21 In these circumstances there is no point in the persons mentioned, or the VOCAT documents, being subpoenaed to pursue a claim to revoke the 1999 order as that claim must fail. This is sufficient reason to dismiss the summons but I should briefly deal with the some of the other claims for relief sought in the summons.
22 The first matter is the claim for compensation. Not only does the question not arise, but Mr Kay did not point to any basis on which he might be awarded compensation. The second matter is that of legal representation. This was not pressed and, in any event, I can not order it. Further, Mr Kay has had ample time in which to arrange representation. The next matter is that of a jury. The proceeding is not within r 47.02(1) and is thus not one in which Mr Kay is entitled to require a jury, and the case is otherwise not one in which it is appropriate for the Court to order under r 47.02(2) that it be tried before a jury. Finally, the Court does not have power on an application under s 21(5) to order a retrial of past matters.
23 For all of these reasons the revocation summons dated 16 September 2005 will be dismissed. In the language of s 21(5) it would not be proper to do otherwise.
24 In concluding on the summons to revoke the vexatious litigant order, I make the following observations. I referred earlier to the fact that Mr Kay initiated the present application without first appealing against the order of Byrne J. It was of course for Mr Kay to decide whether to appeal, but in the absence of an appeal it hardly seems appropriate to commence another revocation application within a matter of weeks unless new facts and circumstances had arisen since the previous decision which may constitute a change in circumstances for the purpose of s 21(5). An application commenced in the absence of changed relevant circumstances is, or is akin to, an abuse of the process of the Court and, perhaps more fundamentally, may indicate a risk that Mr Kay will institute further vexatious litigation if he is free to do so.
25 In the present case there is a close similarity between the summons before me and that before Byrne J. Further, the affidavit relied on before Byrne J was an exhibit to Mr Kay's affidavit in support of the present summons and was thus relied on before me. Examination of these materials and perusal of the transcript of the hearing before Byrne J indicates that the substance of the matters complained of by Mr Kay and which he wishes to agitate were the same. It is true that before me Mr Kay focussed on the documents before VOCAT but he had sought access to these documents on 21 January 2005 and VOCAT had refused access on 25 July 2005. Hence the matter of access to the VOCAT documents had arisen before the hearing before Byrne J and his judgment on the application. Furthermore, perusal of the file reveals that on 23 July 2005 Mr Kay filed a draft summons naming the Attorney-General, the Chief Magistrate and the Director of VOCAT as defendants seeking leave to compel the defendants to supply him with all relevant documentation relating to a compensation payment to his ex-wife "which involved him being jailed and involves his children". As mentioned, the summons is in the form of a draft, and it does not bear the seal of the Court or a return date for a hearing. It is apparent that the summons did not proceed beyond a draft and was not served. The fact remains however that Mr Kay's desire to be provided with the VOCAT documents was a matter which he was alert to prior to the hearing before Byrne J.
26 With those observations I turn to the other summonses.
27 I refer first to the summons which seeks an order requiring VOCAT to make available documents to Mr Kay.
28 I referred earlier to the order which Mr Kay seeks. It requires production to Mr Kay of documents relating to the compensation payment to his ex-wife and children to which I referred earlier. And, as mentioned earlier, the purpose (as stated in the summons and by Mr Kay before me), is to use the documents in his applications for the removal of the intervention order and revocation of the vexatious litigant order. In my view the application is confronted with difficulties of a substantive and procedural nature.
29 Insofar as the application is made for the purpose of the application to vary or revoke the intervention order there are the following difficulties. First, the application to vary or revoke the intervention order, which Mr Kay made pursuant to the leave granted by Habersberger J, has been heard and determined without the VOCAT documents being made available. Secondly, Mr Kay has not yet been granted leave to appeal to the County Court against that decision which leave he seeks by the draft summons referred to earlier. I refer to this summons below. Until, and unless, leave to appeal is granted, assuming it is required, the process of seeking variation or revocation of the intervention order is complete, thus removing that as a basis for making the order sought in the summons[11]. Thirdly, the appropriate way in which to seek production of the documents would be by subpoena in the appeal at which the judge hearing the matter could decide any question that might arise concerning relevance, admissibility and such matters.
30 Then, insofar as the documents are sought for use in the application to revoke the vexatious litigant order, for reasons already given the application must fail.
31 These reasons are a sufficient basis on which to dismiss the summons. I would, however, add that in my view the Attorney-General should have been named as a defendant to the proceeding. On any application made in this matter of proceeding 6562 of 1998 in which the vexatious litigant order was made, and in which the Attorney-General is the plaintiff, the Attorney-General should always be a party. In some situations it may be appropriate for another person or persons to be made a respondent or at least be given notice of the application, although there would always be a question why the Attorney-General would not be a sufficient contradictor, and in such cases the Court may make such order for the addition of a party, the amendment of the proceeding, and the giving of notice to any person not named initially as a respondent as may be appropriate.
32 I now turn to the third summons which, as mentioned earlier, appears on the file as a draft. Yet it had been served and Mr Kay said that he thought it had been duly filed. This summons seeks leave to appeal to the County Court against the order of the Magistrates' Court made on 22 June 2005.
33 Even if this summons be deemed to have been duly filed and served it must confront the following difficulties.
34 First, the proper respondent to it is the Attorney-General and not those who are named as defendants in the summons. Secondly, there is the question of the time in which to appeal which was 30 days after 22 June 2005[12]. As mentioned earlier, it seemed from what I was told that Mr Kay has purported to institute an appeal to the County Court. However, as I have not seen any papers, I am uncertain as to exactly what he has or has not done in that respect. I merely note that the time in which to institute an appeal to the County Court was 30 days and that the County Court has power to extend that time. If Mr Kay has filed a notice of appeal he has done so without first obtaining the leave of this Court to do so, a leave which he seems to recognise as being necessary. Whether leave is necessary depends on the terms of the order of Habersberger J. Did the order extend to include an appeal to the County Court or was the leave spent on the determination of the application in the Magistrates' Court? I incline to the latter view, as Mr Kay himself seems to do, and as was submitted by counsel for the Women's Legal Service and Ms Heather McIntosh. On that basis leave is necessary to institute an appeal. However, I have not heard the Attorney-General on the point and accordingly do not express a concluded opinion on the matter. I prefer not to conclude against Mr Kay in the absence of proper argument. Nevertheless it is apparent that at the very least it is a matter of great doubt whether Mr Kay can validly institute an appeal to the County Court without obtaining leave from this Court enabling him to do so.
35 Then, assuming that leave to appeal is necessary, the question is whether in the circumstances it is proper to grant the leave sought. This would seem to me to require that Mr Kay show that he has a case on the merits which would warrant leave being granted. That would normally be done by an affidavit which set out the course of events, and outlined the evidence, before the Magistrate, and any relevant rulings and the reasons for decision of the Magistrate, and the reasons why an appeal had merit. Mr Kay could also address submissions as to the merits of an appeal. His affidavit in support of the summons did not do that. Rather, it was critical and abusive of the Magistrate and indicated that Mr Kay had sought to attack the making of the original intervention order and the evidence on which it was made. That is consistent with his approach described earlier in this judgment. The result is that I am, and would be, unable to determine whether an appeal to the County Court has merit.
36 In my view the appropriate way to deal with this third summons, it having been served and the named defendants having appeared and addressed submissions, is to treat it as having been regularly filed and served and dismiss it but without prejudice to a further application by Mr Kay for leave to appeal to the County Court against the order of the Magistrates' Court made on 22 June 2005.
37 For the above reasons the following orders will be made. Each summons filed on 16 September 2005 will be dismissed. The draft summons dated "Oct-05" seeking leave to appeal to the County Court will be dismissed but without prejudice to Mr Kay making a further application for leave to appeal to the County Court against the order of the Magistrates' Court made on 22 June 2005. There will be no order for costs.