NSW Land & Housing Corporation v von Reisner

Legal parameters 8 With this background I turn to discuss the matters which need to be established before an order can be made under s 84. Section 84(2) is in the following terms: "Where any person (in this subsection called the vexatious litigant ) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the person aggrieved ), whether in the Court or in any inferior court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court." 9 There are a number of concepts involved in this provision. First, the person against whom the order is sought must have instituted legal proceedings, either in this Court or in any inferior court. In the present case this requirement raises two issues: first, what constitutes the "institution" of legal proceedings; and second, where they were instituted. 10 Dealing first with the second issue; s 84(2) in its terms applies only to proceedings instituted in this Court or in any inferior court. This excludes from consideration proceedings instituted in tribunals such as the Residential Tribunal or the CTTT. Proceedings in the DDT are, however, included, as s 4(2) of the DDT Act provides that that Tribunal is a court of record. The exclusion of CTTT proceedings significantly reduces the number of proceedings to be considered in this application. 11 I turn to discuss what constitutes the "institution" of proceedings. In Attorney-General v Wentworth (1988) 14 NSWLR 482, Roden J grappled with this issue. He made the following observation: "I regard Commonwealth Trading Bank v Inglis as authority for the proposition that interlocutory proceedings taken in the course of an action, no matter by whom they are instituted, are subject to the inherent power of the court to protect its process from abuse. In so far as they are interlocutory proceedings in a pending action, they are not, in my view, 'proceedings instituted' for the purposes of s 84. However, if they seek substantive relief, and particularly if they seek to bring an additional party into the proceedings, they are capable of being so regarded, even if they are properly commenced by notice of motion in existing proceedings. Like many before me, I decline the opportunity to produce a definition of 'the institution of proceedings' for present purposes, a task described as 'almost impossible' by Willmer LJ in Re Vernazza (at 215)." 12 In the earlier case of Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488, Yeldham J said as follows: "While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be hand and not to its form." 13 The second major requirement under s 84 is that proceedings have been instituted "habitually and persistently". As to this, Roden J in Wentworth made the following observation at p 492: "On first impression, these words clearly imply more than great frequency. 'Habitually' suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; 'persistently' suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness." 14 In Ramsey v Skyring (1999) 164 ALR 378, Sackville J quoted this passage from Wentworth. He went on to say that, although Roden J had eschewed any attempts to formulate a definition of universal application, his test had been cited with approval in at least two subsequent judgments. Sackville J went on to say "I am content to proceed on the basis that Roden J's observations are correct". 15 The third requirement within the terms of s 84 is that the proceedings be instituted "without any reasonable ground". There appears to be very little judicial authority as to the meaning of this phrase, presumably because the words speak for themselves and the meaning is taken to be self-evident. In the circumstances of the present application this requirement assumes some significance, as I shall discuss later. 16 Finally, s 84 requires the proceedings instituted against the aggrieved person to have been "vexatious". Yeldham J, in Pedler, said that in determining whether proceedings are vexatious, it is not the manner in which they are conducted which is relevant, but whether, "having regard to the nature and the substance of them, they properly bear that description". 17 This would appear to favour an objective approach to the question of vexatiousness. In Wentworth, Roden J set out to determine whether the test should be an objective or subjective one, or a combination of the two. After discussing various authorities, including Pedler, he reached the following conclusion (p 491): "It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless." 18 In Jones v Skyring (1992) 109 ALR 303, Toohey J appeared to prefer an objective test to the question of vexatiousness. He quoted Ormerod LJ in Re Vernazza (1960) 1 QB 197 as saying: "The question is not whether (legal proceedings) have been instituted vexatiously but whether the legal proceedings are in fact vexatious."

His Honour went on to say: "That question is one for the court to decide on the facts; it is not decided by reference to whether the person against whom an order is sought was acting maliciously or in bad faith." 19 Even if all the requirements of s 84 have been made out, the court still retains an overriding discretion to decline to make an order under the section. As Sackville J emphasised in Ramsey v Skyring, this power must be applied having regard to the fundamental principle of the legal system that every person has a right of access to a court to seek remedies in consequence of an alleged infringement of his or her rights. Because an order under s 84 denies a litigant this right, it has been treated as an "extreme" remedy: Wentworth at 484. 20 With this background I turn to consider the detailed evidence relating to the various proceedings commenced by Ms von Reisner.

Proceedings instituted by Ms von Reisner 21 I propose to discuss only those proceedings which are directly relevant under s 84. I am accordingly putting to one side the proceedings commenced in the Residential Tribunal or the CTTT. 22 Between March 2001 and March 2006 seven proceedings were instituted by Ms von Reisner. I propose to deal with each of them, albeit very briefly. I will be mentioning appeals lodged by Ms von Reisner during the course of these proceedings, as they themselves can be treated as proceedings "instituted" by her. First proceedings Supreme Court 30021/01: Administrative Law List 23 On 20 March 2001 Ms von Reisner appealed to the Supreme Court from an order made by the Residential Tribunal on 11 February 2001, allowing the Corporation access to Ms von Reisner's apartment in order to install a new kitchen. On 26 September 2003 Dunford J specially fixed the matter for hearing on 7 November 2003. On that date Ms von Reisner sought an adjournment of the proceedings and an order that his Honour disqualify himself. His Honour dismissed these applications but nevertheless stood the matter over to 21 November 2003. 24 On 14 November 2003 Ms von Reisner filed a holding Summons for leave to appeal to the Court of Appeal (CA 41017/03) against the orders of Dunford J on 7 November 2003. 25 On 21 November 2003 the substantive application was again listed for hearing before Dunford J. Ms von Reisner again applied to vacate the hearing date. His Honour rejected that application. His Honour then proceeded to deal with the substantive application, which was dismissed with costs. 26 In about October 2004 the appeal from the decisions of Dunford J was heard. Leave was not granted and Ms von Reisner was ordered to pay the Corporation's costs. Second proceedings Later became Supreme Court 20466/04 27 On 26 September 2001 Ms von Reisner commenced proceedings in the New South Wales District Court (9805/01) claiming damages for personal injuries arising from fungus in the unit. On 7 November 2002, on Ms von Reisner's application, the proceedings were transferred to the DDT (455/02). In June 2004 O'Meally J declined certain declaratory relief sought by Ms von Reisner in those proceedings, and on 19 November 2004 the proceedings were transferred to the Supreme Court at her request. 28 On 11 April 2006 James J heard an application by Ms von Reisner to stay all proceedings between her and the Corporation for at least six months on the grounds of her precarious health. His Honour declined to make the orders sought by Ms von Reisner. Also before his Honour was an application by the Corporation for access to the unit for an inspection and testing to be carried out. Ms von Reisner had sought to impose conditions on access which his Honour found to be excessive. He therefore made the orders sought by the Corporation. 29 On 9 August 2006 Ms von Reisner lodged an appeal from the orders made by James J (CA 40268/06). On 1 March 2007 Santow JA (McColl JA agreeing) effectively ordered a stay of the proceedings for six months, as requested by Ms von Reisner. In all other respects, the appeal was dismissed. Their Honours also dealt, at the same time, with an appeal of Ms von Reisner's from orders made by Campbell J in proceedings number 3241/05 (see later under "fifth proceedings"). Their Honours declined to give leave to appeal. 30 Numerous Notices of Motion were filed in these proceedings relating to subpoenas and other interlocutory matters. I do not propose to go through these, given Mr Turnbull's appropriate concession that the taking of interlocutory steps in existing proceedings do not fall within the ambit of s 84. These proceedings, as mentioned above, have now been transferred back to the DDT on Ms von Reisner's application. Third proceedings Supreme Court numbers 10994/04 and 30029/04 31 On 6 April 2004 Ms von Reisner commenced two sets of proceedings in this Court. They were consolidated shortly afterwards, and 10994/04 was effectively subsumed within number 30029/04. On 27 April 2004 Ms von Reisner filed an amended Notice of Motion seeking orders, effectively, that the Corporation remove asbestos from the unit and that the DDT be the only appropriate forum. 32 On 24 June 2004, Ms von Reisner filed a Notice of Motion in these proceedings seeking an order that her rent be paid into Court and then be applied to pay for the removal of carcinogenic materials from the premises and the elimination of a hazardous electrical system. On 9 September 2004 Bell J (as she then was) determined that the Court had no jurisdiction to make the orders sought by Ms von Reisner. She therefore dismissed the motion and ordered Ms von Reisner to pay the Corporation's costs. 33 It is noteworthy that, by this time, Ms von Reisner had determined that the DDT was not the appropriate forum in which to have her claim for damages determined. Indeed, she had already lodged a Notice of Motion in these proceedings (30029/04) to remove DDT proceedings number 455/02 to the Supreme Court. This order was made by Knight AJ on 19 November 2004 and the matter was then given the file number of 20466/04 (the second proceedings, above). 34 There has been no significant action taken in relation to this matter since that date. In effect, these proceedings have been merged into proceedings no 20466/04. Fourth proceedings DDT 111.04 35 On 7 April 2004 Ms von Reisner commenced proceedings number 111.04 in the DDT. The Statement of Claim alleged, amongst other things, that Ms von Reisner had been exposed to asbestos and that the defendant had failed to test for toxic materials. It was difficult to ascertain precisely what remedy she was seeking, but I assume that she was claiming damages for personal injury and damage to property. 36 On 10 May 2004 these proceedings were discontinued. This was at much the same time as the proceedings numbered two (above) were transferred from the District Court to the DDT. Given that no further steps were taken in relation to these (fourth) proceedings, I think it is appropriate to put them to one side. Fifth proceedings Supreme Court 3241/05 37 On 1 June 2005 Ms von Reisner commenced these proceedings in the Equity Division of this Court. The orders she sought were as follows: "1. An Order restraining the defendant from continuing to commit a nuisance being the continued presence on the Plaintiff's demised premises of ASBESTOS particles 2. An order that the Defendant, within 7 days, decontaminate and remove all asbestos particles from the Plaintiff's premises. 3. An order that the Defendant pay for such incidental expenses as are incurred to accommodate the Plaintiff during the time when the Defendant is undertaking the decontamination of the demised premises 4. An order restraining the Defendant from continuing to commit a nuisance being: a) withdrawal of cooking facilities, the stove, since 8 MAY 2000 b) refusal to provide power to the kitchen electrical appliances since 8 MAY 2000 5. An order that the Defendant, within 7 days, rectify defective electrical systems in the kitchen and provide power to the stove and appliances. 6. An order that the Defendant pay the Plaintiff's costs." 38 On 14 December 2005 Ms von Reisner filed a Notice of Motion seeking, in effect, that the Corporation install fire rated doors and provide electrical safety switches within the unit. On the same date she filed affidavits complaining about the state of the premises and the Corporation's failure to rectify them, despite "regular written requests". 39 On 16 December 2005 the matter came before Gzell J. At that stage the defendant undertook to seal a void within the bathroom of the unit within 24 hours. The remaining aspects of Ms von Reisner's application, particularly relating to a fire door in the unit, were stood over to 31 January 2006 with liberty to apply on 24 hours' notice. 40 Subsequently, during the Court vacation, Ms von Reisner sought to have the matter listed before Simpson J as an urgent matter. Her Honour found that it lacked urgency and declined to list it. Ms von Reisner again sought to have the matter listed during vacation and, on 20 January 2006, a hearing took place before Campbell J. The dispute at that stage related to a fire rated door. The Corporation was prepared to undertake to carry out this work. Indeed, as Campbell J noted, the Corporation had already put steps in train to enable it to provide this door. His Honour noted that there was accordingly no necessity for the matter to be brought before the Court and he ordered Ms von Reisner to pay the Corporation's costs. 41 Ms von Reisner appealed to the Court of Appeal against this decision (CA 40076/06). This appeal was heard together with Ms von Reisner's appeal from orders made by James J in the second proceedings (see para 29 above). The Court declined to give leave to appeal. 42 Several further Notices of Motion were filed by Ms von Reisner in these proceedings. In the circumstances, I think it unnecessary to describe them here. The matter finally came for hearing before Windeyer J on 9 June 2006. Counsel for the Corporation told his Honour that his client was prepared to consent to mandatory orders being made in accordance with paragraphs 2, 3, 5 and 6 as sought in the originating Summons (see para [37]). In the light of this concession, the restraining orders sought in paragraphs 1 and 4 became redundant. His Honour noted that Ms von Reisner was seeking an adjournment of the proceedings. However, given that the Corporation was prepared to consent to all relevant orders sought by her, his Honour concluded that it would be "a ridiculous waste of resources" to allow the matter to continue. He therefore made the orders sought in the Summons and consented to by the Corporation. 43 On 13 June 2006 Ms von Reisner appealed against Windeyer J's judgment (CA 40349/06). On 17 July 2006 she sought a stay of the orders made by Windeyer J. This was declined by Beazley JA. On 25 September 2006 she sought a variation of the judgment of Beazley JA which was again declined. Sixth proceedings Supreme Court 30114/05 44 On 19 December 2005 Ms von Reisner commenced proceedings in the Supreme Court appealing against the refusal of a CTTT member to disqualify himself. On this occasion Ms von Reisner was successful in her application: on 20 May 2008 Harrison AsJ upheld her appeal and remitted the matter to the CTTT for further hearing. 45 In these circumstances I propose to disregard these proceedings for the purpose of s 84. Seventh proceedings Supreme Court 30022/06 and 30023/06 46 Between 2 March and 8 March 2006 (the precise date is uncertain) these two proceedings were commenced by Ms von Reisner. The first, 30022/06 became subsumed in 30023/06. Ms von Reisner was appealing against certain orders made in the CTTT, at the request of the Corporation, that it be permitted to enter the unit and carry out repairs. 47 I do not propose to go into the details of the various attempts made by Ms von Reisner to adjourn these proceedings. On separate occasions applications were made to Simpson and Hidden JJ, both of whom refused to adjourn the proceedings. On each occasion Ms von Reisner lodged an appeal against those decisions. Her appeal from the decision of Simpson J was lodged on 27 June 2006 (CA 40382/06). The appeal from Hidden J was lodged on 23 March 2007 (CA 40151/07). 48 On 29 March 2007 the matter came on for hearing before Barr J. Ms von Reisner again sought an adjournment of the proceedings. Barr J declined her request and stood the matter over to 2:00 pm. At that time Ms von Reisner failed to attend. His Honour proceeded to dismiss the appeal and ordered that Ms von Reisner pay the Corporation's costs. 49 Subsequently Ms von Reisner lodged an appeal to the Court of Appeal from the decision of Barr J. On 13 July 2007 Harrison J amended the dates for the carrying out of the work to be undertaken by the Corporation. Ms von Reisner was required to give access to the premises in order to enable the work to be carried out. 50 On 1 August 2007, in accordance with the orders made by the CTTT and Harrison J, the Corporation caused contractors to attend Ms von Reisner's unit to carry out the work. She refused to allow them access to the unit. On 2 August 2007 the Corporation issued a Summons seeking a declaration that Ms von Reisner was in contempt of court for failing to allow access to her unit. On 7 August 2007 the motion for contempt, together with Ms von Reisner's application to stay the orders made by Barr J, came for hearing before Bell J. Her Honour dismissed Ms von Reisner's application for a stay and ordered that Ms von Reisner allow access to her unit during certain hours between 13 and 17 August 2007. Ms von Reisner was restrained from entering the premises whilst the work was being carried out. 51 During the time specified by Bell J, Ms von Reisner sought to prevent the Corporation's contractors from entering the premises. However, it appears that they did so, in the process damaging the locks on the front door. Ms von Reisner took this matter to the CTTT. However, it is unnecessary for present purposes to explore these later proceedings.

Overview 52 The above purports to be only a very brief summary of the various proceedings commenced by Ms von Reisner. The court files relating to the three most significant proceedings (numbers 2, 5 and 7) are extremely voluminous. It would be an impossible task to go through the various procedural matters that were undertaken during the course of these proceedings. Given that interlocutory proceedings in general are not to be taken into account under s 84, it would also be an unprofitable exercise. I have, however, attempted to indicate the occasions on which Ms von Reisner has sought to appeal from, or otherwise challenge, decisions made against her, as these are potentially relevant under s 84. However, given the extremely voluminous nature of the documentation in this matter, it is possible that some relevant proceedings have been omitted from the description set out above. 53 By way of overall summary, between March 2001 and March 2006 Ms von Reisner initiated seven new proceedings. For reasons given earlier, I propose to effectively disregard proceedings number four and six. That leaves five relevant procedures. Four were commenced in the Supreme Court. One of them (no 2) was commenced in the District Court but was then transferred to the DDT and later to this Court. The following is a list of those proceedings.

Proceedings initiated by Ms von Reisner No. Date Nature of proceeding Judicial Officer(s) 1. 20.03.01 Appeal from Residential Tribunal Dunford J 2. 26.09.01 District Court claim (later transferred to DDT and to Supreme Court) James J 3. 06.04.04 Notice of Motion to have asbestos removed from unit Bell J Gzell J 5. 01.06.05 Seeking orders that the Corporation do certain work in unit Simpson J Campbell J Windeyer J Simpson J 7. 08.03.06 Appeal from CTTT orders that the Corporation enter and carry out repairs Hidden J Barr J

54 In addition to the new proceedings initiated by Ms von Reisner, she has, as the above summary indicates, lodged numerous appeals from decisions which she has perceived as adverse. So far as I can discern, the following appeals have been instituted by her: Date Proceedings Appeal number Judicial officer appealed against 14.11.03 No 1 CA 4101731/03 Dunford J 13.06.06 No 5 CA 40349/06 Windeyer J 27.06.06 No 7 CA 40382/06 Simpson J 17.07.06 No 5 CA 40349/06 Beazley J 09.08.06 No 2 CA 40268/06 James J 09.08.06 No 5 CA 40268/06 Campbell J 23.03.07 No 7 CA 40151/07 Hidden J 13.07.07 No 7 CA 40193/07 Barr J

Discussion of issues 55 Mr Turnbull acknowledged that there are problems relating to Ms von Reisner's unit which require rectification. Accordingly there were, objectively speaking, reasonable grounds for at least some of the individual proceedings (as opposed to the appeals) which were instituted by her. But the overall history of the litigation between the parties clearly shows, Mr Turnbull submitted, that Ms von Reisner had some collateral purpose in instituting these proceedings. The history of the fifth proceeding (3241/05) most dramatically illustrates this proposition. That was the case in which the Corporation consented to every relevant order sought by Ms von Reisner in her originating process. In spite of this, she sought an adjournment of the proceedings. When that adjournment was refused, and Windeyer J proceeded to make the orders, she appealed against them, notwithstanding that they were the very orders which she had originally sought. 56 Mr Turnbull relied upon the judgment of Young J in Attorney-General for NSW v Solomon (1987) 8 NSWLR 667 as authority for the proposition that an order under s 84 might be justified if the pattern emerges of vexatious proceedings being habitually and persistently instituted, notwithstanding that there might have been reasonable grounds for instituting at least some of the individual proceedings. As to whether proceedings are "vexatious", Young J found that it was an abuse of process, and therefore vexatious, to commence court proceedings for a collateral purpose. The facts of that case were quite different from here. In that case, Young J found that the proceedings in question were commenced "in an attempt to divert attention from the prosecutions which had been launched against him (Mr Solomon), or to frustrate the receiver's activities". In other words, there was a clear collateral strategy behind the commencement of the proceedings. That is not the case here. Indeed, Mr Turnbull freely conceded that he was unable to discern what Ms von Reisner was seeking to achieve through initiating these various proceedings, but submitted that their history clearly indicates that it was not to obtain the outcome apparently sought in the originating processes. 57 Ms von Reisner, who was unrepresented in these proceedings, vigorously opposed the making of an order under s 84, but was otherwise of little assistance in discussing the applicable legal principles. She did not give evidence, and it was therefore inappropriate to question her about the factual issues involved. 58 The lack of any discernible collateral purpose does not affect the principle that, if proceedings are in fact brought for a purpose other than to have the court adjudicate on the issues to which they give rise, then they can appropriately be categorised as "vexatious". (See Roden J in Wentworth, para [17] above.) It does, however, make it more difficult to make a positive finding that the proceedings have that quality. In the present case I think it likely that some of the proceedings were indeed instituted for a purpose other than to obtain an adjudication of the issues involved. But I cannot make that finding in relation to all of them. The second proceeding in particular (which is the only proceeding which currently remains on foot) was, on the available evidence, probably initiated and pursued for the purpose of obtaining compensation from the Corporation, as originally sought in the District Court. 59 This brings me to the other matter which has caused me concern, namely the requirement that the vexatious proceedings be instituted "habitually and persistently". The list set out in paragraph [53] shows that between March 2001 and March 2006 five new proceedings were commenced by Ms von Reisner, as relevant to s 84. If one removes the second proceeding (which I am not satisfied was "vexatious"), we are left with four proceedings over a five-year period. The last proceeding was instituted nearly three years ago. Certainly there were also a number of appeals, almost all of them completely without merit. However, the last of these was instituted in July 2007, approximately 18 months ago. In that time no relevant new proceedings of any kind have been instituted by Ms von Reisner. Nor is there any likelihood of a proliferation of new appeals, given that only one proceeding remains on foot. 60 I understand that Ms von Reisner has more recently instituted a similar proceeding in the Federal Court. Mr Turnbull submits that this is a relevant matter under s 84. However, given that the section applies only to proceedings instituted "in the Court or in any inferior court", I cannot accede to this proposition. The nature of the legislation is such that it must be given a strictly literal construction. 61 The bar set by s 84 is a high one, and needs to be maintained thus, for reasons given earlier. In my opinion the material presented by the Corporation fails to surmount that bar, particularly in the light of the time which has elapsed since the last new proceeding was instituted. However, this is by no means a clear cut case, and I must give Ms von Reisner a strong warning that, if further proceedings are instituted against the Corporation of a similar nature to those previously commenced by her, then she runs a serious risk of facing a successful application under s 84. My determination in the present case by no means bars the Corporation from making a further application under s 84 should circumstances change. 62 For the reasons given above, I propose to dismiss the application. In relation to costs, Ms von Reisner has been self-represented, and has presumably incurred little or no costs. However, in order to cover the possibility that she has incurred incidental costs in defending this application, I propose to order that the Corporation pay her costs. 63 Orders:

(i) I decline to make the orders sought in the Summons filed herein. (ii) I order the plaintiff to pay the defendant's costs. **********

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