Lohe v Tait [2002] QSC 399

[1] WILSON J: There are three applications before the Court, all in proceeding S5757/02:

(i) originating application by Conrad Wilhelm Lohe (the Crown Solicitor) filed on 25 June 2002 that William Peter Tait be declared a vexatious litigant pursuant to s 3 of the Vexatious Litigants Act 1981;

(ii) application by Mr Tait filed on 12 July 2002 proposing decisions without an oral hearing - principally that the Crown Solicitor's application be struck out and service set aside, and directions including that the Crown Solicitor's application be transferred to Townsville;

(iii) further application by Mr Tait filed on 5 August 2002 for a decision without an oral hearing - seeking orders that service of material by the Crown Solicitor be set aside, that the entire proceeding S5757/02 be struck from the Court's records, and that the Crown Solicitor pay him $4763.38 (apparently by way of costs).

[2] On 16 July 2002 Byrne J ordered that the first two applications be adjourned to 13 August 2002.

[3] I am satisfied that the Crown Solicitor's application was duly served on Mr Tait on 18 July 2002. At the same time he was served with the order of Byrne J adjourning the two applications then before the Court to 13 August 2002, and notice as follows-

"Please note if you require a telephone linkup from Townsville to Brisbane to argue your case the Supreme Court Registrar, Mr Trevor Davern will provide these facilities for you."

See the affidavits of Ian George de Courcey sworn 26 July 2002 and Margot Susan Blue sworn 5 August 2002, both filed by leave on 13 August 2002.

[4] On 13 August 2002 counsel for the Crown Solicitor made oral submissions in support of the originating application filed on 25 June 2002. There was no appearance by or on behalf of Mr Tait. He did not seek to avail himself of the opportunity to make submissions by telephone.

Applications for decisions without oral hearings

[5] Chapter 13 part 6 of the Uniform Civil Procedure Rules provides for the determination of an application on the papers without an oral hearing. It is clearly designed to save parties expense and inconvenience in appropriate cases. Because of the potential interference with the principle of procedural fairness that a litigant is entitled to know the case against him or her and to be heard before a determination is made, there are detailed and mandatory steps to be taken if this process to invoked. Such an application and supporting affidavits must be filed and served in accordance with chapter 2 part 4 of the UCPR. The application must be in the approved form and accompanied by a draft order and written submission in support: r 490 of the UCPR. The draft order and written submission should be served with the application and affidavit material.

[6] On 12 July 2002 Mr Tait also filed a notice of address for service, a conditional appearance and a supporting affidavit. The submissions in support of the application were exhibit CSCWL 4 to the affidavit. The Crown Solicitor received copies of Mr Tait's first application, his conditional appearance and his notice of address for service by post on 18 July 2002. He was not served with the supporting affidavit. No draft order has been filed or served. His counsel submitted that Mr Tait's application could not succeed because it failed threshold jurisdictional requirements for service.

[7] The material filed by Mr Tait on 12 July 2002 was before Byrne J on 16 July 2002. Mr Tait sought an adjournment because of other Court commitments between 16 and 18 July, his limited financial resources and the complexity of the matters in issue, and a transfer of the proceeding S5757/01 [sic] to the Townsville Registry. Between 16 July and 13 August the Crown Solicitor's application was personally served on Mr Tait. There is no evidence of any steps being taken to remedy the deficiencies in service of Mr Tait's material.

[8] On 5 August 2002 Mr Tait filed a further application for decision without an oral hearing seeking (inter alia) an order that service on 22 July 2002 be set aside, a notice of constitutional matters and an affidavit. He filed a further affidavit on 8 August 2002. Counsel for the Crown Solicitor acknowledged that his client had been served with the notice of constitutional matters, but there is no evidence or acknowledgement of service of the other material filed on 5 and 8 August.

[9] I accept the submission of counsel for the Crown Solicitor that the applications for decisions on the papers without oral hearings must fail because mandatory requirements for service have not been met.

[10] On the hearing of the Crown Solicitor's application I asked counsel why the application had been brought in Brisbane rather than in Townsville. He responded that there was not reason for it to be brought in Townsville, and that there was a perceived difficulty in having it heard by "northern Judges" who had dealt with Mr Tait on so many occasions.

[11] The Supreme Court has jurisdiction throughout Queensland. Any proceeding in which it has jurisdiction may be started in any central registry (ie in Brisbane, Rockhampton, Townsville or Cairns): r 33 of the UCPR.

[12] The Court may order the transfer of a proceeding to another registry: r 49 of UCPR. Its discretion to do so is unfettered. Relevant considerations include where the parties respectively reside and or carry on business, the nature of the proceeding, proximity to witnesses, where relevant events occurred, the availability of a Judge to hear the matter, and facilities for receiving submissions and or evidence by telephone or even video link. Mr Tait resides in Townsville and most if not all of his previous encounters with legal processes have arisen out of events there. The Crown Solicitor is based in Brisbane, but he has an office in Townsville. The application is not one on which the Court would ordinarily receive oral evidence. It is appropriate that it be determined by a Judge before whom Mr Tait has not previously appeared, although it should be noted that Brisbane based Judges sit in Townsville from time to time. There would have been no novelty about the Court's receiving submissions from Mr Tait by telephone in a matter such as this: it is a practice commonly adopted in the interests of efficiency and cost saving.

[13] The Crown Solicitor's application was properly brought in the Brisbane registry. I decline to transfer it to the Townsville registry.

[14] Section 78B of the Judiciary Act 1903 provides -

78B (1) Where a cause pending ... in a court of a State ... involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

(2) For the purposes of sub-section (1), a court in which a cause referred to in that sub-section is pending -

(a) may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;

(b) may direct a party to give notice in accordance with that sub-section; and

(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.

(5) Nothing in sub-section (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so."

[15] The notice filed on 5 August 2000 was in the following terms -

"TAKE NOTICE that the respondent one William `Billy' Peter Tait raises the following matters, involving interpretation of the Australian Constitution, in the proceedings to which this notice relates:

1. The Vexatious Litigants Act 1981 (Qld) is one, that, bears on the constitutionally implied freedoms of communication and association, and, in light of the common law requirements for ecologically sustainable development which promote public participation in decision making processes of government (etc) and the nature of our democrotic [sic] society (based on free and fair elections), that Act - or least where litigation that bears on government is concerned - is not one that serves a legitimate end that is compatible with responsible and representative government and the constitutionally prescribed system of democratic election, and is - to that extent - invalid.

2. The said Act, also breaches the constitutionally derived doctrine of the seperation [sic] of powers, in that, it is one which attempts to give the State some opportunity to intervene and thereby have some vestige of control over the process of the Court, and, is therefore, invalid, or, merely at the Courts discretion to apply - without intervention by the State.

3. It ought to be held; that; attempts to perform service of Court papers and related material upon persons who are at the time service is attempted, at or travelling to a government office (including a Court Registry or a Courtroom or place where Court hearings are to be held) with a bona fide intention of conducting business thereat (or even observing proceedings or staging some political protest or demonstration), or, travelling from such places after having conducted such business; are against the constitutionally implied and otherwise established rights to the freedoms of communication and association, in that, such attempts may well act as a deterrant [sic] which unacceptably restricts political activity; and; therefore; invalid attempts, of no real consequence, and indeed, frivolous, vexatious abuses of process."

[16] Mr Tait has not put forward any submissions or evidence in support of his contention that there is a matter arising under the Constitution or involving its interpretation. A mere assertion to this effect is not sufficient to enliven s 78B; it must be made to appear to the Court that there is such a matter: Narain v Parnell [1986] FCA 89; (1986) 9 FCR 479 at 489 per Burchett J .

[17] Like the High Court Rules considered in Jones v Skyring [1992] HCA 39; (1992) 66 ALJR 810, the Vexatious Litigants Act is concerned with the practice and procedure of the Court, reinforcing its inherent power to protect its own process against unjustifiable waste of its time and resources and to avoid loss to those faced with actions lacking any substance. The power to declare someone a vexatious litigant is vested in the Court and not in one of the other branches of government. Thus, there is no infringement of the doctrine of the separation of powers and no incompatibility with the system of responsible and representative government.

[18] There is no substance in the assertion that to serve someone with documents when he or she is en route to or from a government office (including a Court) is to interfere with a constitutional right to freedom of communication or association.

[19] I am satisfied that there is no matter arising under the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act.

[20] By s 3 of the Vexatious Litigants Act 1981 -

"Declaration of vexatious litigants upon application by public officials

3 (1) If the Supreme Court or a Judge thereof is satisfied that a person has frequently and without reasonable ground instituted vexatious legal proceedings or procured vexatious subpoena, summonses to a witness, warrants or process to be issued ... the Supreme Court or such Judge may after hearing such person ... or giving him, her ... an opportunity of being heard, by its, his or her order, declare such person ... to be a vexatious litigant.

(2) An order under this section shall be made only upon the application of the Attorney-General, the Solicitor-General, the Crown Solicitor or the registrar of the Supreme Court at Brisbane, Rockhampton, Townsville or Cairns in the State.

By s 8, a person declared to be a vexatious litigant may not institute proceedings without the leave of the Supreme Court.

[21] In Jones v Cusack [1992] HCA 40; (1992) 66 ALJR 815 Toohey J considered a similarly worded provision in the High Court Rules. His Honour made the following points at page 816 -

* The question is whether the legal proceedings are vexatious, not whether they have been instituted vexatiously. It is not the respondent's belief in the correctness of his arguments with which the Court is concerned.

In Re Cameron [1996] QCA 37; [1996] 2 Qd R 218 Fitzgerald P said at page 220 -

"It is ... necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court's practices, procedures and rulings, persistent attempts to use the court's processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis: see, for example, Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring [1992] HCA 39; (1992) 66 ALJR 810; Jones v Cusack [1992] HCA 40; (1992) 66 ALJR 815, and Attorney-General (NSW) v West (NSW Common Law Division No 16208 of 1982, 19 November 1992, unreported)."

[22] On 10 September 1997 Mr Tait was convicted of the unlawful production and possession of the dangerous drug cannabis sativa and two associated offences. He appealed unsuccessfully to the District Court. Then he applied unsuccessfully to the Supreme Court for judicial review of the District Court decision. Ultimately he applied to the Court of Appeal for an extension of time in which to appeal against his conviction, but his application was dismissed. The Crown Solicitor led evidence of his involvement in these criminal proceedings as background to his subsequent involvement in legal proceedings.

[23] From November 1998 to March 2002 Mr Tait instituted more than 27 proceedings in various Magistrates Courts, the District Court, the Trial Division of the Supreme Court, the Court of Appeal Division of the Supreme Court, the Planning and Environment Court and the Anti-Discrimination Tribunal. I accept the submission of counsel for the Crown Solicitor that while not all these proceedings should be considered vexatious, the frequency test has been satisfied in all the circumstances. My reasons for so concluding will become apparent when I discuss the lack of reasonable grounds for commencing the proceedings and their vexatious character.

[24] (a) In about late 1998 Mr Tait made two complaints to the Anti-Discrimination Commission - one against James Cook University Student Union alleging discrimination because of his political beliefs and the other against Stanwell Corporation Limited alleging discriminatory conduct in not including submissions by him in an impact assessment study in relation to the proposed North Queensland Power Project. The Commission refused to accept the complaints.

(b) On 21 April 1999 Mr Tait filed a 97 page application for a statutory order of review against the Commission, the Student Union and Stanwell Corporation. Subsequently he filed two notices of motion seeking interlocutory injunctions. The injunctions were refused by Jones J on 18 May 1999. Mr Tait filed a notice of appeal.

(c) There were further interlocutory skirmishes - a summons filed by the Anti-Discrimination Commissioner seeking to have the application for statutory order of review dismissed, a notice of motion by Mr Tait seeking directions, another notice of motion by Mr Tait seeking to have the Commissioner's summons set aside, a notice of appeal against the orders of 18 may 1999, a further notice of motion by Mr Tait, applications by the Student Union and Stanwell Corporation to have the application for statutory order of review dismissed.

(d) On 24 August 1999 Jones J dismissed the application for statutory order of review. His Honour said -

"Because of his failure to make the application within time and because I regard that there is no reasonable basis for his application in any event, the claim against the Commissioner should be dismissed."

(e) Mr Tait filed further applications in relation to the statutory order of review on 23 and 30 August 1999. These were dismissed by Jones J on 23 March 2000. His Honour said -

"Where the injustice lies is permitting a litigant to bring frivolous or unmeritorious court actions, causing great expense to the other parties who have no prospect of recovering their costs, if no order to that effect is made."

[25] Mr Tait filed two notices of motion in the Court of Appeal seeking a waiver of filing fees and an extension of time in which to appeal against the order of Jones J made on 18 May 1999. These were dismissed, Pincus JA (with whom McMurdo P and Thomas JA agreed) commenting -

"The substance of the matter is that the application challenges decisions made by Jones J in the telephone hearing which His Honour conducted; the bases of the challenges which are put forward, extracted only with considerable difficulty from a welter of irrelevant observations made by the Applicant, are quite unsound."

[26] On 19 April 2002 the President of the Anti-Discrimination Tribunal gave judgments in two matters brought by Mr Tait. In one he commented -

"Much of the relief sought is not of a kind that could conceivably be granted by this Tribunal."

"The application is incompetent for at least two reasons. First, there is no valid complaint upon which to base the Tribunal's jurisdiction ... second, the relief sought is not of a type that falls within the powers of the Tribunal. I dismiss the application."

[27] On 16 December 1999 Mr Tait filed an application in the Supreme Court to review the decision by Legal Aid Queensland to refuse funding of his litigation in the Anti-Discrimination Commission. The application was dismissed by de Jersey CJ on 1 March 2000. Three days later, Mr Tait sought to have the orders made by de Jersey CJ set aside, and also sought to join the Ombudsman as the Second Respondent. That application was dismissed by Dutney J on 27 July 2001. His Honour said -

"... Because of the fact that the ultimate application has been disposed of, that is of Tait v Walters, everything that follows thereafter has been rendered futile and no useful purpose is sought by making the orders sought (Transcript page 4) ... That matter alone rendered the application of 16 December 1999 of no further utility, which rendered everything subsequently, including the applications before me today, similarly lacking in utility. It seems that I should order the Applicant to pay the Respondent's costs of the application (Transcript page 5)."

[28] Mr Tait filed an application in the Supreme Court seeking a statement of reasons for a decision by Legal Aid Queensland to refuse to fund his litigation in relation to a trade permit matter. Cullinane J dismissed the application on 1 December 2000. His Honour said -

"The Applicant did not exercise his right to have the decision reviewed (Transcript page 5) ... Having regard to the matters ... in particular that the decision of the local authority has been set aside, it seems to me plain that on any application for judicial review it would be in the interests of justice that the application be dismissed (Transcript page 6)."

Subsequently Mr Tait filed another application requesting that the matter determined by Cullinane J be heard again. The further application has not been listed for hearing yet.

[29] On 3 April 2001 Cullinane J refused another application for statement of reasons for a decision by Legal Aid Queensland to refuse funding of Mr Tait's litigation in respect to a marine authority matter. On that occasion His Honour said -

(a) proceedings before the AAT have been disposed of;

(b) the Applicant did not appeal against the order of the AAT refusing him leave to become a party and is now out of time to do so;

(c) he did not exercise his right to appeal to an External Review Officer;

(e) the application was in such vague and confused terms as to virtually invite refusal.

I think the appropriate course is to ... refuse the order for the provision of reasons. It does not seem to me any good purpose could now be served by making such an order." (Transcript pages 7 to 8).

[30] Mr Tait filed two applications in the Planning and Environment Court of Queensland in 2000 and 2001, which were dismissed by Wall DCJ on 16 October 2000 and 3 January 2001 respectively. In relation to the first application His Honour said -

"I recognise that the general rule in this Court is that each party to a proceeding must bear the party's own costs of the proceedings. However, the circumstances are quite unusual in this case and there is such an absence of merit in the application that for any one of the various reasons relied upon by the Respondents, they are each entitled to their costs."

Mr Tait sought to file by post an application for leave to appeal that decision, but failed to provide the correct postal dealing fee and the appeal period lapsed. In relation to the second application His Honour said -

"On balance, there is, in my view, no substance in the Applicant's argument, and even if there was any, the discretionary factors are such as to warrant the proceeding being categorised generally as frivolous and vexatious."

[31] On 18 May 2001 Mullins J dismissed an application brought by Mr Tait in the Supreme Court to be joined as a party to litigation involving the North Queensland Conservation Council. Her Honour noted "... the complete lack of merit of the Respondent's application ..." (Transcript paragraph 5)

[32] Mr Tait filed an application in the Supreme Court appealing against a decision of the Small Claims Tribunal. (He had been excluded from occupancy at Rotary International House at James Cook University, and was unsuccessful in obtaining the relief sought from the Small Claims Tribunal). On 15 June 2001 de Jersey CJ dismissed the application and said -

"He has, in fact, in terms of para B of that section, been wholly unsuccessful, and in my view, the application did not disclose a reasonable basis for the reasons which I have expressed when dealing with the merits of the matter."

Mr Tait then appealed to the Court of Appeal against the decision of de Jersey CJ. This too was dismissed, with Thomas JA, Douglas and Mullins JJ finding that -

"There is clearly no error of law or fact in the reasons of the Chief Justice ..."

"There is no basis whatsoever for the Appellant to impugn the exercise of the discretion of the Chief Justice to refuse that oral application of the Appellant."

[33] (a) Mr Tait sought to file two applications in the Supreme Court appealing against decisions of a Magistrates Court under the Peaceful Assembly Act 1992 without paying the requisite filing fees. On 2 March 2001 Cullinane J ruled that in each case Mt Tait was required to pay the filing fees before the applications could be filed.

(b) In early 2001, Mr Tait sought to make an application in the Supreme Court for leave to issue an originating process (seeking to review the order that he pay the Anti-Discrimination Commission's costs) without paying the filing fee. On 19 February 2001 Cullinane J refused the application for leave because there was no evidence in support of such a claim.

(c) In early 2002, Mr Tait attempted to file an application for a rehearing of the facts relating to the Rotary International House matter without paying the filing fee. The application was not accepted by the Registrar due to Mr Tait's failure to pay the filing fee. Subsequently Mr Tait commenced an action against the Registrar seeking an order that he be exempted from the payment of filing fees. On 21 February 2002 Cullinane J rejected the application and told Mr Tait to stop wasting the Court's time.

[34] (a) There were further problems with inadequate filing of court documents. In early 2001 Mr Tait attempted to file a document titled "Proposed Application Without An Oral Hearing For Statutory Order For Review" without paying the appropriate filing fee. On 12 February 2001 Moynihan SJA directed the Registrar to refuse to issue the process without the leave of the Court.

(b) In early 2002, Mr Tait left some material at the counter of the Townsville Supreme Court Registry without any indication as to which proceeding the documents related to, so the documents had to be returned to him. He later attempted to file further material in the Brisbane Supreme Court Registry by way of letter. That material was the subject of a direction under r 15(2)(a) made by de Jersey CJ on 19 March 2002 -

"... I direct the Registrar to refuse to issue this material and I make the further directions that no similar material be permitted to be issued by Mr Tait without an ex parte application for leave having been heard by a Judge of this Court, and further that any ex parte application submitted for issue must be in accordance with Form 5 of the Uniform Civil Procedure Rules and be accompanied by the prescribed filing fee claimed by the Registrar. Further direct that the material of Mr Tait forwarded to the Court be returned together with two money orders in the amount of $26 and $6.10 respectively."

[35] This litany of baseless applications and appeals to the Court and the Anti-Discrimination Tribunal, and attempts to abuse the Courts' processes satisfies the test of the institution of vexatious legal proceedings frequently and without reasonable ground in s 8 of the Vexatious Litigants Act 1981.

[36] I declare Mr Tait a vexatious litigant pursuant to s 3 of the Vexatious Litigants Act 1981.

[37] I dismiss the applications filed by Mr Tait on 12 July 2002 and 5 August 2002.