Plaintiff v Defendant

1 The Attorney-General applies under s 28 of the Vexatious Proceedings Act 2014 for a general litigation restraint order against the defendant, Mr Mark Whittingham. The Court may make a general litigation restraint order under s 29(1) of the Act:

The Supreme Court constituted by a Judge of the Court may make a general litigation restraint order against a person if the Court is satisfied that the person has persistently and without reasonable grounds commenced or conducted vexatious proceedings.[1]

2 The Court must be satisfied that Whittingham has commenced vexatious proceedings; and has done so persistently and without reasonable grounds. A general litigation restraint order is not to be made lightly as it deprives a person of the fundamental human right of free access to the Courts.

(a) a proceeding that is an abuse of the process of a court or tribunal;

(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c) a proceeding commenced or pursued without reasonable grounds;

(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.[2]

4 The term 'proceeding' is defined in s 3 of the Act to mean:

... any matter in an Australian court or tribunal, whether civil or criminal, including -

(a) any cause, matter, action, suit, proceeding, trial, complaint or inquiry of any kind within the jurisdiction of an Australian court or tribunal;

(b) any proceeding (including any interlocutory application) taken in connection with or incidental to a proceeding before an Australian court or tribunal;

(c) any appeal, review or other challenge, including an application for judicial review or an application for leave to appeal.[3]

5 The Attorney-General's case is that between 2013 and 2019, Mr Whittingham commenced more than 120 Court or tribunal proceedings. Many were against persons who had been witnesses or provided witness statements in criminal proceedings against him for fraud. He pleaded guilty to, and was convicted of, fraud offences and sentenced to terms of imprisonment. He commenced civil proceedings against police and others who investigated him following complaints, victims of his fraud and people who provided statements or gave evidence for the prosecution case. Many of his proceedings, in substance, alleged defamation or injurious falsehood or breach of privacy by persons who had made such statements. The proceedings, or many of them, were vexatious. Mr Whittingham was likely to commence new proceedings that were vexatious and a general litigation restraint order should be made preventing him from doing so.

6 Mr Whittingham disputed that his proceedings were vexatious. He said that he had been a victim of a police vendetta, which caused many people to make false and defamatory statements against him. The number of his proceedings reflected the large number of about 300 persons, whom police persuaded to make witness statements against him. He had reached reasonable solutions in most of his proceedings and there were few remaining proceedings. His bankruptcy in 2019 meant that he was restricted in commencing new proceedings, but a general litigation restraint order would inhibit his return to business life.

7 The Attorney-General's case was based on an affidavit by Detective Sergeant Wilson, who has been a Victorian police officer for 33 years and part of the Fraud and Extortion Squad since 2002. He conducted Operation Calcitic, which followed complaints by mortgage brokers and real estate agents that Mr Whittingham sold them loan trail books[4] and rent rolls, which did not exist or which he did not have authority to sell.[5] He said that the victims lived in different parts of the country and lost, on average, $30,000.

8 Detective Wilson was the team leader for the execution of search warrants at properties at which Mr Whittingham lived and participated in his arrest and interviewing. He liaised with witnesses and victims of Mr Whittingham's conduct and he was the informant for many of the charges laid against him. Wilson also obtained an interim personal safety intervention order against Mr Whittingham on behalf of the affected person.

9 Detective Wilson made his affidavit following searches conducted by Ms L Walker, a Senior Solicitor of the Victorian Government Solicitor's Office, of cases commenced by Mr Whittingham. Her searches revealed that he had commenced 128 proceedings since 1 January 2015 and that this Court has set aside three statutory demands served by him on companies. I take the following account of facts from Detective Wilson's affidavit.

10 Mr Whittingham was a broker of the sales of loan trail books and rent rolls. He traded as Buy a Trail Pty Ltd and Connection Blue Pty Ltd. According to Detective Wilson, he often sent unsolicited emails to mortgage brokers, real estate agents, private investors and companies about the purchase of books and rolls. When victims expressed an interest in purchasing a book or roll, Mr Whittingham sent them revenue figures for an 'historical month', promising further details upon payment of a deposit towards the purchase price. He sometimes promised that the deposit was fully refundable if the purchase did not proceed and would be held in a trust account until settlement. Mr Whittingham never provided loan trail book or rent roll assets to the victims, and they usually requested refunds of their deposit payments. But Mr Whittingham would either fail to refund all, or part, of the deposit, and use it to pay for his own lifestyle. On occasion, he did refund the deposit, but usually by several small payments and months after victims requested a refund.

11 Detective Wilson said that Mr Whittingham's civil proceedings have 'caused distress, inconvenience and financial harm to victims of his criminal offending and witnesses who assisted police investigations in Operation Calcitic'.[6] Equally, police who conducted Operation Calcitic and whom Mr Whittingham has sued, have been caused undue concern and inconvenience.[7]

12 The Victorian Police investigation, Operation Calcitic (Part I), related to two periods of offending. The first occurred between December 2010 and late 2013, and resulted in Whittingham being charged with 50 counts of 'obtain financial advantage by deception' contrary to s 82 of the Crimes Act 1958 ('Crimes Act') and one count of 'attempt to obtain financial advantage by deception' contrary to s 321M of the Crimes Act.

13 The second period of offending occurred between January and February 2015, while Whittingham was on bail, and resulted in him being charged with four counts of 'obtain financial advantage by deception' contrary to s 82 of the Crimes Act and four counts of 'committing an indictable offence whilst on bail' contrary to s 30B of the Bail Act 1977 ('Bail Act').

14 In January 2016, investigators at the Fraud and Extortion Squad learned that Whittingham had recommenced his offending shortly after being released from custody on bail on 24 July 2015. The investigation into this offending was named Operation Calcitic (Part 2). The alleged conduct involved Whittingham providing false personal and financial information to Westpac in order to fraudulently obtain different types of finance and apply for a home loan.

15 As a result of Operation Calcitic (Part 2), Whittingham was charged with: six counts of 'obtain financial advantage by deception' contrary to s 82 of the Crimes Act (total value $384,711), one count of 'attempt to obtain financial advantage by deception' contrary to s 321M of the Crimes Act and seven counts of 'committing an indictable offence whilst on bail' contrary to s 30B of the Bail Act.

16 As a result of further investigations, Operation Calcitic (Part 2.1) established that Whittingham had offended against ANZ and NAB in a similar way, over a similar period of time, as he had against Westpac. On 13 June 2017, as a result of Operation Calcitic (Part 2.1), Whittingham was charged with: ten counts of 'obtain financial advantage by deception' contrary to s 82 of the Crimes Act by obtaining credit facilities for five credit cards to a total value of $32,000 from NAB and personal loans/credit cards to the value of $60,150 from ANZ, and 14 counts of 'attempt to obtain financial advantage by deception' contrary to s 321M of the Crimes Act relating to attempts to obtain credit in the form of personal loans/credit cards to a total value of $47,000 from NAB and a total of $237,775 from ANZ.[8]

17 Mr Whittingham was sentenced to imprisonment three times for fraud because of the conduct described above or associated conduct. First, on 5 October 2016 in the Moorabbin Magistrates' Court for six months' imprisonment for fraud offences that did not form part of Operation Calcitic. Secondly, on 7 March 2019, Judge Trapnell sentenced Mr Whittingham to five years imprisonment with a non-parole period of three years and four months on 16 charges of obtaining a financial advantage by deception and two related summary offences arising out of Operation Calcitic Parts I and 2. Thirdly, on 29 August 2019, Judge Lacava sentenced Mr Whittingham to 12 months imprisonment with a non-parole period of six months for two charges of obtaining financial advantage by deception arising out of Operation Calcitic Part 2.1.[9]

18 Whittingham was declared bankrupt on 26 July 2019.

19 As mentioned, on 7 March 2019, Judge Trapnell sentenced Mr Whittingham on 16 charges of obtaining financial advantage by deception with the offending occurring over 42 months. The charges concerned the purported sale of insurance register trail books and rent rolls without authority or which were non-existent, including to many non-corporate victims. There were also false representations that monetary deposits paid would be fully refunded. There were fraudulent credit account applications. The total amount obtained was $744,877, with the victims' losses totalling $528,070.

20 The 16 charges related to three indictments: the first containing two charges which were referred to as the Weir Insurance Register Trail Book matter; the second containing seven charges, being the rent roll matters; and, the third containing seven charges, the loan trail book and Westpac matters.

21 The Weir Insurance Register Trail Book matter concerned Mr Whittingham purporting to sell an insurance register trail book for a price he knew was below the price at which he had authority to sell. Mr Weir paid a deposit of $5,000 to Mr Whittingham, but the sale could not proceed because of Mr Whittingham's lack of authority. The deposit was not repaid and the amount of Mr Weir's loss was $13,934.80, which remains outstanding.[10]

22 The second set of charges related to four victims for offences that occurred between January and June 2013. Mr Whittingham purported to sell an asset that he either had no authority to sell or which did not exist. Next were charges relating to Mr Enzo Bufano. He paid deposits of $135,870.22 for rent rolls that Mr Whittingham could not sell and had no authority to sell. Mr Bufano has not recovered those amounts.

23 The third group of charges concern Ms Patricia-Anne Monk. In similar circumstances Ms Monk paid a deposit of $37,261.25 which has not been repaid.

24 The fourth set of charges concern Mr Andrew Amos who paid a deposit of $14,785.35.

25 The total amount defrauded and not repaid as a result of those transactions was $211,893.55.

26 Charges 5, 6 and 7 related to fraudulent car loan applications made by Mr Whittingham to Westpac to purchase a 2015 Land Rover Discovery sports wagon, a Mercedes Benz vehicle and a 2015 Range Rover sports wagon. In each case, Mr Whittingham was found to have provided fraudulent information to Westpac, including the name he gave and the details of his income that he provided. He fraudulently obtained $309,711 from Westpac. The actual loss to Westpac is $192,794.60 in relation to credit cards and three loan agreements. The Westpac charges also constituted committing an indictable offence while on bail.

27 Mr Whittingham was also convicted of being issued with a marine licence using the surname 'Logie', which was his wife's surname, providing a false address and making false statements to obtain the licence.

28 Judge Trapnell took into account victim impact statements which he said made it evident that Mr Whittingham's offending conduct had a profound, continuing effect on them that would also cause stress on the victims' family relationships and finances.

29 Judge Trapnell described Mr Whittingham's offending as grave, stating:

Over a period of some 42 months you repeatedly defrauded corporate and non-corporate members of the Australian business community of their financial assets. The total amount you fraudulently obtained from all your victims across the three indictments is about $744,877 and the victims' total losses are about $528,070.

...

Your crimes were sophisticated, well planned and executed and involved sustained fraudulent conduct on your part. Your motive for committing these crimes was to support yours and your family's lifestyle. Your offending also involved serious breaches of trust that you owed to your clients. I find you lack insight into your offending behaviour, its objective gravity and its effect on your victims.[11]

30 Concerning 'subsequent offences', his Honour also stated:

You have no prior convictions, but you have committed a large number of subsequent offences and you are charged with committing the Westpac matters whilst on bail for the other offences committed by you in the present case (summary charge 10).[12]

31 As previously mentioned, these included pleading guilty at the Moorabbin Magistrates' Court on 5 October 2016 to 32 charges of obtaining property by deception, three charges of obtaining a financial advantage by deception and one charge of committing an indictable offence while on bail. He was convicted and sentenced to six months aggregate sentence of imprisonment and ordered to pay compensation of $27,739.00. Pre-sentence detention of 170 days was declared. His Honour stated:

The majority of these offences comprised offending whereby you would advertise goods for sale on the Gumtree website. The victims would purchase goods advertised by you and deposit funds into your bank account to cover the purchase price. You never supplied the goods and kept the purchasers' money. You committed these offences by using your own name and two aliases.

Two charges relate to you fraudulently obtaining two BMW motor vehicles from a dealership in Brighton. You committed another offence by not paying for accommodation at a hotel in South Yarra amounting to $5,786.00. Yet another offence related to you purporting to purchase a house in Hampton, living there for six weeks under a contractual licence, and never paying the deposit. You used an alias in committing this crime.[13]

32 Judge Trapnell summarised his conclusions in the following terms:

It is clear that since July 2012 you have been a consistent and persistent fraudster, conducting numerous schemes to obtain money, goods or services from your innocent victims, to which you were not entitled. You have been and, in my opinion, remain a financial hazard to this community.[14]

33 On 29 August 2019, following Mr Whittingham's plea of guilty to two charges of obtaining a financial advantage by deception from NAB of $33,000 and from ANZ of $30,150, Judge Lacava sentenced him to an aggregate sentence of 12 months with a non-parole period of six months. His Honour stated:

As I indicated earlier this offending is common but it is serious. Financial institutions and commerce generally cannot operate with this kind of offending going on. Financial institutions must be able to act on and trust the validity of the information they're supplied with. A good fraudster will always find a way through the system. You are a good fraudster because you brought your expertise learned over many years of working in the financial sector to your crimes. However the principles of totality mean that I must moderate the sentence that I would otherwise have imposed if dealing with these matters in a vacuum rather than in the background of those matters for which Judge Trapnell has already sentenced you for.[15]

34 Detective Wilson also gave evidence about Operation Phantom which led to Mr Whittingham being charged on 18 March 2020 with perverting the course of justice and attempting to pervert the course of justice. The charges were still to be determined when this current proceeding was heard. They concerned the authenticity of an email on which Mr Whittingham relied as a defence to charges of obtaining financial advantage by deception. The charges, which arose out of Operation Calcitic Part I, were that Mr Whittingham wrote a cheque for $100,000 as part payment of the deposit for the purchase of a house in East Brighton when there were no funds in the cheque account. The email purported to show that the vendors' solicitors were aware that there were no funds in the account and the defence argued that, as a result, the prosecution would be unable to prove dishonesty, which was an element of the offence. The email was purportedly written and sent by Mr Whittingham's wife to the vendors' solicitor, but she stated that she had no knowledge of it, did not write or send it, that the style of writing in the email was her husband's and that she did not know the recipient of the email. The production of the email caused Mr Whittingham's trial to be aborted.[16]

The categories of proceedings said to be vexatious

35 The Attorney-General described Mr Whittingham's vexatious proceedings as falling into a number of categories including the following.

36 Mr Whittingham commenced civil claims in VCAT which were not within its jurisdiction. For instance, he claimed remedies under the Australian Consumer Law and Fair Trading Act 2012 ('the ACL'),[17] without alleging or establishing a relationship with him as a consumer and the defendant as a supplier of goods or services.[18] He made such a claim against Corrections Victoria for clothes and other items which he claimed were either lost or destroyed during an incident at the Port Phillip remand centre.[19] The Tribunal dismissed it for lack of jurisdiction. Another proceeding against Detective Sergeant Wilson was dismissed for the same reason.[20] The Attorney-General submitted that Mr Whittingham had habitually commenced such proceedings without reasonable grounds.[21]

37 Next were Mr Whittingham's proceedings commenced in the Victorian Civil and Administrative Tribunal ('VCAT') under the Equal Opportunity Act 2010 for discrimination based on sex because Victoria Police had charged him with offences based on his use of his wife's surname, 'Logie', in business or financial dealings, including in obtaining loans. He contended that this did not breach the law. The Tribunal dismissed this proceeding as misconceived and lacking in substance because the relationship between Mr Whittingham and the officers he sued was not protected by the Equal Opportunity Act.[22]

38 Then there were Mr Whittingham's VCAT applications under the Freedom of Information Act 1982 ('FOI Act') for access to documents. including documents about the police investigations. VCAT either refused to file these applications or otherwise dismissed them, because he had not followed the statutory process of first seeking a merits review by the Victorian Information Commissioner of decisions to refuse him access to documents.[23]

39 Then there were Mr Whittingham's proceedings in the Magistrates' Court and the Supreme Court that did not disclose a cause of action or were otherwise baseless. Thus he commenced many defamation claims which included his proceeding against a former investigator of Consumer Affairs Victoria ('CAV')[24] for providing a statement to, or otherwise assisting, Victoria Police in Operation Calcitic. He contended that the employee had made defamatory statements about him and claimed $100,000 damages. The statement of claim did not detail these allegations.[25] Mr Whittingham's defamation proceedings, which sometimes described the defendants as having stated 'falsehoods', were commenced outside the 12 month limitation period for defamation proceedings, but within time for a proceeding for injurious falsehood, which was how Mr Whittingham described them. Each proceeding sought $100,000 being the maximum amount a plaintiff can claim in the Magistrates' Court.

40 Mr Whittingham also sued 'the Department of Justice - Consumer Affairs Victoria'[26] for defamation because of public notices it issued about him. That description of the defendant did not identify an entity that was capable of being sued.[27] Mr Whittingham also failed to adequately particularise his pleadings and commenced the proceeding outside the 12 month limitation period for defamation.

41 Mr Whittingham also commenced civil proceedings for breach of privacy or recovery of money paid under mistake. Many of these proceedings were commenced in the Magistrates' Court and often claimed $100,000 damages, the limit of the Court's jurisdiction. The Attorney-General submitted that these actions did not disclose a cause of action and accordingly had no reasonable basis.

42 The Attorney-General provided a table of the proceedings commenced by Mr Whittingham. He, in turn, provided his own table adding explanatory comments about most of his proceedings and also provided copies of Court orders made in many of them.

43 I will next consider many of Mr Whittingham's proceedings using categories that appear appropriate in deciding this application. I will not consider in detail all of the proceedings, but a number that exemplify the significant categories into which the proceedings fall.

44 First is Mr Giuseppe Augello, who was the principal of Ezy Option Finance. He provided a witness statement and gave evidence for the prosecution as a victim in loan trail book matters. Mr Whittingham pleaded guilty to one charge of obtaining a financial advantage by deception, totalling $50,000, from Mr Augello and was sentenced to imprisonment. Mr Augello made a victim impact statement.

45 Mr Whittingham sued Mr Augello in the Magistrates' Court for $100,000 damages for 'ongoing medical, employment and accommodation costs' as a result of falsehoods about his 'legitimacy' made in a statement to Victoria Police.[28] Mr Augello denied those allegations, but his defence was struck out after he did not appear nor was represented at a pre-hearing conference. His Honour Magistrate Maxted awarded Mr Whittingham nominal damages of $1 stating in his order:

Having regard to the material filed in the proceeding by the plaintiff, the plaintiff's claim for damages for injurious falsehood, and in the circumstances where the plaintiff pleaded guilty on 7/3/19 to a charge in indictment G1071101 of the County Court of Victoria of obtaining a financial advantage by deceiving Mr Augello, that the plaintiff was convicted of such conviction or its sentence, I find that the plaintiff is entitled to 'nominal damages' only.

1. Nominal damages are awarded in the sum of $1.00.

2. Interest on that sum from the date of issue of the writ 17/1/2019 to 6/7/2020.

3. Plaintiff's disbursements only, costs to be taxed by a Registrar of the Magistrates' Court on Scale 'A' and paid by the defendant.

46 Mr Whittingham justified suing Mr Augello because he said that evidence had been obtained since the guilty verdict.[29] He did not say what it was.

47 Vassili Spiroglu of Longbeach Real Estate was a victim of Mr Whittingham's conduct in a rent roll matter and provided a witness statement for the prosecution.[30] Mr Whittingham pleaded guilty to one charge of obtaining a financial advantage by deception, totalling $24,200, from Mr Spiroglu[31] and was sentenced to imprisonment. Mr Spiroglu made a victim impact statement.[32] Mr Whittingham sued him for defamation for his complaints to CAV and to Victoria Police.[33] Mr Whittingham said the proceeding did not proceed. The Court order states that the proceeding was dismissed under Order 21.11 of the Magistrates' Court Rules 2010, which permits the dismissal of a proceeding upon default in compliance with the Rules. Many of the Court orders produced by Mr Whittingham are in similar terms. He did not explain on what basis he could sue Mr Spiroglu, when he had pleaded guilty to obtaining financial advantage by deception from him.

48 Ms Patricia-Anne Monk of Aloha Real Estate made a witness statement for the prosecution in a rent roll matter. Mr Whittingham pleaded guilty to one charge of obtaining a financial advantage by deception, totalling $37,000, from Ms Monk and was sentenced to imprisonment. She made a victim impact statement. He sued Ms Monk for falsehoods and defamation claiming $100,000 damages.[34] He said that her statement to CAV and Victoria Police contained falsehoods and caused them to take action against him and arrest him. He did not explain how his plea of guilty permitted him to make such claims. The court order records that the proceeding was dismissed under r 21.11 of the Magistrates' Court Rules.

49 Mr Enzo Bufano was the principal of Taylors Real Estate Agents Pty Ltd and was a victim in a rent roll matter. He made a statement for the prosecution and also a victim impact statement. Mr Whittingham pleaded guilty to two charges of obtaining a financial advantage by deception, totalling $135,870.22, from Mr Bufano/Taylors Real Estate and he was sentenced to imprisonment.

50 Mr Whittingham sued Mr Bufano and Taylors Real Estate in VCAT for $10,000 under the ACL, claiming that an earlier action brought against him by Taylors Real Estate in 2013 had damaged his reputation. VCAT dismissed the proceeding.[35] He also sued them in the Magistrates' Court for $100,000 damages.[36] According to Mr Whittingham, that proceeding was adjourned because of this proceeding. As I later note, Mr Whittingham wishes to continue with his proceeding against Mr Bufano.

51 Anthony Barnes and Tony Ottavio of Mission Home Loans provided witness statements for the prosecution as victims in a loan trail book matter and Mr Barnes gave evidence for the prosecution. Mr Whittingham sued them in the Magistrates' Court for damages for defamation/injurious falsehood contained in their witness statements.[37] The court order records that the proceeding was dismissed under r 21.11 of the Magistrates' Court Rules. Mr Whittingham said that the proceeding was resolved and did not proceed.

52 Mr Whittingham sued Mr Barnes and his company claiming that he paid them $3,247.23 in error which he only discovered in August 2017 when Mr Barnes was giving evidence in the criminal proceeding.[38] The complaint was dismissed under r 21.11 of the Magistrates' Court Rules. Mr Whittingham said that he took no action because of the sequestration order.

53 Mr Whittingham also sued Mr Barnes in VCAT seeking the return of monies under the ACL which he claimed were paid in error. That sum was the same which he sought repayment in the Magistrates Court proceedings.[39] VCAT rejected his application on the grounds that it lacked jurisdiction to make the orders he sought.

54 Robert Clive Bell, a principal of a real estate agent business, made a complaint to CAV about the conduct of Mr Whittingham and his company after paying him a $1,000 deposit to purchase a rent roll that was never supplied.[40] Mr Whittingham sued Mr Bell and his company for defamation seeking $100,000 damages and claiming that his statement represented the falsehood that he was dishonest, untrustworthy and unreliable.[41] He said that Mr Bell's statement led CAV to take action against him and to issue a public warning about him. Mr Whittingham apparently sought judgment in default of defence, but was unsuccessful because the 'complaint discloses no proper [cause] of action and further, that the affidavit of loss and damages does not arise from the cause of action...'. Mr Whittingham said that 'the matter is not ongoing'.[42]

55 Mr Whittingham commenced civil proceedings against PK Invest Pty Ltd and its director Pat Sciarrone, a victim in a loan trail book matter, who gave evidence and made a statement for the prosecution.[43] Mr Whittingham sued them for defamation and breach of contract. He said that Mr Sciarrone made a false and misleading complaint or statement to Victoria Police that resulted in criminal charges being brought against him in March 2015. A verdict of not guilty was entered. The proceeding was dismissed by consent with no order as to costs.

Other proceedings in defamation or injurious falsehood

56 Mr Whittingham also sued many people who had provided prosecution statements or who gave evidence against him, and who claim to be victims of his conduct. He sued them for defamation or injurious falsehood.

57 Mr Whittingham commenced proceedings in the Magistrates' Court against car dealers for a variety of causes of action. He sued SMG Prestige Cars Pty Ltd t/as Brighton Landrover for defamation because it made a statement to police annexing documents relating to the sale of his car in Operation Calcitic.[44] The proceeding was discontinued; Mr Whittingham said that terms of settlement were reached. He sued HFH Prestige Pty Ltd t/as Berwick Jaguar Land Rover for breach of consumer rights in the Magistrates' Court. An employee of that business had made a statement and provided documents to Police.[45] The proceeding was struck out by consent.

58 The following people made statements to the police and were then sued in defamation or because of 'falsehoods' meaning injurious falsehoods: Frank Musker;[46] Terry Langlois;[47] Holmes Finance Pty Ltd and Stephen Lambert;[48] Vault Mortgage Corporation Pty Ltd and Danielle Paci;[49] Gregory Mellington;[50] Aussi McHugh[51] and Vision Mortgage Solutions Pty Ltd.[52] Each of these proceedings was dismissed by the Magistrates' Court under r 21.11 of the Magistrates' Court Rules.

59 Mr Whittingham sued people who had posted critical comments about him online[53]. Mr Whittingham said that each of these proceedings was resolved or did not proceed. At least the first was dismissed under r 21.11 of the Magistrates' Court Rules.

Claims against police and law enforcement officers

60 Mr Whittingham also commenced civil proceedings against police and law enforcement officers involved in Operation Calcitic.

61 He sued Detective Sergeant Wilson in a number of civil proceedings. In one proceeding, he claimed that Wilson took clothing and other items from his dwelling and failed to return them after promising to do so.[54] He claimed compensation under the ACL, but VCAT lacked jurisdiction to determine that claim.[55] Mr Whittingham said that a similar claim, not listed in the Attorney-General's table of cases, is still before the Magistrates' Court.[56]

62 Steven Yeo was a Detective Leading Senior Constable who investigated Mr Whittingham's conduct and was the informant on some of the charges against him. Stephen Taylor is a Detective Leading Senior Constable who investigated Mr Whittingham and is also the informant on some of the charges.

63 Mr Whittingham sued Detectives Yeo and Wilson for defamation and malicious prosecution, claiming $100,000 damages. He alleged that during Operation Calcitic, the Detectives contacted many people and 'provided [them] with the falsehood that [he] had committed a crime and that he had adopted a false name being (Mark William Logie) and that [he] was brandishing a false 2015 tax assessment notice to obtain or attempt to obtain finance'.[57] The falsehoods provided or gave the impression that he was dishonest and that led the persons 'to freely provide a statement and annexed in some cases personal and private documents without warrant or cause'. He also commenced separate, but similar, proceedings against Yeo. Both proceedings were withdrawn by consent with no order as to costs.[58]

64 Mr Whittingham sued Detectives Wilson and Taylor alleging that the execution of a search warrant in Operation Calcitic caused him damages of $82,364.[59] He withdrew that proceeding. It is relevant to record that in connection with that proceeding, in September 2019, the Victorian Government Solicitor's Office wrote to Mr Whittingham at Barwon Prison referring to his letter in which he advised that he would not pursue any further complaints against Taylor or 'his fellow police officers' and that Taylor would not be required to file a defence as the matter 'won't be proceeded with'.[60]

65 Mr Whittingham also sued Detective Wilson claiming that he caused him loss by interfering with his commercial interests or contracts by executing a search warrant and seizing cars. That proceeding was withdrawn by consent.[61]

66 A part of the investigation/prosecution concerned allegations that Mr Whittingham had falsified or greatly inflated income figures that he reported to the ATO that led to tax assessments that he used to support his applications for finance to Westpac, ANZ and the NAB. Mr Whittingham sued officers of the Australian Taxation Office, who in performing their duties, provided information for Operation Calcitic. Thus he sued Peter French and Sourina Simmalavong for breach of privacy after they made witness statements. That proceeding is apparently still on foot, although Mr Whittingham said it has been resolved, however, no final orders to this effect are before the Court.

67 Mr Whittingham also sued Corrections staff.[62] An example was his proceeding against Ms S Fumberger, who worked as the information technology co-ordinator/manager at Corrections Victoria. She gave evidence at pre-trial hearings describing Mr Whittingham's access to computer files whilst on remand. Mr Whittingham sued her in the Civil Claims list of VCAT alleging that she had confiscated two USBs which he needed for his defence. He sought $50 compensation and an order for their return. VCAT rejected the application as beyond its jurisdiction because it did not arise from the supply of goods or services in trade or commerce. Mr Whittingham applied for a review of the rejection, but withdrew his application. Mr Whittingham said that he did so after becoming aware that the confiscation of the USBs was at the request of Victoria Police.

Proceedings by Consumer Affairs Victoria against Mr Whittingham

68 Mr Whittingham's dealings with CAV are described in an affidavit of Ms P Athanasiadis, who is the General Manager for the Legal Services Branch. She said that between 2011 and 2012, Consumer Affairs received approximately 23 complaints regarding Buy a Trail Pty Ltd. On 28 September 2012, CAV issued a public warning notice regarding the company, which stated:

The Director of Consumer Affairs Victoria has issued a Public Warning notice to consumers about the business practices of Buy A Trail Pty Ltd ACN 149 207 849 ('the company') and its director Mark William Whittingham.

Consumer Affairs Victoria has received a number of complaints from clients of the company, which is now in liquidation.

The company and Mr Whittingham sent unsolicited emails to brokers regarding the sale of loan trail books (a database of loan details that a broker uses as part of their portfolio). The purchaser of the loan trail book is entitled to the trailing commissions on the loans.

Consumer Affairs Victoria has received information that Mr Whittingham asks for a deposit from interested brokers and has received deposits ranging from less than $10,000 up to $60,000. Information packs provided by Mr Whittingham to brokers specify that the deposit is fully refundable if the prospective purchaser decides not to buy the loan trail book.

Mr Whittingham has also made representations to prospective buyers that he will place their deposit monies in a trust account. Despite these representations a number of brokers have reported that the deposits have not been returned in full, or at all, despite many requests.

On 17 August, the Federal Court in NSW ordered that the company be wound up and a liquidator appointed. The liquidator confirmed that clients of the company may submit claims against the company with the liquidator for consideration, and it will arrange for the company's website (buyatrail.com.au) to be shut down.[63]

69 Following this, in February 2013, Consumer Affairs investigated Connection Blue's conduct. On 8 March 2013, Consumer Affairs issued a second public warning notice for Connection Blue Pty Ltd.

70 On 19 March 2013, the Director of Consumer Affairs obtained an interim injunction preventing Mr Whittingham and Connection Blue from requesting or receiving any money or other consideration for the sale and supply of any mortgage trail book or rent roll. On 27 June 2013, Mr Whittingham and Connection Blue were ordered to pay $198,331.57 to consumers by 9 July 2013 and on 27 August 2013, the Magistrates' Court issued a final injunction operating until 1 July 2023. It also disqualified Mr Whittingham from managing any corporation until 1 September 2028.

71 On 8 May 2018, Mr Whittingham applied for a rehearing of the orders of 27 August 2013. The Director of Consumer Affairs filed a summons objecting to the application.[64] On 15 August 2018, the Magistrates' Court allowed Mr Whittingham to withdraw the application.

Mr Whittingham's proceedings against Consumer Affairs Victoria

72 On 8 November 2018, Mr Whittingham sued the Department of Justice-Consumer Affairs Victoria seeking $70,958 'as a result of the actions of a CAV inspector, who inspected Mr Whittingham's goods that had been left behind at a property. The inspector valued the goods left behind as less than the cost of their removal. Mr Whittingham's claim was to cover the cost of replacing the items.[65] Mr Whittingham said that the proceeding was adjourned pending the outcome of this proceeding.

73 Mr Whittingham also sued a CAV Compliance and Enforcement Officer, Enola Agastra**,** claiming $100,000 damages for defamation.[66] Agastra made a statement to the police and was involved in the CAV investigation and court action against Mr Whittingham which resulted in his disqualification from managing companies. This proceeding was struck out by consent. Mr Whittingham said a resolution was reached.

74 On 8 November 2018 Mr Whittingham sued the Department of Justice-Consumer Affairs in the Magistrates' Court claiming damages for defamation because of the public warning notice issued.[67] The Department did not receive Mr Whittingham's complaint until 3 December 2019 and the matter is ongoing.

Mr Whittingham's claims for money paid by mistake and in debt

75 As previously mentioned, Mr Whittingham sued people who had assisted the Police investigation, claiming repayment of money paid to them by mistake, which he only discovered during the criminal proceedings.[68]

76 For example he sued Acceptance Finance Pty Ltd and Mr Daniel Di Conza. They were sued for a debt, for damages for injurious falsehoods and for breach of confidentiality in the Magistrates' Court because of statements they provided to police.[69] He justified commencing these proceedings because he contended that the not guilty verdict showed that Mr Di Conza's statement was false.

77 Mr Whittingham also sued Mr Di Conza and Acceptance Finance for $41,396.40, which he claimed to have paid them in error which he only discovered during the criminal proceedings.[70] He did not explain what this mistake was or why he only discovered it during the proceeding.

78 A similar proceeding was commenced against M Dulevski of Gartora Enterprises Pty Ltd who provided a witness statement for Operation Calcitic that formed part of the prosecution case. In 2019 he sued them in the Civil Claims List in VCAT, but his proceeding was struck out with a right of reinstatement. He also sued them in the Magistrates' Court alleging that upon their purchase of a mortgage trail book, they agreed to pay him 20% of the purchase price for every successful sale of a trail book that he referred to them.[71] He claimed that they failed to honour the agreement and owed him $8,000. The proceeding was either struck out or withdrawn by consent. Mr Whittingham states that terms of settlement were agreed upon between parties.

79 Mr Whittingham sued Advanced Wealth Financial Services Pty Ltd and Richard Gardner in the Magistrates' Court claiming financial loss of $119,660 as a result of the defendants' deception in not disclosing that they had purchased a mortgage trail book after he gave them the vendor's details.[72] He said that under terms agreed he was to receive 20% of the purchase price for every successful sale that he referred to Advanced Wealth Services. The Magistrates' Court refused his application for a default order because it was not satisfied that there was sufficient evidence of the matters pleaded or that the complaint was properly served. Mr Whittingham said that the matter was then resolved and did not proceed.

80 Mr Whittingham also sued Advanced Wealth Financial Services and Mr Gardner in VCAT for amounts he alleged owing to him following their purchase of a mortgage trail book,[73] but he withdrew the proceeding with leave of VCAT.

81 Mr Whittingham sued Paul Hartgers and PH Property Investments for amounts totalling $7,391.86, which he claimed he had paid them in error.[74] Mr Hartgers made a witness statement to the police. The complaint was dismissed.[75]

82 Amanda Jean Hall provided a witness statement to police and gave evidence at the trial of charges following her complaint against Mr Whittingham in the County Court in September 2017. He sued her in VCAT's Civil List claiming that he had agreed to purchase a property from her under a terms contract requiring that he pay her $2,500 per week. He said while he lived at the property, he paid for maintenance and improvements. He claimed that Ms Hall agreed to pay him $265,000 and owed him that amount. He withdrew the proceeding two months after it was commenced.

83 He also sued Ms Hall in the Magistrates' Court for breach of contract or non-payment of amounts due under an agreement. He claimed damages of $31,948. His interlocutory application was dismissed with costs of $486. Mr Whittingham said that the claim could not proceed due to the sequestration order.

84 In separate proceedings, Ms Hall obtained an order in the Magistrates' Court requiring Mr Whittingham to pay her $16,067.40.[76] He unsuccessfully sought a rehearing claiming that he was unable to attend the hearing due to issues with legal representation and being unable to access documents seized by police. Mr Whittingham was ordered to pay Ms Hall's costs of $1,074.[77]

85 Mr Whittingham then commenced Supreme Court proceedings seeking leave to appeal from Magistrates' Court orders that he pay Ms Hall $14,344.50 plus costs. He also appealed the order of the Magistrates' Court made in 2013 preventing him from engaging in business activities involving mortgage trail books and rent rolls until 2023 and requiring him to publish a related notice in newspapers. These two proceedings could not proceed because of the sequestration order.

86 Simon Norris was the director of Sida Pty Ltd, a mortgage broking firm, and provided a statement to police for the prosecution. Mr Whittingham claimed that he negotiated with Mr Norris for the sale of mortgage trail books to him. He said that under the negotiated terms he was to receive 20% of the purchase price for every successful sale that he referred to Sida. He said that he referred potential vendors of books to Sida and it purchased them, but Sida and Norris did not honour the agreement and he lost revenue of $56,299. Mr Whittingham said that he learned of the deception during the criminal proceedings.[78] Mr Whittingham said that the proceeding was adjourned pending the outcome of this proceeding. Sida and Norris also purchased a database from him. He agreed to refund their purchase price for it on the basis that they would no longer use it, but they have continued to do so.

87 Ms Jeanette Studd is the mother of Mark Studd, who arranged a bail address for Mr Whittingham. She made a witness statement to police that was used by the prosecution in bail applications. A dispute arose about the board or rent that Mr Whittingham was to pay and he commenced proceedings in VCAT and the Magistrates' Court. Only documents relating to the Magistrates' Court proceeding were before this Court. That proceeding was dismissed at arbitration.[79] He also sued Ms Studd in the Magistrates' Court for defamation. Police obtained an interim Personal Safety Intervention order on her behalf against him. It remains in place, although apparently Mr Whittingham is seeking to discharge it.

88 Mr Whittingham sued Ms Studd for defamation arising from a statement that he made to police and claimed damages of $100,000.[80] He claimed that she made a false statement to police that he had wilfully damaged her car, a matter raised to oppose his bail application made in this Court in 2018. The proceeding is ongoing and has been adjourned pending the outcome of this proceeding.

89 He also sued Mark Studd for defamation, but he said that the proceeding was resolved.

Mr Whittingham's proceedings in VCAT claiming discrimination because of his use of his wife's surname

90 Mr Whittingham commenced proceedings in VCAT'S Human Rights List claiming that he had suffered unlawful discrimination because of his use of his wife's surname 'Logie' in financial and business dealings and in loan applications. Mr Whittingham said that 'is untrue and a man can use his wife's names without a name change' and pointed out that the prosecutors withdrew criminal charges based on his use of a false name, alias or of his wife's surname.[81]

91 For example, he sued Danni Brann and Coast to Coast Conveyancing in VCAT for discrimination,[82] after Brann's witness statement was used in his prosecution. He said that Bran had alleged to Police that he had attempted to purchase a property using a false name. The proceeding was withdrawn. Mr Whittingham sued Coast to Coast Conveyancing in the Magistrates' Court for breach of privacy because the defendant made a statement to police Mr Whittingham said the matter proceeded in the Magistrates' Court and was settled.[83]

92 Mr Whittingham sued Mr S Draper and Mr A Matthews and their employer Westpac in the Human Rights List of VCAT, claiming that they discriminated against him by investigating him, and cooperating with police, after he attempted to purchase a property using his wife's surname.[84] Mr Draper provided a statement that was used in the prosecution case. Mr Whittingham claimed compensation including $36,000 for his loss of the deposit on the property. Mr Whittingham withdrew the proceeding in VCAT. However, he said that the matter went to the Magistrates' Court where a resolution was reached.[85]

93 Then there were Mr Whittingham's proceedings against three car salesmen and their employers: HRH Prestige Pty Ltd,[86] NGP Melbourne Pty Ltd[87] and SMG Prestige Cars Pty Ltd[88] who made witness statements that were used in the prosecution. The defendants were Adrian Miller, Richard Sullivan and Darren Barnett and their respective companies. Mr Whittingham commenced discrimination claims against them in VCAT claiming that they discriminated against him by assisting police and others who were investigating his use of his wife's surname.[89] These proceedings were withdrawn.

94 Mr Whittingham also commenced claims in VCAT against Detective Yeo, Victoria Police and Detective Beddegenoodts alleging that in breach of the Equal Opportunity Act 2010 they had discriminated against him in the provision of goods and services.[90] He alleged that during an interview, they told him that he could not use his wife's surname without a formal name change. He also claimed that Yeo told people that he had used a false name. VCAT summarily dismissed the application because it was misconceived and lacking in substance[91] as Mr Whittingham had failed to establish that the respondents were providing him with 'a service'. The Member stated:

I have concluded that there is no area of public life covered by the EO Act which is relevant to this application. I have also concluded that there is no authorised or assisted discrimination or sexual harassment.[92]

95 Mr Whittingham based many of his civil proceedings against people or businesses who had provided statements or information to police on allegations of breach of privacy. Sometimes those claims overlapped with claims for defamation. These claims were mainly commenced in the Magistrates' Court and were brought against individuals, businesses, and schools attended by his children.

96 An example was Mr Whittingham's claim for breach of privacy against Mercedes Benz Mornington (NGP Melb).[93] Mr Whittingham's case was that he purchased a Mercedes Benz from that dealership with Mr R Sullivan acting as the sales person. The contract of sale included a privacy clause and the purchase was in his 'name by marriage that being Mark William Logie'. Logie was his wife's surname. In February 2020 Mr Sullivan, with the authority of the dealership, provided information to a police officer, Detective Yeo, about the car sale and produced an eight page statement. Yeo contended that Mr Whittingham had purchased the car with a false or alias name. Whittingham's case was that the dealership failed to protect him from breach of the privacy conditions and had no authority to release the information. He was arrested and the car removed and he said that he suffered loss of business. The proceeding was struck out because it did not disclose a cause of action or did not have reasonable prospects of success.

97 An example of Mr Whittingham's claims of breach of privacy against estate agents was his proceeding against Biggin Scott (Port Melbourne) for breach of consumer rights including privacy rights.[94] It provided police with a statement about Mr Whittingham residing at a particular premises. Mr Whittingham said that the proceeding was not continued, but did not say why. He sued Robert Hodges Real Estate Agency Pty Ltd and Sam Paynter for breach of privacy.[95] They made a statement to police detailing Mr Whittingham's attempt to purchase a property. Mr Whittingham said that the matter has been resolved.

98 Kay & Burton Real Estate Pty Ltd made a statement to police about Mr Whittingham residing at a particular address and annexed his tenancy records**.**[96] His proceeding against them was discontinued with no order as to costs. Mr Whittingham said the claim was resolved and terms of settlement reached.[97]

99 Private schools attended by Mr Whittingham's children provided police statements about school fees and travel expenses. These schools were Brighton Grammar School, Firbank Grammar School, Melbourne Girls Grammar School, St Leonards College and Mentone Grammar School. Mr Whittingham sued them in proceedings commenced in the Magistrates' Court for breach of consumer rights and breach of privacy claiming $100,000 damages because of the effects of the breaches of privacy on him and his family.[98] He alleged that during Operation Calcitic, the schools' staff made statements to Victoria Police and 'freely provided intimate details of the education of' his children, including personal and private account records without justification. He said the matters were resolved and did not proceed, but does not say why.

Additional proceedings alleging breach of privacy

100 He also commenced proceedings for breach of privacy against banks, Australia Post, Telstra, Australian Taxation Office, finance industry organizations and accountants who provided information directly or indirectly to police.[99]

101 In 2019, Whittingham issued creditor's statutory demands against DJ Grigg Accounting Pty Ltd, Homesmart Home Loans Pty Ltd and Holmes Finance Pty Ltd. Directors of those companies had made statements to police. The Supreme Court set aside each of those demands and Mr Whittingham was ordered to pay the costs of the proceedings.

102 The Attorney-General submitted that the Court should find that Mr Whittingham has persistently and without reasonable grounds commenced or conducted vexatious proceedings. The Court should therefore exercise the power contained in s 29 of the Act to make a general litigation restraint order against him.

103 The Attorney-General submitted that Mr Whittingham has been a 'prodigious litigator' over the last five years, commencing approximately 128 proceedings many of which were untenable or manifestly groundless with no prospects of success.[100] He habitually commenced proceedings against persons connected to, or involved in, Operation Calcitic or investigations by CAV.

104 The table of cases provided by the Attorney-General contained 106 proceedings and her counsel submitted that many were simply fanciful, obviously untenable or manifestly groundless. These included proceedings commenced in VCAT when it did not have the necessary jurisdiction, discrimination claims under the Equal Opportunity Act stemming from Mr Whittingham's grievance about the police bringing charges based on his use of his wife's surname; and proceedings commenced in the Magistrates' Court and the Supreme Court that did not disclose a cause of action or were otherwise baseless.

105 Those proceedings demonstrated Mr Whittingham's tendency to repeatedly and persistently bring claims without a proper basis to gain retribution against those who had 'crossed him' in the context of the regulatory proceedings and the police investigation and subsequent prosecution.[101]

106 The Attorney-General submitted that Mr Whittingham commences proceedings because he sees conspiracies, makes 'outlandish allegations' and seeks 'forms of relief that the courts do not grant'. His affidavits suggested that he justified his conduct as restoring the wrongs of a conspiracy against him.[102] But proceedings commenced for such a reason are vexatious, as the Western Australian Court of Appeal explained in Attorney General (WA) v Michael:

[P]roceedings may be vexatious for the purposes of the Western Australian statute without necessarily being 'utterly hopeless' which I take to mean plainly devoid of any merit whatever. The litigant who seeks dark conspiracies and the threat of great harm to himself or herself in the trivial wrongs of another may provide an example. The commencement of an action by such a person, containing outlandish allegations and seeking forms of relief that the courts do not grant, may be vexatious, notwithstanding that it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy.[103]

107 Most of the proceedings relied on by the Attorney-General were commenced against people or companies who assisted Victoria Police with their investigations of Mr Whittingham's conduct. These proceedings were brought to harass or annoy, to cause delay or detriment, or to achieve another wrongful purpose within the definition of vexatious proceeding.

108 He sued a number of people who made police statements in support of charges to which he was found not guilty. He has a grievance against people who assisted Victoria Police or CAV in their investigations or other actions. This was evident from his recording six times on his case table the following statement made in similar terms, save for the name of the defendants and case details:

It must be noted that it appears the Plaintiff is somehow inferring that Anthony Barnes was just a witness in Operation Calc[i]tic. Anthony Barnes made a false and misleading compliant/statement to Victoria Police that resulted in criminal charges in March 2015 against me. The County Court of Victoria entered into the record Case reference CR 16 01438 (Not Guilty) directly against the defamatory allegations by Anthony Barnes on 6/2/2018

The affidavit of Detective Craig Wilson and Linsey Walker failed to include this important fact that I commenced civil proceedings in the Magistrates' Court of Victoria against parties directly relating to the appalling investigation led by Detective Craig Wilson after the Not Guilty entry on the record.[104]

109 On 7 September 2020, when the Attorney-General had commenced this application, Mr Whittingham emailed Ms L Walker of the Victorian Government Solicitors' Office which in relevant parts stated:

I must put you on notice that I will be seeking a restraining order preventing your office or Victoria Police from interfering in proceedings before the courts.

It is known that Craig Wilson is and has been in contact with the other parties in the various court proceedings and this is also evidenced in his affidavit.

Craig Wilson is a police officer and is in some way interfering with due process in civil proceedings. Better known as perverting the course of justice.

...

Wilson will need to be called, and I will require discovery of the persons he claims in his affidavit he has been in contact with.

Anyway we can do this nice or not?

Either way the vexatious proceedings are contested and procedural fairness must and will be exercised in the Supreme Court of Victoria.

Could you please provide a copy of the overarching certificate and proper basis certificate?[105]

110 The Attorney-General submitted that Mr Whittingham's bankruptcy will not prevent him from commencing new civil proceedings as he considers that he can still do so to recover damages for injurious falsehood.

111 Mr Whittingham made three affidavits and written and oral submissions. He argued that his business was ruined by Operation Calcitic and that Victoria Police and Consumer Affairs failed to understand its nature and that the products he sold were not tangible products. He had worked for almost 25 years in banking and financial services but his career was ended by false and misleading allegations or injurious falsehoods and the orchestration of the charges. His business was the largest of its kind in Australia until it was destroyed by Detective Wilson 'who commenced a vendetta against my family and me'.[106] He said that he was charged on the basis of a 'complete fabrication of lies perpetrated by parties and supported by [Mr Wilson]'.[107]

112 He said that the Victoria Police investigation commenced with complaints by people involved in mortgage broking and buying and selling rent rolls who posted false allegations about his business online. They contacted Victoria Police who then involved Consumer Affairs, which obtained orders stopping his bank accounts and thereby destroying his business. Victoria Police conducted a two year investigation and assembled over 300 witnesses. He was arrested in March 2015 and was granted bail in June 2015.

113 He accused Wilson of manipulating witnesses so he could put him behind bars and destroy his reputation. He said that he was the one 'wronged through a course of false and defamatory statements over a long period of time by a number of parties that ultimately led to a not guilty verdict in the County Court'.[108] Because he was found not guilty of certain charges, he adopted the view that witness statements relied on by the prosecution to support those charges were untrue. He said that in late 2018 he commenced a series of civil proceedings for injurious falsehood against persons who had made false statements about him and his business.

114 In 2016, Detective Wilson commenced another investigation, which was conducted by his assistant, Detective Yeo. It led to him being charged with using a false name and a false tax return to buy a house and cars and obtaining credit cards using his wife's surname while he was on bail. He considered those charges to be a form of discrimination. He alleged that the police investigators informed witnesses that he was using a false name and 'this enticed them to produce witness statements that were presented to them' by Detectives Yeo and Wilson.[109]

115 Mr Whittingham was remanded in custody and refused bail. He could not obtain legal representation, did not have access to legal resources, made freedom of information requests and issued subpoenas to obtain documents for his defence. He was in jail from March 2016 until March 2020 when he was paroled. As he described it, he 'was in gaol for a very long period of time... had very few resources and any mistakes that [he had] made...were because he was not a legal expert'.[110] He was doing the best he could to fight a criminal investigation that took nearly four years and ran 200 days in the County Court.[111] There were 300 witnesses and the brief of evidence consisted of 24,000 pages plus supplementary material of more than 1,000,000 pages. The many civil proceedings that he commenced had to be viewed in the context of the voluminous nature of the County Court prosecutions.

116 He could not understand why the Attorney-General sought a general litigation restraint order when only about nine of his cases remain on foot and they have been placed on hold pending the outcome of the Attorney-General's application. That application relied on many cases that were commenced five years ago and were concerned with the criminal proceedings. Mr Whittingham said that a plea arrangement was reached at his criminal trial whereby he would plead guilty to five charges concerning cars he had acquired because he could not prove that his tax return, upon which he relied to obtain finance, was legitimate.[112] He attempted to change his plea in relation to the tax charge, but that was refused. He pleaded guilty to one offence in the trail book trial, which was for $17,000. He said that he was forced to plead guilty to charges because Victoria Police withheld information that he needed for his defence.

117 The prosecution withdrew other charges and not guilty verdicts were entered in respect of them.[113] These withdrawn charges included allegations based on his use of his wife's surname. Subsequently he pleaded guilty to some further offences in relation to rent rolls. Judge Lacava dealt with the remaining matters.

118 Some of the not guilty verdicts related to charges which were based on statements of people he has subsequently sued. He considers that the not guilty verdicts entered in relation to the mortgage trail books, rent rolls and financial planning books means that the investigation led by Detective Wilson was 'malicious and ill informed'.[114]

119 He said that he was not conducting a vendetta, rather that he has been wronged and he is only standing up for his rights. His injurious falsehood proceedings were commenced within time even if the defamation proceedings were not. The sequestration order prevents him from commencing any proceedings, but he can deal with past claims, including the nine matters left before the Court. In any event, he does not intend to commence any new proceedings and he has not filed any new applications for nearly two years.[115]

120 Mr Whittingham contended that he had succeeded in some of his civil proceedings, for example, the proceeding against Mr G Augello. But he was awarded nominal damages of $1 when damages were assessed following the striking out of Mr Augello's defence for failing to appear. His explanation for suing Mr Augello after he had pleaded guilty to criminal charges of defrauding him, was that he had discovered new evidence after his plea of guilty.[116]

121 He said most of his cases had already resolved on settlement terms or he had decided not to proceed or had discontinued them. He explained that the nine cases that were still outstanding were all being dealt with by the same Magistrate.[117] But he could take no further step in them because of the sequestration order. However, that order did not prevent him pursuing his injurious falsehood claims because of s 60(4) of the Bankruptcy Act 1966 (Cth).

122 Mr Whittingham named six matters that he particularly wanted to continue, but said that there were others that were not in the Attorney-General's application. One of the ongoing matters concerns Mr E Bufano and Taylors Real Estate whom he had pleaded guilty to defrauding. He said that since his plea 'new evidence has come up'.[118]

123 Mr Whittingham said that he had no intention of taking any further action against any party and he would give an undertaking if required to withdraw proceedings, as he wants to get on with his life.[119] He said that a number of the matters had been resolved amicably, although he could not give details because there are confidentiality clauses in the terms of settlement. He was concerned that if he returns to work in a business, the litigation restraint order would affect him being able to recover unpaid bills.

124 In addition, other persons would be affected by a general litigation restraint order, because they had spent thousands of dollars in legal expenses in response to his proceedings.[120] There were costs issues still to be decided associated with the adjournment of proceedings.

125 For a proceeding to be vexatious, it must be an abuse of the process of a court or tribunal; commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose; commenced or pursued without reasonable grounds; or conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.[121]

126 It is generally not necessary, in assessing the character of a proceeding, to re-examine in detail its circumstances. Rather, the character of the proceedings should be apparent upon the reading of any reasons for judgment or order. If a proceeding has been dismissed or struck out on the ground that it is vexatious or an abuse of process, it is usually unnecessary to look behind that order.[122]

127 In Attorney-General (Vic) v Horvath, Ashley J stated four matters that should be taken into account when determining whether a person has instituted proceedings in a vexatious manner:

[F]irst, 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.[123]

128 Mr Whittingham's apparent belief that he is the victim of a conspiracy by Victoria Police and CAV does not justify the many civil proceedings that he has commenced.

129 Much of Mr Whittingham's litigation was against people associated with his prosecution. But the Court must accept and act on the guilty verdicts, not least because they followed his plea of guilty. Mr Whittingham is bound by those verdicts and, although he unsuccessfully sought to change his plea in respect of the Westpac charges, he did not seek to appeal them on the basis of new evidence. His own pleas of guilty establish that he committed fraud and two County Court Judges, in sentencing remarks, described Mr Whittingham's fraudulent conduct in detail.

130 Mr Whittingham sued people whom his own pleas of guilty established were victims of his fraud and who had suffered personally and financially from his actions. His excuse that he had discovered new information leads nowhere as he has not explained its nature or sought to appeal his convictions out of time on the basis of that new information.

131 The award of nominal damages against Mr Augello illustrates the vexatious nature of many of his proceedings. All that his civil proceeding against Mr Augello achieved was the award of $1 nominal damages.

132 Mr Whittingham said that he had settled many of his civil proceedings on confidential terms. The Attorney-General submitted that I should not place much weight on settlements because they might be favourable or unfavourable to Mr Whittingham. The Court should rather consider the overall impression gained from Mr Whittingham's litigious conduct.[124]

133 I consider that I cannot give the terms of settlement any great weight, because Mr Whittingham has not explained or proved the nature or strength of any claims he may have had. Even when confidential terms of settlement are reached, the cause of action or the factual basis for the proceeding does not necessarily become confidential. In any event, many of Mr Whittingham's claims were resolved without entry into terms of settlement and, therefore, he could have explained their nature and how they were resolved. He issued proceedings and then discontinued them. Many cases were commenced against Victoria Police officers and then withdrawn and he apparently told the Victorian Government Solicitor's Office that he would not pursue any further complaints against police officers. No basis has been established for the commencement of the proceedings in the first instance. In addition, he sued many people twice, once in VCAT and once in the Magistrates' Court. For the period 1 January 2015 to the date this proceeding commenced, being 11 August 2020, Mr Whittingham brought a new proceeding on average every 16 days. On 8 November 2018, he commenced 45 proceedings.[125]

134 Even allowing for the fact that Mr Whittingham was self-represented and for much of the time in prison, I consider that he commenced many proceedings without a proper basis. The Civil Procedure Act 2010 prohibits a person from making any claim or response to any claim in a civil proceeding that is frivolous, vexatious, an abuse of process or does not, on the factual and legal material available to the person at the time of making the claim or responding to it, have a proper basis.[126]

135 While few of his proceedings went to judgment, the fact that they were vexatious proceedings is demonstrated by other features of them.

136 I find that at least the following proceedings that Mr Whittingham commenced were vexatious proceedings.

137 First are the proceedings commenced against people after he had pleaded guilty to charges, in essence, of defrauding them, which are described in [44]-[50]. His proceedings against people who were victims of his frauds as established by his own pleas of guilty are particularly serious examples of vexatious proceedings and amount to harassment of persons whom he had been found guilty of defrauding. He provided no proof that he had discovered new evidence that justified such actions and he wishes to continue one such proceeding against Mr Bufano. In addition to these cases, are many other cases some, of which are described in [51]-[55], in which Mr Whittingham sued people who had provided prosecution statements.

138 Secondly are the many proceedings that he commenced which were not within the jurisdiction of either VCAT or the Magistrates' Court, or where no matters were pleaded or stated to establish that the proceeding was within jurisdiction. They include the proceedings against Corrections Victoria [36] and against Corrections employees [67]; against Mr Anthony Barnes [53]; against Detective Wilson [61]; against Detective Yeo, Victoria Police and Detective Beddegenoodts [94]; and against Mercedes Benz Mornington [96].

139 Thirdly are Mr Whittingham's many proceedings against people such as schools, financial institutions and estate agents, who provided information to police as part of the police investigation, that they could have been compelled to produce under subpoena. These proceedings are described in [95]-[100]. He sued them for breach of privacy, or for defamation or injurious falsehood. Providing such information to police does not create any cause of action. Mr Whittingham apparently considers that a not guilty verdict entered under a plea agreement means that the complaint leading to the relevant charges was false. This demonstrates a misunderstanding of criminal procedure. A verdict of not guilty being entered on a number of the charges laid against him does not mean the statements provided by persons, which were relied on to support those charges, were defamatory. Nor does it mean that Victoria Police and CAV were acting improperly. It was a matter of prosecutorial discretion not to lead evidence on certain charges against Mr Whittingham and to make a plea arrangement. He pleaded guilty to the remainder of the charges.

140 Fourthly are Mr Whittingham's proceedings claiming breach of the Equal Opportunity Act because of police actions and bringing of charges against him because he had used his wife's surname in business dealings. Examples of such proceedings are described in [90]-[94].

141 Fifthly are his many proceedings against Victoria Police officers, Consumer Affairs officers and other law enforcement officers, which were not shown to have substance. Most were discontinued and Mr Whittingham ultimately informed the Victorian Government Solicitor's Office that he would not pursue any further complaints against police officers. Some of these proceedings are described in [61]-[66] and [72]-[74].

142 Sixthly are his proceedings to recover monies paid by mistake and which, he said, were only discovered during the criminal proceedings. He has not established that these proceedings have any substance or how he came to discover the error during the criminal proceedings. The debt claims were mainly discontinued. Examples of these proceedings are described in [75]-[86].

143 Seventhly are the instances in which Mr Whittingham sued people in both VCAT and the Magistrates' Court for substantially the same causes of action. Examples are his claims: against Mr Bufano and Taylors Real Estate [50]; against Mr Barnes [52]-[53]; against M Dulevski [78]; against Advanced Wealth Financial Services and Mr Gardner [79]-[80]; against Ms Hall [82]-[84]; against Ms Studd [87]; against Mr Draper, Mr Matthews and Westpac [92].

144 I place less significance on the FOI applications, as in some instances they were made for the production of documents possibly relevant to the prosecutions and made while he was in prison and without legal representation.

145 The overall impression of many of the proceedings, having regard to their nature and substance, is that Mr Whittingham has commenced proceedings which are vexatious in nature. They appear to have been designed to harass people, who were incidentally caught up in his prosecution. The many claims for breach of privacy against five schools are a clear example of this.

146 I apply the reasoning of Heenan J in Granich Partners v Yap and find that Mr Whittingham's wish to right the wrongs of a conspiracy against him by commencing civil proceedings results in them being vexatious.[127] This finding has implications for most of his proceedings. Applying the third point in Horvath the 'nature and substance'[128] of the proceedings suggests that they are vexatious.

147 I find that Mr Whittingham has commenced vexatious proceedings persistently in the sense of continually and repeatedly. I find that he has commenced them without reasonable cause, in that they had no proper basis. I also find that the proceedings commenced against person directly or indirectly involved in Operation Calcitic, especially those referred to in [137]-[143] above, were commenced to harass or annoy them or to cause them delay or detriment.

148 In considering whether to make a general litigation restraint order, I have considered Mr Whittingham's submission that he does not intend to commence new proceedings and is prevented from doing so by the sequestration order. But, in my opinion, based on the manner in which Mr Whittingham has conducted previous cases, there is a real risk that he will seek to commence or conduct new proceedings without reasonable cause. His conduct in suing people whom he had pleaded guilty to defrauding suggests that he lacks insight into his past conduct. He has persisted in raising the same issues when he has been unsuccessful. Whatever merit might exist in Mr Whittingham's complaints of defamation and breach of privacy, once they are considered in the context of his belief in a conspiracy, it is clear that they are vexatious proceedings. In Attorney-General v Weston, Whelan J said 'that proceedings brought without bad faith need not be plainly devoid of any merit whatsoever in order to be considered vexatious.'[129]

149 One of the proceedings that Mr Whittingham wishes to continue is against Mr Bufano and Taylor's Real Estate. That proceeding relates to one of the charges to which he pleaded guilty, but where he said 'new evidence has come up'.[130] He did not explain the nature of that new evidence. In my opinion, to commence, and wish to continue, proceedings against a person whom he has pleaded guilty of defrauding, supports the need for the grant of a general litigation restraint order. If he has any evidence that would justify the proceeding continuing, he can apply for leave from the Magistrates' Court to continue it. The same position applies to the other proceedings which he said that he wished to continue:[131] against Mark Flinn; Sida Pty Ltd and Simon Norris; Janette Studd; Department of Justice relating to actions of Consumer Affairs Victoria and Hallamco Pty Ltd and Amanda Blanch.

150 I do not consider that Mr Whittingham's bankruptcy is a reason not to make a general litigation restraint order. I apply the reasoning of McDonald J in Attorney-General for the State of Victoria v Garrett.__[132] His Honour noted that pursuant to s 60(2) of the Bankruptcy Act, any action commenced by a person who subsequently becomes a bankrupt is stayed upon that person becoming bankrupt. The trustee in bankruptcy may elect whether to continue the action. A bankrupt's ability to commence new proceedings is also limited by s 60(4)(a) of the Bankruptcy Act which provides:

(4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt:

(a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or

151 However, his Honour noted that notwithstanding those provisions there was still potential for a person to commence proceedings if it fell within the exception contained in s 116(2)(g) dealing with the bankrupt's right to recover damages for personal injury or wrong done to them. That provision states that subject to the Act, the rule that all the bankrupt's property is divisible among creditors does not apply to:

(g) any right of the bankrupt to recover damages or compensation:

(i) for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt; or

(ii) in respect of the death or de facto spouse of the bankrupt or a member of the family of the bankrupt;

and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person.

152 McDonald J found that the manner in which the person had conducted applications supported a finding that, notwithstanding his bankruptcy, there was a real risk that he would continue to commence and/or conduct vexatious proceedings unless he was bound by a restraining order. The fact that he was an undischarged bankrupt supported the conclusion that he would be unlikely to have any capacity to pay any costs orders made against him. The prospects of a costs order was therefore unlikely to be any disincentive to commencing baseless proceedings.[133]

153 His Honour pointed out that a general litigation restraint order would not preclude the person from bringing proceedings where such proceedings where they had merit, but he would need the leave of the Court. The onus was placed on him to demonstrate that any proposed proceeding had sufficient merit to warrant the grant of leave to continue or commence it.[134]

154 I consider that those reasons apply equally to Mr Whittingham. He contends that he can continue his proceedings for injurious falsehood. An action in injurious falsehood requires proof of a false statement by a defendant concerning the plaintiff's goods or business, publication of that statement by the defendant to a third person, malice on the part of the defendant and proof by the plaintiff of actual damage, which may include a general loss of business suffered as a result of the statement.[135] The issue of whether an action in injurious falsehood is a 'wrong done to the bankrupt' within s 60(2)(g)(i) does not have to be decided now.[136] That issue does not have to be decided now. Assuming for present purposes, that he can continue such a proceeding, it is particularly significant that he wishes to continue his proceeding against Mr Bufano whom he pleaded guilty to defrauding and whom Judge Trapnell considered to be a victim of his fraud.

155 Mr Whittingham's desire to continue his action against Mr Bufano is a reason why a general litigation restraint order is necessary. Before he can continue such proceeding, he should at least satisfy the Magistrates' Court that he should be given leave to do so.

156 I consider that I should exclude from the general litigation restraint order Mr Whittingham's proceeding against John Charles Work which is proceeding S ECI 2019 04269. That proceeding is a dispute about a deceased estate in which Mr Whittingham said that he was trying to reclaim a property that he inherited from his aunt.[137] The Attorney-General did not oppose this suggestion.

157 It follows from my findings that a general litigation restraint order under the Vexatious Proceedings Act 2014 should be made against the defendant, Mr Mark Whittingham. The order will be in the following terms:

1. Until further order of this Court, pursuant to ss 29 and 30 of the Vexatious Proceedings Act 2014, the Court orders that Mr Mark William Whittingham must not:

a) continue any proceeding in any Victorian court or tribunal without leave of the Victorian court or tribunal in which the proceeding is being heard; or

b) commence any proceeding in any Victorian court or tribunal without leave of the Victorian court or tribunal in which the proceeding is to be heard.

2. Order 1 does not apply to proceeding S ECI 2019 04269 between Mark Whittingham and John Charles Work.

3. Parties have liberty to apply on the question of costs of this proceeding if that is required.

158 I did not specify any period of duration of the general litigation restraint order: see s 33 of the Vexatious Proceedings Act 2014. I consider that the order should remain in force until further order of the Court. If, in due course, Mr Whittingham seeks to vary or revoke the order, because he considers that the circumstances which have caused the Court to make it have changed, he may make an application to this Court under Part 9 of the Act: see s 65.

[1] Vexatious Proceedings Act 2014 s 29.

[2] Ibid s 3 (definition of 'vexatious proceeding').

[4] As Mr Wilson describes, a loan trail book is a collection of loans that have been written by a mortgage broker. They are generally confined to a certain geographical areas. When a loan is written, the relevant lender will then pay an on-going monthly trailing commission on that loan to the broker for the life of the loan: CB 1890-1891.

[5] As Mr Wilson describes, a rent roll is a collection of all rental properties managed by a real estate agency. The managing agency receives a small percentage of the monthly rent as payment for managing each of the properties on the roll: CB 1891.

[6] Court Book (S ECI 2020 03249, Attorney-General v Whittingham, Ginnane J, Supreme Court of Victoria,) 1890 ('CB').

[8] Paragraphs 13-17 are taken from [16]-[20] of the affidavit of Craig Wilson of 31 July 2020.

[9] Affidavit of Craig Wilson of 31 July 2020, [22]-[24].

[10] DPP v Whittingham [2019] VSC 313, [26].

[15] DPP v Whittingham [2019] VCC 1409, [21].

[17] See Australian Consumer Law and Fair Trading Act 2012 ss 7-8.

[18] Transcript of Proceeding (S ECI 2020 03249, Attorney-General v Whittingham, Ginnane J, Supreme Court of Victoria, 12 November 2020) 24 ('T').

[23] See, eg, EB-20, EB-21, EB-22. See also Freedom of Information Act 1982 s 49A(1).

[31] DPP v Whittingham [2019] VCC 313, [35], [40].

[53] Key Media Pty Ltd (EB-54); see also the other persons named at (CB 833-4); see also Estate Agents Co-operative Ltd (CB 2445).

[68] Other people sued in such a cause of action included Felicity Heffernan and First State Mortgage Company Pty Ltd (EB-36), Jodie Hallam and Hallamco Pty Ltd (EB-39) and Andrew Greig and Optimise Financial Pty Ltd (EB-40).

[75] Other proceedings of a similar nature include against Vijay Gakhar (EB-41), Paul Hartgers and PH Property Investments (EB-34), Acceptance Finance Pty Ltd and Daniel Di Conza (EB-35), Anthony Barnes and Barnes Financial Services (EB-37), Mark Flinn and Homestart Group Pty Ltd (EB-38) and Jodie Hallam and Hallamco Pty Ltd (EB-39).

[91] Whittingham v Yeo (Human Rights) [2016] VCAT 2096.

[97] See also proceedings against Cayzer Real Estate (EB-84), Coast to Coast Conveyancing (EB-98), SEJ Real Estate (Foster) (EB-99) and EB -Stockdale & Leggo (Inverloch) (EB-100).

[98] EB-53, EB-66, EB-70, EB-82, EB-71.

[99] See also proceedings against Holmes Finance Pty Ltd and Stephen Lambert (EB-58), Citibank (EB-75), Australia Post (EB 76), DJ Grigg Accounting Pty Ltd and Benjamin Johnson (EB-77), Lindsay Brown & Associates and Shane Wylie (EB-92), Telstra Corporation Ltd (EB-94) and Equifax Australia Pty Ltd (EB-96).

[102] T 53. See also Granich Partners v Yap [2003] WASC 206.

[103] [1999] WASCA 181, [126] ('Michael') (noting that the definition of 'vexatious proceeding' in the Vexatious Proceedings Restriction Act 2002 (WA) s 3 is almost identical to that of the definition contained in the Vexatious Proceedings Act 2013 (Vic)).

[121] Vexatious Proceedings Act 2014 s 3 (definition of 'vexatious proceeding').

[122] Kay v Attorney-General for the State of Victoria [2000] VSCA 176; (2000) 2 VR 436, 437.

[123] [2001] VSC 269 [28] ('Horvath').

[124] T 54; See also Horvath (n 123) [28].

[126] See s 18.

[128] Horvath (n 123) [28] considering and applying Michael (n 103).

[129] [2004] VSC 314, [15] citing Michael (n 103).

[132] (2017) 51 VR 777.

[135] Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, 404 [52] (Gummow J).

[136] As to the meaning of 'wrong' in s 60(2) see Re St Gregory's Armenian School Inc (in liq) (No 2) [2020] NSWSC 1601, [47]-[49].