Martin v Attorney General for the State of New South Wales

Court of Appeal (NSW)|2014-03-24|Before: Basten JA, Leeming JA, Hidden J

Judgment 1BASTEN JA: As the Attorney General conceded, the appeal must be allowed. I agree with the orders proposed and the reasons given by Sackville AJA. 2LEEMING JA: I agree with Sackville AJA. 3SACKVILLE AJA: On 24 March 2014, this Court granted the appellant leave to appeal from orders made in relation to him under the Vexatious Proceedings Act 2008 (NSW) (VP Act). The orders, made by a Judge of the Supreme Court (Hidden J) on 5 March 2013, were as follows: "1 That, pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008, all of the proceedings in New South Wales already instituted by the defendant are stayed with the exception of the outstanding issue of costs in the Land Environment Court proceedings 80006/2010. 2 That, pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, the defendant be prohibited from instituting proceedings in New South Wales without the leave of this court. 3 The defendant is to pay the plaintiff's costs of the proceedings." 4The primary Judge made the orders the day after hearing an application under the VP Act brought by the respondent (Attorney General). However, the reasons were not given until about two months later: Attorney General of New South Wales v Martin [2013] NSWSC 442 (Primary Judgment). As will appear, his Honour took this course because counsel for the Attorney General requested him to make the orders as soon as possible after the hearing. It appears that the purpose of the request was to ensure that the orders would come into force before the scheduled resumption of proceedings in the Land and Environment Court to which the appellant and the State (or an agency of the State) were parties. 5At the conclusion of the hearing in this Court on 24 March 2014, the following directions were made in addition to the grant of leave to appeal: "2 Direct that written submissions be filed to address the following issues: (a) the dual role of the Attorney General as moving party under the Vexatious Proceedings Act and as the first law officer of the State in litigation with the person the subject of the present application; (b) whether sufficient findings were made by the trial Judge to satisfy s 8(1)(a) of the Vexatious Proceedings Act; (c) whether the trial Judge addressed the discretion whether to make the order, if the power were engaged; (d) if there were a miscarriage of the proceedings in the Court below, should this Court make final orders or remit the matter for further consideration in the Division; (e) whether, having filed written submissions, the parties wish to have a further oral hearing."

The Parties' Submissions 6After these directions had been made, the Crown Solicitor advised the Court that the Attorney General accepted that the primary Judge's findings were insufficient to satisfy s 8(1)(a) of the VP Act. The Crown Solicitor also advised that the parties had agreed that the following orders should be made: 1 Appeal allowed. 2 The orders made by Hidden J on 5 March 2013 be set aside. 3 The Attorney General pay the Appellant's costs of the proceedings, including costs in the Court below, on a litigant in person basis. 7The Crown Solicitor requested further time to make submissions as to whether the proceedings should be remitted to the Common Law Division of the Supreme Court to enable all outstanding issues in the proceedings to be determined. The appellant submitted that the Attorney General's application for vexatious proceedings orders should be dismissed and that this would complete the proceedings. 8The Court informed the parties that it was prepared to make the consent orders and would do so at the time the question of remitter was determined. In the meantime, the Court directed the parties to file brief written submissions on that question in accordance with a specified timetable. The parties complied with the Court's directions. 9The Attorney General, although accepting that the primary Judge had erred in failing to make the findings necessary to enliven the power in s 8(1)(a) of the VP Act to make vexatious proceedings orders, submitted that the matter should be remitted to the Supreme Court to enable the Court to deal with the unresolved issues. The Attorney General's submissions identified the issues to be determined in the remitted proceedings as follows: (i) whether any of the judgments relied on by the Attorney General in the proceedings before the primary Judge were "vexatious proceedings" within the meaning of s 6 of the VP Act; (ii) if so, whether the Court should be satisfied that the appellant is a person who has "frequently instituted or conducted vexatious proceedings in Australia", within the meaning of s 8(1)(a) of the VP Act; and (iii) if so, whether the Court should exercise the discretion conferred by s 8(1) of the VP Act to make a vexatious proceedings order in relation to the appellant. 10The Attorney General also submitted that the proceedings should be remitted in order to enable the Court to address an issue that had been identified for the first time on the appeal. This was a reference to a question raised by members of this Court when it became apparent that the primary Judge had been asked by the Attorney General to make vexatious proceedings orders at, or as soon as possible after, the hearing. Counsel for the Attorney General explained the urgency to the primary Judge by saying that the orders were: "important for the [Attorney General] in terms of ... a case that is going on this week part ... heard before Justice Pain." 11Members of this Court pointed out that a question might arise as to whether the Attorney General was entitled to exercise the statutory power to institute proceedings seeking vexatious proceedings orders, if one objective of the application was to terminate pending proceedings between the litigant concerned and the State (or an agency of the State). The Court noted that the request to the primary Judge to make the vexatious proceedings orders urgently seemed to raise the possibility that the application for those orders was instituted with a view to terminating the pending proceedings in the Land and Environment Court. If this was so, the Attorney General might be said to have a "dual role": first as a litigant, and secondly as the first Law Officer exercising a statutory power in the public interest. 12The Attorney General contended that if the question of his "dual role" had been raised before the primary Judge, evidence would have been led to address the issue. The precise nature of that evidence was not identified, but it would presumably include evidence as to the relationship, if any, between the institution of the proceedings under the VP Act and the proceedings apparently pending in the Land and Environment Court. The Attorney General's submissions noted that the solicitor who had made affidavits in the proceedings under the VP Act had carriage, on behalf of the State, of various proceedings instituted by the appellant to which the State, in one capacity or another, was a party. The submissions appeared to imply that the evidence would be likely to address the role performed by the solicitor in each of the proceedings. 13The appellant submitted that his claim for damages against the State, which he has pursued in various proceedings, should be referred to mediation, with the mediator to submit a recommendation to the Court. If this option was not acceptable, the appellant appeared to accept that the matter should be remitted to enable the Supreme Court to resolve the outstanding issues concerning the Attorney General's application for vexatious proceedings orders. However, the appellant sought further orders relating to the matters to be canvassed on remittal including, in particular, what was said to be his claim for $500 million in damages against the State.

The Attorney General's "Dual Role" 14The issue concerning the role of the Attorney General is potentially of considerable importance. Section 8(4)(a) of the VP Act, empowers the Attorney General to apply for a vexatious proceedings order. The statutory power of the Attorney General to bring an application against a person who is alleged to have persistently instituted vexatious proceedings has its origins in s 1 of the Vexatious Actions Act 1896 (UK). Similar legislation or rules of court were enacted or promulgated in Australia in the first half of the twentieth century: see Commonwealth Trading Bank v Inglis [1974] HCA 17; 131 CLR 311 at 315-317 (per curiam). 15In New South Wales, the immediate precursor to s 8(4)(a) of the VP Act was the now repealed s 84(1) of the Supreme Court Act 1970 (NSW). The latter provision empowered the Attorney General to apply for an order prohibiting a vexatious litigant from instituting any legal proceedings in any court without leave of the Court. Section 84(1) did not authorise any other person to apply for an order of that kind, although a party against whom a vexatious litigant habitually and persistently instituted legal proceedings could apply for a more limited order against the litigant: s 84(2); see, generally, Attorney General v Wentworth (1988) 14 NSWLR 481; Attorney General for New South Wales v Solomon (1987) 8 NSWLR 667. 16Under s 8(4) of the VP Act, an authorised court may make a vexatious proceedings order of its own motion. Section s 8(4) provides that, in addition to the Attorney General and the court acting of its own motion, any of the following persons may apply for a vexatious proceedings order: "(b) the Solicitor General, (c) the appropriate registrar for the court, (d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings, (e) a person who, in the opinion of the court, has a sufficient interest in the matter." A person with a "sufficient interest", however, may only apply with the leave of the authorised court: s 8(5). 17The rationale for legislation or rules of court providing for the making of orders against vexatious litigants is generally said to be the need to curtail abuses of the process of the Court and to reduce the hardship to persons against whom vexatious proceedings are instituted and pursued: Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488 (Yeldham J). In Teoh v Hunters Hill Council (No. 8) [2014] NSWCA 125, this Court said (at [56]) that the purpose of the power to make vexatious proceedings orders under the VP Act is: "to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits." (Citation omitted.) 18It appears that no court in New South Wales has yet considered whether it is both appropriate and consistent with the rationale underlying the VP Act for the Attorney General to apply for a vexatious proceedings order against a person engaged in litigation against the State or an agency of the State. In this connection, it may be relevant that s 8(4)(d) empowers "a person against or in relation to whom another person has instituted or conducted vexatious proceedings" to apply for an order. It may be that the Attorney General is to be regarded as in the same position as any other litigant who is the subject of vexatious proceedings and who is entitled to seek a vexatious proceedings order. 19Since counsel for the Attorney General has indicated that she wishes to have the opportunity to adduce evidence relating to this issue, that opportunity should be provided. An order remitting the matter to the Common Law Division of the Supreme Court will enable evidence to be adduced. Findings made by the Court on remitter will provide a factual basis for determining whether it was appropriate for the Attorney General to institute and pursue the application for vexatious proceedings orders against the appellant.

The Vexatious Proceedings Order 20The Attorney General's consent to orders allowing the appeal and setting aside the orders made by the primary Judge doubtless owes something to the course of argument in this Court. Members of the Court pointed out that the primary Judge appears to have found that a number of proceedings were "vexatious" within the meaning of s 6 of the VP Act, when the basis for those findings is not clear. Examples include proceedings in the Supreme Court of the Australian Capital Territory to which the appellant was not a party (Items 30 and 36 in a list provided by counsel for the Attorney General to the primary Judge, which is an Attachment to the Primary Judgment), or in relation to which the primary Judge held the appellant responsible for extensive delays when no finding to that effect was made by the trial Judge in the proceedings (Item 33). 21The primary Judge also appears to have found that each of eleven matters identified by the Attorney General (Items 1-11) was instituted or pursued by the appellant without reasonable ground (VP Act, s 6(c)), and that one of these (Item 8) was conducted "in a way so as to harass or annoy, cause delay or detriment" (s 6(d)). However, at least one of these matters was not relied on by the Attorney General before the primary Judge (Item 3). In another matter, the appellant was legally represented. The argument advanced by the legal representative was rejected, but the Court did not suggest that the proceedings were necessarily misconceived or had been instituted without reasonable grounds (despite the case not having been properly pleaded) (Item 2). Other matters in the group of eleven are not specifically referred to in the Primary Judgment, so it is not clear why he found these proceedings to be vexatious. 22To be fair to the primary Judge, it should be said that the summary of proceedings prepared on behalf of the Attorney General and incorporated in the Primary Judgment as an Attachment contains some inadvertent errors and omissions. His Honour may have relied on some matters in the summary which, on closer examination, appear not to satisfy the definition of "vexatious proceedings" in s 6 of the VP Act. 23Section 75A(10) of the Supreme Court Act 1970 (NSW) provides that the Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires. Uniform Civil Procedure Rules 2005 r 51.53(1) states that the Court is not to order a new trial on the ground of error of law or any other ground unless it appears that a substantial wrong or miscarriage has thereby been occasioned. 24The consent orders proposed by the parties correctly proceed on the basis that the primary Judge erred in determining that vexatious proceedings orders should be made against the appellant. These orders, unless set aside, have very serious consequences for the appellant and the making of the orders involved, in the language of UCPR r 51.53(1), a substantial wrong. The material before this Court is not complete and the Court has not had the benefit of argument on the merits of the Attorney General's application. Thus the Court is not in a position to determine whether the Attorney General's application for vexatious proceedings orders should ultimately succeed or fail. A further hearing on the merits of the application is necessary. 25In the remitted proceedings it will be necessary to make findings as to whether each of the proceedings relied on by the Attorney General satisfies the definition of "vexatious proceedings" in s 6 of the VP Act. If only some of the proceedings satisfy the definition, it will then be necessary to decide whether the appellant "has frequently instituted or conducted vexatious proceedings in Australia" (s 8(1)(a)). If the answer is yes, the final question to be answered under the VP Act is whether the Court should exercise the discretion conferred by s 8(1) to make vexatious proceedings orders against the appellant. These are issues that should be resolved by the Supreme Court on remitter. 26There is no basis for the appellant's damages claim to be remitted or to be subject to an order for mediation. The only matter presently before this Court is the appeal from the vexatious proceedings orders. The damages claim will have to be addressed, if at all, in separate proceedings.

Orders 27For the reasons that have been given, the proceedings should be remitted to the Common Law Division of the Supreme Court. This will enable the Court to revisit the question of whether vexatious proceedings orders should be made against the appellant and to address any issues arising out of the "dual role" apparently performed by the Attorney General. 28The following orders should be made: 1 Appeal allowed. 2 The orders made by Hidden J on 5 March 2013 be set aside. 3 Remit the proceedings to the Common Law Division of the Supreme Court for hearing and determination in accordance with law. 4 The Attorney General pay the Appellant's costs of the proceedings to date, including costs in this Court and in the Court below, on a litigant in person basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2014

Supreme Court Act 1970(NSW)ss 75A(10), 84

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