He also seeks an interlocutory order that the Public Trustee's unlawful eviction of him from his "lawful home" be rescinded and he be granted his right to return and remain in his "lawful home".
103 In my view, there is no arguable basis upon which the defendant could be entitled to the relief which he seeks. Apart from anything else, there is no substantive proceeding which was before a primary judge of the Court and which is now before the Court of Appeal in which any such relief was sought. The decisions of Hidden J and Greg James J were decisions in relation to the stay of execution of a writ of possession in proceedings CL 10421 of 2003. That writ was executed on 17 March, 2005. I regard the applications for a stay, the appeals from the decisions of Hidden J and Greg James J refusing a stay, and the application to review the decision of Tobias JA dismissing those appeals, as all vexatious. The application for a review of Tobias JA's orders is not itself the institution of vexatious proceedings as distinct from an application in proceedings which have already been commenced. But those proceedings are themselves vexatious. They are manifestly hopeless and they have been brought for the improper purpose of delaying the inevitable sale of the property.
104 The defendant submitted that if I were otherwise minded to make an order under s 84(2), I should exclude from the scope of that order the proceedings presently listed before the Court of Appeal on 11 May, 2005. I consider those are vexatious proceedings against which the plaintiff and the estate are entitled to be protected. I would not except them from the orders, even if s 84(2) permitted such a course, (a question I do not need to decide).
Execution of the Writ of Possession, Re-Entry and Fresh Proceedings
105 On 17 March 2005, the Sheriff delivered possession of the property at 36 Arthur Street, Dee Why to the Public Trustee following the defendant's eviction from the property. On 11 April 2005, the defendant re-entered the property. He did so notwithstanding the judgment of the Court that he deliver possession of the property to the plaintiff and his eviction from the property by the Sheriff. This was a brazen defiance of the Court's orders. The defendant says he did so because on 11 April he was granted leave to appeal to the "Full Bench" of the Court of Appeal for a hearing on 11 May. Even if that assertion were true, it would not justify the action which the defendant has taken. But the assertion is untrue. All that happened on 11 April, 2005 was that the Registrar in the Court of Appeal fixed the pending applications for hearing on 11 May. There was no grant of leave to appeal. The plaintiff did not submit before me that the defendant was in contempt of court and ought not to be permitted to be heard on the present application. It is unnecessary to decide whether the defendant is in contempt of court.
106 On 15 April 2005, the defendant filed a further notice of motion in proceedings 10421 of 2003 in which he seeks orders "endorsing [his] retaking possession, custody and control of his mother's land …" and "staying the Public Trustee … from entering in or upon the land …". In his affidavit in support of that notice of motion he deposed that he had been unlawfully evicted by the Public Trustee from the land. This ignores the fact that he was evicted by the Sheriff in accordance with a writ regularly issued, to enforce a judgment regularly obtained against him. Rather he asserted that he had rights at common law, equity and statute which he called upon the court to recognise and protect. This is yet another vexatious proceeding. It relies upon the same grounds as those upon which the defendant has repeatedly failed. The defendant sought that this proceeding also be excluded from the scope of any order I may make. I see no reason to do so.
107 So far as I am aware, that is the last of the proceedings instituted by the defendant against the Public Trustee.
Subsection 84(2) is Satisfied
108 This review shows that the defendant's proceedings have been repetitious. As the defendant's failures have accumulated, he has added to his complaints allegations of criminal conduct against the plaintiff, and allegations of bias and corruption on the part of the judiciary. These allegations are made on his bare assertion, or upon his attributing to facts a character which they cannot arguably bear. The defendant has been told repeatedly that his claims have no legal merit. He refuses to accept that that is so.
109 I am satisfied that the defendant has habitually and persistently and without reasonable grounds instituted proceedings which are vexatious on all three of the grounds described by Roden J in Attorney-General v Wentworth.
110 Many of them have been brought for the purpose of harassing and embarrassing the plaintiff. In my view, the scandalous allegations made by the defendant have been for that purpose.
111 The proceedings are also vexatious as having been brought for the collateral purpose of delaying the inevitable sale of the property by the proliferation of proceedings and inappropriate interlocutory applications within proceedings. It is not easy to say whether the defendant genuinely believes that a wrong has been done to him. Some judges have accepted that he has held such a belief. I am not prepared to say that he does not. Nonetheless, whether he genuinely believes himself wronged or not, he has deliberately instituted multiple proceedings to seek to ensure that there is always some application on foot upon which he can seek to rely to resist the Public Trustee's obtaining possession of the property. He uses the fact that proceedings have been instituted as a means of delaying the sale of the property, irrespective of his entitlement to the relief which he seeks in those proceedings. In my view, the proceedings are vexatious for that reason also.
112 None of the proceedings which, during the course of these reasons I have characterised as vexatious, has had any reasonable grounds. They are also so obviously untenable or manifestly groundless as to be utterly hopeless.
113 In his submissions in the present application the defendant did not address the proceedings which he had brought individually to seek to justify them. Rather, he advanced again the general grounds upon which he contends that the Public Trustee was not lawfully appointed as administrator of the estate, and upon which he contends he is entitled to beneficial and legal ownership of a half share of the property at 36 Arthur Street, Dee Why. I have dealt with those arguments during the course of these reasons.
114 Even if the initial claims which the defendant made were sound, (which they were not), that would not have been an answer to the plaintiff's claim. Litigants must accept the decisions of the Court subject, of course, to their rights of appeal. This principle applies no less to litigants who seek to ventilate their claims in inappropriate proceedings, and fail for that reason. The principle applies no less to a litigant who has the opportunity to advance such a claim but elects to withdraw, and not press his claim, because of adverse interlocutory rulings against him.
115 As the grounds for making an order under subs 84(2) are established, it is necessary to consider whether it is appropriate in the exercise of the court's discretion under that section, to make the orders sought. The making of an order under s 84(2) and the consequent restraint upon what is otherwise a person's entitlement to seek redress from a Court as a matter of right, is a serious matter. However the defendant has abused his rights of approaching the Court to redress any genuine grievance.
116 The plaintiff has been put to considerable delay and expense in the administration of what should be a simple estate through the institution and prosecution of repeated proceedings for which there is no justification. That can only operate to the disadvantage of the other beneficiary. It is likely also to operate to the disadvantage of the defendant in that the distribution which he will receive from the estate is likely to be substantially reduced owing to the costs which he has caused the Public Trustee to incur in the numerous pieces of litigation. Mrs Gittoes died on 27 April 2001. Because of the continuing litigation, it has been impossible for the plaintiff to prepare final accounts and proceed to any distribution of the estate. That is plainly unsatisfactory. Unless an order is made under s 84(2), the administration of the estate may never be finalised.
117 I do not consider it appropriate to make the declaration sought in order 1 of the summons and to which I have referred in para 1 above. Such a declaration would lack precision and be of no utility.
118 However I will make orders under s 84(2). The form of orders will follow those made in Attorney-General v Bhattacharya with appropriate adjustments.
Is the Last Application a Proceeding Instituted by the Defendant Within s 84(2)?
119 The orders which may be made under s 84(2) relate only to proceedings which may be, or have, been instituted by the vexatious litigant. Subsection 84(2) does not apply to any applications which the vexatious litigant may make in proceedings instituted against him. However, as Yeldham J said in Hunters Hill Municipal Council v Pedler, the question of what constitutes the institution of proceedings for the purposes of s 84 is a matter of substance, not form. His Honour said that it was probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current, are not within the section.
120 One of the pending applications is the notice of motion filed by the defendant on 15 April, 2005 in proceedings in the Common Law Division, 10421 of 2003, which were commenced by the plaintiff. However, I do not think that the proceedings CL 10421 of 2003 are proceedings which are still current. Judgment for possession was obtained in those proceedings and a writ of possession issued accordingly. The writ has been executed. In substance the defendant's notice of motion is a new proceeding instituted by him in which he seeks an unspecified declaration by which the court should "recognise, respect, protect and uphold" his rights, and injunctions restraining the plaintiff from exercising its legal rights as owner of the property in respect of which it already has judgment for possession. In my view, that notice of motion is a legal proceeding instituted by him within the meaning of s 84(2) and it will be subject to the restraint of orders made under s 84(2). I will make a declaration to that effect.
121 The orders will apply to all the pending applications brought by the defendant in the Court, including those in the Court of Appeal.
Regulating Applications for Leave
122 In defending these proceedings, the defendant made many allegations of criminal conduct against the Public Trustee and bias and corrupt conduct on the part of the New South Wales judiciary. Those allegations were contained in two statutory declarations which he made and which were attached to a document called "Defence". They were tendered by the plaintiff. There was no evidence in the proceedings to support the allegations. It is unnecessary to go through them all. In relation to the allegations against the Public Trustee, one example will suffice. The defendant asserted that the Public Trustee, with the leave of the Supreme Court, was committing perjury and making false and misleading statements. When asked to identify a particular statement made by the Public Trustee which he alleged was perjured, the defendant was unable to do so, saying only that it was contained in some document which he did not have to hand. The allegation that the New South Wales judiciary had given leave to the Public Trustee to commit perjury is as offensive as the allegation of perjury itself.
123 The defendant alleged that the judiciary was partial to the Public Trustee because the Public Trustee participated in the Supreme Court's Probate Users Group, a committee comprising a senior judge, (who did not hear any of the defendant's applications), court officers, representatives of the legal profession, trustee organisations and the Public Trustee. Like similar committees it reviews the efficiency of the Court's procedures and suggests reforms. He also alleged that judges received financial remuneration from the Public Trustee. This allegation was based on s 10 of the Public Trustee Act pursuant to which clerks in a Local Court may be appointed agents of the Public Trustee to carry out administrative functions and on clause 12 of the Public Trustee Regulation 2001, which provides for estates to be charged to cover the remuneration of persons so appointed. Supreme Court judges are not clerks of the Local Court. They perform judicial functions. They are not agents of the Public Trustee.
124 It was by putting a sinister complexion on these matters that the defendant sought to justify his serious allegations. I will not dignify the defendant's other allegations by reciting them. None of them had any proper basis.
125 The significance of this material is that it demonstrates the preparedness of the defendant to abuse the processes of the court by making allegations which, if made by a legal practitioner on behalf of a client, would properly result in disciplinary proceedings against that practitioner. The defendant is under no such constraint. At the hearing before me I had to warn the defendant on a number of occasions that he was abusing his privilege as an advocate. The defendant said that he intended to repeat the same allegations which are contained in his statutory declarations at the hearing of the applications which have been listed before the Court of Appeal on 11 May 2005. He sees the courtroom as a forum in which publicly to ventilate these matters. In doing so, he has an absolute privilege against defamation.
126 The plaintiff referred me to the observations of the Court of Appeal in Wentworth v Graham (2003) 57 NSWLR 741, dealing with the Court's inherent jurisdiction to supervise the conduct of interlocutory applications in existing proceedings, where a litigant has consistently abused the process of the court, inter alia, by making scurrilous and baseless allegations. There the Court of Appeal made orders requiring the litigant to show cause in writing, by way of affidavits and written submissions, why orders should not be made to restrain both the kind of interlocutory applications which she could bring, and the manner in which further interlocutory applications should be brought, in particular, that there not be further oral hearings of such applications. The inherent jurisdiction of the Court to regulate the conduct of a pending action so as to control the unwarranted and vexatious making of interlocutory applications was explained by the High Court in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 319-320. The Court said at 320:
" … there is an inherent power in the court to control the bringing of applications in the course of an action of which the court is seized for the purpose of preventing a party abusing the process of the court."
127 The High Court observed that such inherent power may be superseded by statute or by rules of court.
128 The plaintiff submitted that if an order were made under s 84(2), orders should also be made to control the way in which any applications under that subsection for leave to institute new proceedings, or to continue existing proceedings, should be brought and determined. I consider that it is appropriate, so far as the Court's inherent power permits, to make directions to control the manner in which applications for leave to proceed should be dealt with, so as to prevent the Court's process from being abused. That jurisdiction applies to pending proceedings.
129 In the proceedings in the Common Law Division and the Equity Division I will order that any application by the defendant for leave to continue proceedings instituted by him, including the proceedings purportedly instituted by him by notice of motion filed on 15 April 2005 in proceedings CL 10421 of 2003, be made by motion supported by an affidavit and written submissions. I will further order that unless the Court otherwise directs, there be no oral hearing of any such motion and that the hearing of any such motion be by way of written submission alone.
130 I do not think it appropriate that I should make orders regulating how any application for leave to continue proceedings in the Court of Appeal should be conducted. That will be a matter for the Court of Appeal.
131 Consequentially on making orders under s 84(2), I will also vacate the listing of the matters presently listed before the Duty Judge on 27 April 2005. That will not prevent the defendant from re-listing the proceedings if he obtains leave under s 84(2) to continue them. Nor, of course, will the orders preclude the plaintiff from making any application, either in the existing proceedings or by new proceedings.
Costs
132 The plaintiff sought orders that its costs be paid on an indemnity basis, that its costs of the proceedings be paid out of the defendant's entitlement in the estate, and that to the extent its costs were not otherwise satisfied by the previous orders, that its costs on the indemnity basis be paid out of the estate.
133 The grounds upon which counsel for the plaintiff submitted that the costs of the proceedings should be paid by the defendant on an indemnity basis were that the plaintiff had been compelled to bring the proceedings as a result of continued vexatious litigation by the defendant, and that the proceedings were brought in the interests of the administration of the estate.
134 I accept that the proceedings were properly brought in the interests of the administration of the estate, but I do not consider that that is a sufficient reason for ordering costs on an indemnity basis. Nor do I consider that the way the defendant has conducted the present proceedings warrants an order for costs otherwise than on the usual party and party basis. I do not think it unreasonable for the defendant to have resisted the application. The power which the plaintiff has successfully invoked is a drastic power which seriously abridges the right which the defendant enjoys in common with others to call upon the Court to decide his claim simply by making application in the prescribed way. The fact that the grounds for making the order have been amply established does not mean that it was unreasonable for the defendant to oppose the relief sought.
135 Although the defendant has made unfounded and scandalous allegations in the proceedings, he did not unduly prolong the proceedings. His statutory declarations were tendered by the plaintiff as evidence against him. I do not consider that he conducted the present proceedings in such a way as to justify an order for indemnity costs.
136 The plaintiff is however entitled to the usual order that the unsuccessful defendant pay the costs of the proceedings on the party and party basis.
137 As the plaintiff is acting in a representative capacity and in the interests of the estate in bringing the proceedings, it is entitled to be indemnified in respect of its costs from the estate on a trustee basis. The plaintiff may have recourse to the estate for any difference between its costs on a trustee basis and the costs recovered from the plaintiff.
138 The final question concerns how the costs payable by the defendant should be borne, if the defendant does not pay the amount for which he will be liable before the plaintiff is in a position to distribute the estate. In that event, I consider that under the rule in Cherry v Boultbee (1839) 4 My & Cr 442; 41 ER 171, (or the equity illustrated by that case, (Perpetual Trustees (WA) Ltd v Equus Corporation Pty Ltd, (Young J, 5/03/98 unreported)), the defendant is not entitled to participate in the distribution of the estate without making the contribution which he is required to make under the costs order in favour of the plaintiff which would restore the estate. (In re Peruvian Railway Construction Co Ltd [1915] 2 Ch 144 at 150; Courtenay v Williams (1844) 3 Hare 539 at 553-4; 67 ER 494 at 500). The equity will be satisfied either by the defendant making the contribution which he is required to make before the estate is distributed, in other words by paying the amount due under the costs order, or by the administrator treating the amount as if it had notionally been paid, dividing the fund for distribution between the defendant and Mr Allan Gittoes on that basis, and then deducting from the amount to be paid to the defendant, the amount of his unpaid liability. For example, if after the sale of the Dee Why property and meeting the costs and expenses of administration, including its costs of the various proceedings, the plaintiff holds net proceeds of $500,000 and the defendant is liable to pay $100,000 to the plaintiff under the various costs orders which have been made against him, the costs orders could be satisfied by the plaintiff distributing $300,000 to Mr Allan Gittoes and $200,000 to the defendant. (Re Melton [1918] 1 Ch 37 at 59).
139 This principle applies not only to the order for costs which will be made in these proceedings, but to the costs orders made in other proceedings. I do not consider that a declaration is strictly necessary. However there may be a question as to whether the costs payable to the Public Trustee in the present proceedings is a sum payable to it in its capacity as administrator of the estate. For the reasons I have given, the plaintiff is acting in its capacity as administrator of the estate and is properly taking a step which is necessary to enable the administration to be completed. In the circumstances there is some utility in making a declaration along the lines of that sought.
140 The summons seeks:
"An order that the plaintiff's costs of the proceedings herein be paid out of the defendant's entitlement in the estate of the late Rachel Isabell Gittoes."
141 It is appropriate to make a declaration to that effect, but one which resolves the ambiguity in the notion of the defendant's "entitlement in the estate". In the example I gave, the costs of $100,000 would not be deducted from the defendant's half share of $500,000. I will declare that except to the extent that the defendant's liability to pay the plaintiff's costs of the proceedings is otherwise satisfied, the amount to be distributed by the plaintiff to the defendant as his share in the estate of the late Rachel Isabell Gittoes shall be determined by notionally adding back to the moneys available for distribution to the beneficiaries the amount of the defendant's liability to pay the costs of these proceedings, to the extent to which it has not been satisfied, and by paying to the defendant one half of the amount thereby notionally available for distribution, less the amount of such liability.
142 It is not to be implied from the making of this declaration that it is only the costs of the current proceedings which can be dealt with in this way. However I have not been asked to make any orders or declarations in relation to the defendant's liability to the plaintiff under other costs orders. The declaration will not prejudice the rights of the plaintiff and Mr Allan Gittoes to claim that the same principle applies to the other costs orders.
143 Nor have I dealt with the question of whether the plaintiff or Mr Allan Gittoes is entitled to any further relief in relation to the difference between the costs in respect of which the plaintiff will be entitled to be indemnified from the estate and the amount payable by the defendant under the various costs orders. That is not a matter which has been debated before me and is not the subject of any application.
144 For these reasons I make the following orders and declarations: