT was an appeal against a decision of the Victims of Crime Assistance Tribunal ('VOCAT') refusing him access to documentation concerning a compensation payment which Mr Kay believes was made to his former wife and his children. Cavanough J found that VCAT had no jurisdiction to review decisions made under the Victims of Crime Assistance Act 1996 (Vic) and, further, that VOCAT was not subject to the Freedom of Information Act 1982 (Vic) and so was not obliged to provide the documents sought by Mr Kay.[9] Therefore, Cavanough J concluded that '[s]ince the proceeding at VCAT in respect of which leave is sought is foredoomed to fail, Mr Kay is unable to satisfy the Court that it will not be an abuse of process'.[10]

14 Once again, in our view, this conclusion was clearly correct.

15 In the course of the hearing, Mr Kay's attention was drawn to what was said by Maxwell P and Forrest AJA in December 2008 in Kay v Attorney-General for the State of Victoria[11] (when refusing Mr Kay leave to appeal against the decision of Warren CJ refusing his application to set aside or overturn the vexatious litigant declaration). The reasons recorded that towards the end of his oral submissions on that application, Mr Kay had 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.

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.[12]

17 The present application revealed, once again, the essentially political nature of the campaign Mr Kay is waging for redress of his grievances. In oral argument he said:

If I can challenge the Attorney-General that I've been wronged and lies and perjury have been used in court, and it's supposed to be illegal, perjury, then he should open up the case again and have an investigation.

...

I've written to [the Attorney-General] and the Director, the Department of Public Prosecutions ... but neither of them bothered to reply, and I feel that this is something that Justice Cavanough should have made an issue of, that I'm trying to get justice through the system, and I shouldn't just be wiped out. ... I wrote a letter to every Victorian politician that caused a security alert in Parliament, and was the major headlines in the Melbourne Age and Herald Sun and was the main news on television that night.

...

There's something very funny going on here, and there must be judicial corruption behind it.

18 In response, we again pointed out to Mr Kay that the Court is not in a position to address his broader concerns, as we do not operate as a general court of enquiry. We pointed out that the function of the Court was very narrow, being confined to deciding whether or not there was some error in the decision below.

19 This latest attempt by Mr Kay to have the vexatious litigant declaration set aside was, quite simply, an abuse of process. Having had the futility of such applications pointed out to him, he persists in making them - and proceeds to use the hearing, quite improperly, as a forum to ventilate his grievances. We repeat what was said in Kay v Attorney-General for the State of Victoria:[13] if Mr Kay is to obtain any remedy, it must now be sought outside the legal system.

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

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

[4] Phillip Morris Ltd v Attorney-General (Vic) [2006] VSCA 21; (2006) 14 VR 538, [116] and see also [113]-[114]; Attorney-General v Clemens (No 3) [2009] VSC 297, [2].

[5] This kind of application is properly heard by a judge sitting alone. See Kay v Attorney-General for the State of Victoria [2008] VSCA 285, [24]-[25].

[6] (Unreported, Victorian Court of Appeal, 19 May 2009), [10]-[12].

[7] Attorney-General for the State of Victoria v Kay [2009] VSC 337, [8].

[11] [2008] VSCA 285.

[13] [2008] VSCA 285, [28].