Plaintiff v Defendant

Supreme Court of Victoria|2014-10-16|Before: T FORREST J

PRACTICE AND PROCEDURE - Vexatious Litigant - Order to expire - Application for order restraining person from commencing proceedings without leave - Application for order varying existing order - Adjournment - Preservation of the status quo - Principles applied on application for interlocutory injunction equally applicable to limited variation to extend operation of existing order - Matter adjourned and order varied - Supreme Court Act 1986 (Vic), ss 21(2), (5).

2 At a directions hearing before Daly AsJ on 15 September Mr Knight put the Court and the Attorney-General on notice of his intention to apply to have the proceedings adjourned, pending the determination of an application to Victoria Legal Aid for legal representation. The Attorney-General was amenable to that proposal, subject to the preservation of the status quo beyond 19 October 2014. Mr Knight foreshadowed resistance to this cross-application.

3 Yesterday the proceedings were called on for trial and the application for adjournment made. Neither party has resiled from the positions to which I have just referred.

4 I note that yesterday the Attorney-General appeared to be of the view that the preservation of the status quo could be achieved either by a limited variation to the 2004 Order (made by Smith J, in the old proceeding) or by interlocutory injunctive relief (in the fresh proceeding). Today the Attorney-General's strong preference is for the former, under s 21(5) of the Act.

5 Although I consider them sequentially, my conclusions on the issues of adjournment and the preservation of the status quo are obviously interdependent.

6 Since 2004 Mr Knight has continued to litigate in this and other Australian Courts and Tribunals. Some of this litigation has been successful. In this Court, where Mr Knight is required by law to apply for leave to commence proceedings, leave has not always been withheld.

7 In at least 18 applications or appeals against the outcome of those applications Mr Knight has been refused leave to commence a proceeding because the proposed proceeding would be an abuse of process, or because Mr Knight had not satisfied the Court that the proposed proceeding would not be an abuse of process.[3] These applications, which are particularised in the affidavits of Mr Stephen Lee,[4] Assistant Victorian Government Solicitor, provide the factual foundation for the Attorney-General's application before me.

8 In almost all of these applications Mr Knight has been unrepresented. This Court has previously expressed its view that it is desirable that Mr Knight be represented, especially where proceedings proceed beyond the leave-application stage.[5]

9 The Court may adjourn a trial on such terms as it thinks fit.[6] The principles of case management set out in Aon Risk Services will always guide that discretion, albeit with varying degrees of application.[7]

10 Ultimately, the task for the Judge considering an adjournment is one of weighing up the prejudice that will be suffered by both parties and any competing public interests, such as the administration of justice. These are serious proceedings, and I consider the prejudice Mr Knight would suffer if he were not allowed time to investigate the possibility of legal representation would be high.[8]

11 The Attorney-General's sole concern, on the other hand, is that an adjournment may mean that Mr Knight initiates proceedings in this Court despite the ultimate, though delayed, success of the application restraining him from doing so. As I foreshadowed, this issue aside the Attorney-General does not oppose the adjournment and in fact supports the application.

12 It follows, in my view, that it is sensible to conclude the issue of adjournment after I express a view as to the appropriateness of the preservation of the status quo. If this view is favourable to the Attorney-General the remaining issue resolves by consent.

Interlocutory Injunction/Variation of the Existing Order

13 It will become apparent that in my view the following principles are equally relevant to the proposed limited variation that is sought under s 21(5) of the Act.

14 The power to grant an interlocutory injunction is discretionary and may be exercised at any stage in the proceedings, or prior to the commencement of proceedings.[9] A court may order an injunction if "it is just and convenient to do so"[10] and such orders may be made "unconditionally or on such terms and conditions as the Court thinks just."[11]

15 Notwithstanding the broad terms of the discretion, courts have developed "organising principles having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed."[12] Before the court will grant an injunction the plaintiff must generally demonstrate that:

(a) That there is a serious question to be tried, or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be entitled to relief;

(b) The plaintiff will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and

16 Often, the second consideration is expressed as a part of the third.[14] In any event, there is a long line of authority for the proposition that these "organising principles" are interdependent and must be considered together.[15]

17 In ABC v O'Neill, the High Court expressed a preference for the expression "prima facie case" rather than "a serious question to be tried."[16] To establish a prima facie case "it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial."[17] The "requisite strength of the probability of success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought."[18]

18 Where there is some uncertainty as to the final outcome that can only be resolved by a contested finding of fact, it is not appropriate for the court to determine that question on an interlocutory application.[19] Having regard to this principle,

... it is also appropriate that the court assume that any conflicts between the evidence of the parties should be resolved in favour of the plaintiffs for the purpose of this interlocutory application, insofar as it goes to establishing whether or not there is a [prima facie case].[20]

19 In determining where the balance of convenience lies,

the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong', in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.[21]

20 This principle applies whether the injunction sought is mandatory or prohibitive in nature.[22]

Interlocutory Injunctions against Vexatious Litigants

21 In my view there is no reason why an interlocutory injunction cannot be granted in appropriate case brought under s 21(1) of the Act.

22 In Wentworth v Attorney General (NSW),[23] the New South Wales Court of Appeal held that that Court had power to grant an interlocutory injunction to restrain a person from instituting or continuing proceedings without the leave of the Court when proceedings had been brought pursuant to s 84 of the Supreme Court Act 1970 (NSW), which in all material respects was a cognate of s 21 of the Act, if there was evidence before the Court that prima facie the person was a vexatious litigant. Hope JA observed:

[Section] 84 is one of the sections of the Supreme Court Act which is not merely procedural but which affects rights or confers power. Undoubtedly the right or interest which it protects is the public right to and interest in the orderly administration of justice. That right and interest have to be balanced with the undoubted public interest in citizens being able freely to bring proceedings before the court. The latter right is not lightly to be interfered with, but it may be necessary to do so by reason of the public interest in the administration of justice. If proceedings for the making of a final order are properly before the Court, the Court is, in appropriate circumstances, entitled to make an interlocutory order to protect that public interest until the matter is finally resolved. In my opinion there is power in the Court to grant an interlocutory injunction pursuant to the Supreme Court Act, s 66(4), where proceedings have been brought pursuant to s 84 of the Act.[24]

This submission [that s 66(4) does not permit an interlocutory injunction restraining a person from bringing or continuing proceedings] is, in my view, quite inconsistent with the established principle that a court which is invested with power to grant relief, including a final injunction, to a party is empowered to grant interlocutory relief, including an interlocutory injunction, upon proof that there is a real question to be tried if the circumstances of the case so require.[25]

24 In The Attorney-General for the State of Victoria v Bahonko,[26] J Forrest J of this Court restrained the respondent-party from commencing proceedings without leave of the Court, pending the determination of a s 21 application. His Honour extracted and adopted the same passages from the judgments of Hope and Clarke JJA in Wentworth.[27] Other Judges of this Court have taken a similar approach.[28] In passing, I note another similarity between Bahonko and this case - in the former, J Forrest J acceded to the Attorney-General's application for an injunction after he was persuaded by the respondent to grant her a short adjournment.

25 Finally, I again note that the Attorney-General's cross application to preserve the status quo is now pressed as an application to vary the order of Smith J until the determination of the substantive application to vary that order. I agree with the Attorney-General's submission that the principles that apply under s 21(5) of the Act, in considering whether to make the limited variation sought, must necessarily be those that would apply on an application for an interlocutory injunction.

The Court may at any time vary, set aside or revoke an order made under subsection (2) if it considers it proper to do so.

27 The terms of that discretion are broad. In my view the condition on its exercise, which is one of propriety, comfortably accommodates the twin considerations of justice and convenience that guide the exercise of the Court's discretion to grant injunctive relief, whether interlocutory or final.

28 In order to be satisfied that it is proper to extend the order in the limited way the Attorney-General seeks, I would therefore need to be satisfied that there was a prima facie case for the substantive variation and that the balance of convenience justified the limited variation until the hearing of the substantive application for variation. In turn, for there to be a prima facie case for the substantive variation I consider the Attorney-General would have to establish, on a prima facie basis, that the circumstances required by s 21(2), and which were deemed to exist by Smith J in 2004, persisted.

29 In my view, this is simply another way of saying that a court could not consider it proper to extend an order under s 21(5) in a manner that had the effect of granting interlocutory injunctive relief unless it were satisfied that it was appropriate to grant such interlocutory relief.

30 The jurisdiction to grant an order declaring a person to be a vexatious litigant is presently conferred upon the Court by s 21(2) of the Supreme Court Act 1986. The order may provide that the person must not without leave of the Court[29] continue or commence any proceeding (or specified type of proceeding), whether civil or criminal, in the Court or any specified inferior court or Tribunal.[30] Only the Attorney-General may bring the application.[31]

31 The discretion to grant the order is contained at s 21(2):

(2) The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has -

(a) habitually; and

(b) persistently; and

(c) without any reasonable ground -

instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.

32 In my view, and at the risk of stating the obvious, a court hearing an application under s 21 must therefore ask itself four questions:

Has the person 'instituted legal proceedings'?
Are those legal proceedings 'vexatious'?
Have the vexatious legal proceedings, if any, been instituted 'habitually' and 'persistently'?
Have the vexatious legal proceedings, if any, been instituted without 'reasonable excuse'?

33 If the answer to each of these questions is 'Yes', the Court must then consider whether it ought in its discretion make the order sought by the Attorney-General.

34 A proceeding is "instituted" where an "originating process is filed, where a person counterclaims, appeals against an otherwise final determination of the substantive matter, or applies to have an otherwise final determination set aside."[32] Interlocutory applications and appeals on interlocutory applications do not ordinarily amount to the "institution" of proceedings.[33]

35 This application is unusual in the sense that it is brought against a person who is already a vexatious litigant. This means that Mr Knight cannot, by law, commence a proceeding unless he first satisfies a judge of this Court that the proposed proceedings are not or will not be an abuse of process - most of Mr Knight's litigation in this Court has been of this kind. Does a person who applies for leave to commence proceedings pursuant to s 21(4) 'institute' proceedings for the purposes of s 21(2)?

36 In my view the answer to that question must be yes. In Jones v Skyring, a similar issue arose in an application to the High Court by the Registrar of that court to restrain a person from 'begin[ing] any action appeal or other proceeding in the Court' without first obtaining leave.[34] Under O 63 r 6(2) of the High Court Rules the Court could make such an order if it was satisfied that the relevant person had:

frequently and without reasonable ground [] instituted vexatious legal proceedings

37 Some of the respondent's litigation met this definition comfortably. Under the then O 58 r 4(3), however, the Registrar had been directed to refuse to issue a number of the respondent's proposed writs unless he first obtained leave from a judge of that court.[35] Leave applications were made and dismissed. The question was whether these unsuccessful leave applications counted for the purpose of the O 63 r 6 application. Toohey J, sitting alone, held:

[...] there is no reason why an application to a Justice made consequent upon a direction under O.58 r.4(3) should not itself be regarded as the institution of a legal proceeding. If that were not so, a most extraordinary situation could develop. A person might deluge the Registry of the Court with writs or other process that were patently an abuse of process or frivolous or, indeed, vexatious. A direction to the Registrar under O.58 r.4(3) might be given, a subsequent application for leave to issue might be refused by a Justice, yet the application for leave to issue the writ or process would not count in deciding whether the person had "frequently" instituted legal proceedings.[36]

38 There is no reason, in my view, why this reasoning should not apply equally to the present proceedings.

39 Whether proceedings are vexatious is a question of fact to be determined objectively.[37] In Attorney-General for the State of Victoria v Horvath, Senior,[38] Ashley J carefully summarised the existing authorities on the question of vexatiousness:

It is one thing to know what the word "vexatious" means. It is another thing to apply s. 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s. 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files - documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s. 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results [Citations omitted].[39]

40 That summary has been frequently adopted by judges of this court determining applications brought under s 21(1).[40] I, too, gratefully adopt it now.

41 In Attorney-General v Wentworth,[41] Roden J considered vexatious proceedings to divide into three, general, categories:

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) they are instituted with the intention of annoying or embarrassing the person against whom they are brought; or

(2) they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise; or

(3) irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.[42]

42 Although the ultimate question is not whether the proceeding has been instituted or conducted vexatiously,[43] the way a proceeding is conducted may tend to prove that its nature and substance is vexatious. In my view, this is more likely to be the case where the proceeding falls into the first or second of Roden J's categories because those categories are concerned with the intentions or purposes that lie behind the litigation. In this way Roden J's taxonomy is perfectly consistent with Ashley J's third point, at [31] above.

43 I, like Whelan, Forrest, and Williams JJ before me,[44] respectfully adopt Roden J's taxonomy. I, too, make one qualification to the third or 'objective' category of vexatious proceeding: though hopeless, 'a genuine claim, or element of a claim, may exist within a vexatious proceeding, where it is deeply buried in untenable claims and bizarre allegations.'[45]

44 The Attorney-General's submission, as I understand it, is that the 18 unsuccessful leave applications belong to this third category.

45 Attorney-General v Wentworth is also frequently cited in this jurisdiction for Roden J's definitions of the terms 'habitually' and 'persistently':

"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.[46]

46 In Brogden v Attorney General,[47] the New Zealand Court of Appeal, considering an equivalent of s 21(2), defined the term 'persistently' in this way:

A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed.[48]

47 That statement, like Roden J's, has been consistently adopted by this Court.[49]

48 A distinction has developed between proceedings that are vexatious because they are utterly hopeless, and proceedings that are vexatious for some other reason. In Attorney-General v Weston, Whelan J observed,

The requirement that proceedings also be instituted without any reasonable ground is necessarily satisfied if the proceedings are utterly hopeless. It seems to me that Toohey J [in Jones v Skyring, at p 309] was correct in identifying an element of tautology in the provisions. This requirement will have an independent operation if the proceedings are considered vexatious on a basis other than their hopelessness. In that instance, the fact that the plaintiff followed independent legal advice in bringing a claim may be relevant.[50]

49 The statement of principle, or similar, was applied in Attorney-General v Wentworth,[51] per Roden J, Attorney-General v Slaveski,[52] per Williams J, Attorney-General v Bahonko,[53] per J Forrest J and appears to have been assumed by Bongiorno J in Attorney-General v Pham.[54]

50 Mr Knight has unsuccessfully brought 18 applications for leave to commence proceedings in this court since he was declared a vexatious litigant in 2004. It follows from my observations at [35]-[38] that there is there is a strong evidentiary basis for the finding that Mr Knight has continued to 'institute proceedings' within the meaning of s 21(2).

51 Each of those applications was dismissed on the basis that the proposed proceeding was foredoomed to fail, or was otherwise an abuse of process, or because Mr Knight had not satisfied the Court that the proceeding was not foredoomed to fail, or was not otherwise an abuse of process. The Attorney-General is correct to note that it was Mr Knight who bore the onus on these applications and that, taken at their highest, the orders dismissing the applications do no more than establish that he has failed in discharging that onus. In a number of applications judges of this Court have, however, expressed a positive view that the proceedings are or would be untenable.[55]

52 The Attorney-General is only required to establish a prima facie case and on the question of vexatiousness I am satisfied that he has done so. I note, as the Attorney-General did, that at the substantive hearing of these proceedings he may have to go further to 'bridge the gap' between the findings in Mr Knight's leave applications and a positive finding of vexatiousness.

53 I consider the number of unsuccessful applications to provide an evidentiary basis for the finding that Mr Knight has continued to institute vexatious proceedings 'habitually and persistently'. In considering this question I have assumed that each of the applications was vexatious and it is appropriate that I make such assumptions on an interlocutory application such as this.

54 Finally, if it is the Attorney-General's case that each of the unsuccessful leave applications constitutes an 'objectively' vexatious proceeding and, as above, if I assume that the Attorney-General satisfies me of that fact, then it follows as a matter of course from the principles discussed at [48]-[49] that the proceedings were instituted without 'reasonable excuse'.

55 I turn now to the balance of convenience. Mr Knight's principal submission is that it would be unjust to grant interlocutory injunctive relief where the plaintiff could have brought the proceedings sooner, and in failing to do so is partially responsible for the necessity to adjourn the matter off. The Attorney-General has known this day was coming for 10 years. I agree with Mr Knight that it is unfortunate that the applications were not brought sooner.

56 The Attorney-General makes the following submissions on the balance of convenience:

Mr Knight will not be barred from bringing proceedings in this Court. He may continue to bring proceedings if he satisfies a Judge that the proposed proceedings would not be an abuse of process.
The proposed adjournment, until early 2015, is not lengthy in the circumstances.
Mr Knight's recent history in this court indicates that there is a strong prospect that unless restrained he would bring further legal proceedings.
In submissions, both oral and written, Mr Knight contends that but for two proceedings all other matters in which he is involved are 'on hold' pending an application to the High Court. If this be the case, Mr Knight does not suffer prejudice if the status quo is maintained.
A failure to preserve the status quo would have the very real risk of rendering the Attorney's application nugatory, an application that is brought by the Attorney in his public capacity in aid of the administration of justice.

57 In my view, there is force to submissions 1-4. I add to these the following observations.

58 Although I do not agree that a failure to grant interlocutory relief would risk rendering the applications nugatory, it is true that those applications are brought in the Attorney-General's public capacity in aid of the administration of justice. Court resources are precious. If Mr Knight were free to bring vexatious proceedings, and he in fact brought vexatious proceedings, it would be the public purse that suffered. A claim cannot be brought to recover these losses.

59 Further, Mr Knight has previously brought successful proceedings in this court. Those cases demonstrate that, although inconvenient, s 21(4) has permitted Mr Knight to litigate when he has a genuine claim.

60 Although it is unfortunate the applications were not brought sooner I consider the balance of convenience to favour the preservation of the status quo. It follows that I will also adjourn the further hearing of the application to a date to be fixed 2015.

61 I consider it appropriate to make the orders in the form sought by the Attorney-General. From 31 October 2014, the Vexatious Proceedings Act 2014 will take effect and s 21 of the Act will be repealed. In my view, transition between the regimes will be simpler if there is, at the time of repeal, an extant order under s 21(2) of the Act. I will, therefore, make the limited variation under s 21(5) of the Act.

The further hearing of the Application and the proceeding commenced by Originating Motion filed 5 September 2014 (S CI 2014 4677) be adjourned to a date to be fixed in February 2015 or so soon thereafter as the Court fixes.
Paragraph 2 of the Judgment and Order herein given and made on 19 October 2004 is varied by deleting the words,

"until the final determination of the Plaintiff's application brought in this proceeding by summons filed 5 September 2014 or earlier order,"

The parties have liberty to apply on reasonable notice.

[1] By Originating Motion dated 5 September 2014 in proceeding S CI 2014 4677.

[2] By summons dated 5 September 2014 in proceeding S CI 2003 9420.

[3] As he must pursuant to s 21(4) of the Act; see, generally, Phillip Morris Ltd v Attorney-General (Vic) [2006] VSCA 21; (2006) 14 VR 538 and Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378.

[4] Affidavit of Stephen Lee, dated 5 September 2014 ('the First Lee Affidavit'); Affidavit of Stephen Lee, dated 15 September 2014 ('the Second Lee Affidavit'); Affidavit of Stephen Lee, dated 24 September 2014 ('the Third Lee Affidavit').

[5] See, e.g. Knight v Anderson [2007] VSC 278 at [31].

[7] Yahome Pty Ltd v Delic [2013] VSC 52 at [66].

[8] 'The fundamental importance in a judicial hearing of ensuring that each party has equal and proper opportunity to present his or her own case (which involves full and proper challenge to the case of the opposite party) is really too obvious to require authority': Grusauskas v Deputy Commissioner of Taxation [2005] VSCA 49 at [12].

[12] Australian Broadcasting Corp v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] ('ABC v O'Neill').

[13] Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, 153-4 (Mason CJ), cited with approval by Gleeson CJ in ABC v Lenah Game Meats (2001) 208 CLR 199 at [13]; ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57; Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 286 ALR 257.

[14] See, for example, Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 ('Beecham'): 'The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.'

[15] See, Nicholas John Holdings Pty Ltd v ANZ Banking Group Ltd [1992] VicRp 98; [1992] 2 VR 715 at 723; Bullock v Federated Furnishing Trades Society of Australasia [1985] FCA 19; (1985) 5 FCR 464; OD Transport Pty Ltd v Government Railways Comm (WA) (1986) 13 FCR 270; Bradto Pty Ltd v Victoria [2006] VSCA 89; (2006) 15 VR 65 ('Bradto').

[16] The majority did not, however, object to the use of the second expression provided the 'seriousness of the question' was understood to depend upon 'the nature of the rights asserted and the practical consequences of the order sought': ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [70]- [71].

[19] Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-6; Brilliant Lighting (Aust) Pty Ltd v Baillieu [2004] VSC 248 at [8]; Otis Elevator Company Pty Ltd v Nolan [2007] NSWSC 593 at [7].

[20] BDO Group Investments (NSW-Vic) Pty Ltd v Ngo [2010] VSC 206 at [11] (Croft J) referring to 1st Fleet Pty Ltd v Australian Cooperative Foods Ltd [2006] NSWSC 881 at [5] (White J).

[28] Attorney-General (Vic) v Gargan [2013] VSC 19; Evidently, Emerton J took a similar view at a directions hearing in the proceeding ultimately determined by Bongiorno J in Attorney-General (Vic) v Pham [2014] VSC 311 ('Pham'). See, Pham [2014] VSC 311, [6].

[29] Or by leave of an inferior court or tribunal constituted or presided over by a person who is an Australian lawyer.

[32] Attorney-General for the State of Victoria v Weston [2004] VSC 314 at [23]; See also, for counterclaim: Attorney-General v Jones [1990] 2 All ER 636; for appeals: Mephistopheles Debt Collection Service v Lotay [1994] 1 WLR 1064; Ramsey v Skyring [1999] FCA 907; (1999) 164 ALR 378; Clemens v Phillip Morris Ltd [2008] VSCA 58.

[33] Weston [2004] VSC 314 at [12]- [13]; See, also, Attorney-General v Lindsey, Unreported, Supreme Court of Victoria, Kellam J, 16 July 1998; Attorney-General v Collier [2001] NZAR 137 at [31].

[37] Attorney-General v Weston [2004] 314, [14].

[40] See, e.g. Pham [2014] VSC 311, [18]; Attorney-General v Slaveski [2014] VSC 48, [35] and [36] ('Slaveski'); Attorney-General v Skinner [2013] VSC 259, [58]; Attorney-General of Victoria v Gargan [2013] VSC 222, [7]; Attorney-General for the State of Victoria v Bahonko [2011] VSC 352, [80] ('Bahonko'); Attorney-General for the State of Victoria v Moran [2008] VSC 159, [27]; Attorney-General for Victoria v Brian William Shaw [2007] VSC 148, [5].

[43] Re Vernazza [1960] 1 QB 197, 208 (Ormerod LJ).

[44] Slaveski [2014] VSC 48, [28]; Bahonko [2011] VSC 352, [82]; Weston [2004] 314, [14].

[45] Attorney-General v Michael [1999] WASCA 181 at [126], cited with approval in Weston [2004] 314, [15] and Slaveski [2014] VSC 48, [29].

[46] Attorney-General v Wentworth (1988) 14 NSWLR 481, 492. See also, Weston [2004] VSC 314, [20]; Attorney-General v Lindsey, unreported, Supreme Court of Victoria, Kellam J, 16 July 1998; Attorney-General for the State of Victoria v Kay [1999] VSC 30.

[48] Ibid, [21] (Thomas, Keith and Blanchard JJ).

[49] See, Slaveski [2014] VSC 48, [33]; Pham [2014] VSC 311, [97]; Bahonko [2011] VSC 352, [88]; Weston [2004] VSC 314, [21].

[52] Slaveski [2014] VSC 48, [34].

[53] Bahonko [2011] VSC 352, [90].

[54] See, particularly, Pham [2014] VSC 311, [93] and the final line of [98], in combination.