Plaintiff (Respondent) v Defendant (Applicant)

1 Ian Kay was declared to be a vexatious litigant by an order of Eames J made as long ago as 23 February 1999[1]. Leave to appeal from this decision was refused by the Court of Appeal on 28 September 2000[2].

2 The order declaring Mr Kay a vexatious litigant contained a further order, pursuant to s 21 of the Supreme Court Act 1986, that Mr Kay must not, without leave of a judge of the Supreme Court, continue or commence any legal proceedings in the Supreme Court, the County Court, the Magistrates' Court or any Victorian Tribunal. Section 21(4) of the Act provides that such 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 or tribunal in question.

3 Section 21(5) of the Act provides that the Court may at any time vary, set aside or revoke an order declaring a person a vexatious litigant "if it considers it proper to do so". In Kay v Attorney-General[3] Chernov JA observed that s 21(5):

" ... is confined in its operation to cases where there has been a change in the relevant circumstances since the making of the original order such as to make it appropriate that the order be varied, set aside or revoked."[4]

4 Chernov JA went on[5] to refer to and agree with the observations of Crockett J in Bienvenu v Attorney-General[6] to the effect that a challenge to the validity of the order declaring the applicant a vexatious litigant was to be made by way of appeal and not by invoking the Court's jurisdiction to set it aside or revoke it.

5 Since the order was made in 1999 Mr Kay has brought four applications to set aside or revoke the order but each has been refused. Hence he continues to be a declared vexatious litigant. The last such refusal was as recent as 1 September 2005 when Byrne J dismissed an application filed on 4 May 2005[7].

6 Mr Kay has also sought leave to commence proceedings to set aside an intervention order made against him by the Magistrates' Court at the instance of his former wife, Heather J McIntosh. The initial intervention order was made on 5 May 1994. The order was extended until further order on 5 May 1995. As Byrne J recorded in his judgment on 1 September 2005, Mr Kay has maintained that these intervention orders ought not have been made, that they were based on perjured evidence and have for some 11 years denied him the right to see his three children. Byrne J noted that his three children are now aged about 24, 22 and 19 years.

7 On 10 December 2003 Habersberger J gave Mr Kay leave pursuant to s 21(4) to apply to the Magistrates' Court of Victoria to vary or revoke the intervention order made on 5 May 1995 on the ground that over eight years had elapsed since the making of the order. He further ordered that:

• any such application contain a full statement of the facts and circumstances on which Mr Kay seeks to rely.

• Mr Kay have leave to take any relevant interlocutory steps in support of his application, including but not limited to an application for substituted service or the issuing of a subpoena.

8 Pursuant to the leave thus granted Mr Kay applied to the Magistrates' Court which determined the application on 22 June 2005. The Magistrate made an intervention order but in terms which amended and modified the 1995 order and which also provided that the order "last until 22/6/2008".

9 From what I was told it seems that Mr Kay has instituted an appeal against this order or taken some step in that regard. I have not seen any papers in connection with an appeal.

10 I referred earlier to the fact that as recently as 1 September Byrne J refused an application by Mr Kay to set aside the order declaring him to be a vexatious litigant. The application was made by a summons filed on 4 May 2005 supported by an affidavit sworn on 14 February 2005 and was heard on 29 August 2005. Byrne J refused the application on the basis that he was not satisfied that there had been a change in circumstances since 1999 such that there was no risk that Mr Kay would in future commence vexatious legal proceedings.

11 Mr Kay has not instituted an appeal against that decision. Rather, he has brought the following applications, each by a separate summons, which were before me on 19 October 2005.

(a) A summons dated 13 September 2005 and filed on 16 September 2005 seeking leave and a hearing to revoke his present status of a declared vexatious litigant, and issues relating to this. The sole defendant is the Attorney-General. The application was supported by an affidavit sworn on 16 September 2005 which included among its exhibits Mr Kay's earlier affidavit sworn on 14 February 2005.

(b) A summons dated and filed on 16 September 2005 for an order requiring the Victims of Crime Assistance Tribunal (VOCAT) to make available all documents and particulars relating to a compensation payment to his ex-wife and children while Mr Kay was in jail for a postal breach of the intervention order. The summons stated that the documents were to be available for all court hearings relating to his applications to revoke the intervention order and the vexatious litigant order. The only defendants named in the summons are VOCAT and Ms Heather McIntosh. The application is supported by an affidavit sworn 16 September 2005 which included among its exhibits, as material relied upon, Mr Kay's earlier affidavit sworn on 14 February 2005.

(c) A summons dated "Oct-05", which is on the file but is not signed, completed with a return date or sealed by the Court. The summons seeks leave to apply to the County Court to appeal against the decision and order of the Magistrate on 22 June 2005 and seek the removal of the intervention order. The only defendants named in the summons are the Women's Legal Service and Ms Heather McIntosh. The summons is supported by an affidavit sworn by Mr Kay on 11 October 2005.

12 At the hearing before me Mr Kay appeared for himself while counsel appeared for the Attorney-General on the application to revoke the order declaring Mr Kay a vexatious litigant. However, the Attorney-General is not a party to and, as I understood it, had not been served with the other summonses. In these circumstances counsel for the Attorney-General stated that she knew little about those summonses and did not address submissions in relation to them.

13 Separate counsel appeared for the Women's Legal Service and Ms Heather McIntosh. There was no appearance for VOCAT and there was no affidavit of service of the relevant summons upon that body.

14 Mr Kay requested that his application to revoke his status as a vexatious litigant be dealt with first. Accordingly I turn to that application.

15 At the outset it should be noted, as mentioned earlier, that the summons sought a hearing to revoke the 1999 order "and issues relating to this". With that prefatory statement the summons sought the following orders:

(a) that the order of Eames J be set aside;

(b) compensation for being declared a vexatious litigant which had denied him natural justice;

(c) the Court order that he be legally represented;

(d) the application be heard by a judge and jury;

(e) that Mr Kay be able to subpoena witnesses whom he regards as necessary to prove his case;

(f) all documents concerning his ex-wife and children receiving a compensation payment while he was in jail for postal breaches of the restraining order be made available to the Court for the hearing; and

(g) a retrial of all charges he has faced while being a vexatious litigant.

16 Mr Kay addressed me at some length, and with considerable vigour, in support of the summons. He said a number of things about his ex-wife and other people, expressing himself at times "in an intemperate, angry or even abusive and offensive manner" as Byrne J observed in his judgment last month[8]. Mr Kay said that the compensation payment to his ex-wife and children was made in 1996. He wanted the VOCAT documents to see what his ex-wife and children had said about him, in order for him to now prove that what the Courts have done had been based on perjured evidence. He denied that he had committed a postal breach of the intervention order, stating that another person or persons had inserted into a letter he sent his ex-wife a piece about the Port Arthur massacre or, it would seem, had made up that such a piece was included with the letter. He recognised that this occurred before he was declared a vexatious litigant but asserted that he could rely on it and the matters contained in the VOCAT documents to establish the existence of new facts and circumstances which would warrant the revocation of the 1999 order declaring him to be a vexatious litigant. He had a right, he submitted, to open up issues whether or not they have been before the Court before.

17 In putting this submission Mr Kay frankly said that unless the VOCAT documents are provided to him he could not establish new facts and circumstances. Indeed, he said, the documents themselves are new facts and circumstances. Of course that may be so in the sense that he has not seen them but the question with which I am concerned is whether subsequent to the making of the order declaring him to be a vexatious litigant there has been a change in circumstances of such a nature as to warrant the revocation of that order.

18 Mr Kay also said that he required the VOCAT documents for use in his appeal to the County Court from the order of the Magistrates' Court made on 22 June 2005. As to this, he wished me to direct that the County Court receive the documents on the hearing of the appeal. I told Mr Kay that I could not, and would not, make such a direction.

19 Mr Kay also spent some time in identifying persons who he wished to subpoena and the subject matter of their evidence. In his summons he said that to deny him the opportunity to subpoena these persons and examine them on the application would be to deny him a basic right and access to Court procedures. The purpose of subpoenaing these people would be to establish the falsity of charges and evidence against him. But the relevant events with which he was concerned occurred in the 1990s prior to the making of the order declaring him a vexatious litigant. In other words, Mr Kay was seeking to go back to events behind that order whereas the relevant inquiry for present purposes is as to a change in circumstances since the making of the order. It is evident from his reasons that Mr Kay put the same submission as to wishing to subpoena persons to Byrne J who pointed out the flaw in it for the purpose of an application to revoke under s 21(5), as well as the difficulty that Mr Kay would not ordinarily be permitted to cross-examine a witness he called[9].

20 Having heard all that Mr Kay said, and having reserved my decision in order to have the benefit, in a calmer atmosphere, of reading all of his material and perusing the file, I am of the view that Mr Kay has not established a change in the relevant circumstances since the making of the order in 1999 that would make it proper to revoke that order. He continues to be preoccupied with matters that occurred prior to, and which led to, the making of that order and with his ex-wife and her alleged actions and perjury in obtaining the intervention order and her responsibility in him losing access to his children since then. He also continues to allege wrongful and complicit conduct in these matters by other people. This is evident from his oral submissions, the Summons and his affidavit in support. In his affidavit he states, for instance, that he has been denied any contact with his children "for over 12 years and jailed as a result of lies and perjury, contemptible legal tactics and judicial corruption". In essence he wishes to re-litigate and correct the injustices suffered by him in these events. No matter how much the matter is dressed up, or may be put, that does not establish a change in circumstances for the purpose of s 21(5). Furthermore, Mr Kay's continued desire to revisit events before the making of the 1999 order shows that he has not, and refuses to, accept the correctness of that order and direct himself to establishing a change in circumstances. In this regard I agree, with respect, with the observation of Byrne J that:

"... Mr Kay's steadfast refusal to accept that this application is not about the correctness of the order of February 1999 nor of the orders which preceded this order, is an indication that he will, if not restrained, bring proceedings which are not based on any legal principle and which can achieve nothing other than the harassment of the parties named as defendants and the needless waste of legal costs and court resources"[10].

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.

[1] Attorney-General for the State of Victoria v Kay [1999] VSC 30.

[2] Kay v Attorney-General [2000] VSCA 176; (2000) 2 VR 436.

[3] [2000] VSCA 176; (2000) 2 VR 436.

[4] At 444 [23], with which the other members of the Court, Ormiston and Batt JJA, agreed.

[5] At 444-445 [24].

[6] [1982] VicRp 58; [1982] VR 563 at 564.

[7] Attorney-General v Kay [2005] VSC 349.

[8] Attorney-General v Kay [2005] VSC 349 at 3 [10].

[9] Attorney-General v Kay [2005] VSC 349 at 2 [7].

[10] Attorney-General v Kay [2005] VSC 349 at 3 [10].

[11] As to whether Mr Kay requires leave to appeal see Kay v Attorney-General [2000] VSCA 176; (2000) 2 VR 436 at 446 [27]. The premise of Mr Kay's application is that leave is required and counsel for the defendants to the summons submitted that, being a new proceeding, leave to appeal was required. Counsel for the Attorney-General made no submission on the summons.

[12] See the Crimes (Family Violence) Act 1987 s 16 which provides for the revocation of an intervention order and s 20(1) which provides for an appeal to the County Court against a refusal to revoke an intervention order, and s 20(6) which provides that the provisions of the Magistrates' Court Act 1989 apply to such appeals with such adaptations as are necessary. The effect of the latter Act is that notice of appeal to the County Court must be given within 30 days after the day on which the relevant order was made. It is further provided that a notice of appeal given after that time is deemed to be an application for leave to appeal on the grounds stated in the notice, and that the County Court may grant leave to appeal if the failure to give notice was due to exceptional circumstances and the respondent's case would not be prejudiced because of the delay. See the Magistrates' Court Act 1989 Part 4, Division 4, Subdivision 1 - Appeals to County Court and Schedule 6, cl 1.