Re Cameron [1996] QCA 37 (5 March 1996)

Court of Appeal (Qld)|1996-03-05|Before: Before Fitzgerald P, Pincus J, Mackenzie J, Mr J, Fitzgerald P

This is an appeal by the then Crown Solicitor of Queensland against an order made by a Chamber Judge on 16 May 1995 dismissing the appellant's application that the respondent, Donald James Cameron, be declared a vexatious litigant pursuant to s. 3 of the Vexatious Litigants Act 1981. As her Honour noted, to make such a declaration, it was necessary for the court to be satisfied that Mr Cameron "has frequently and without reasonable ground instituted vexatious legal proceedings". Sub-section 2(1) of the Act gives a wide meaning to "legal proceedings" and includes "any proceeding taken in connection with any such legal proceedings pending before any court or tribunal". Her Honour held that, for the purposes of the Act, "legal proceedings" are limited to such proceedings taken in any court or tribunal within the jurisdiction of the State of Queensland and, although that conclusion was challenged in this Court, I am content to assume in Mr Cameron's favour, without deciding that her Honour was correct.

It is also necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court's practices, procedures and rulings, persistent attempts to use the court's processes to circumvent its decisions or other abuse of process, the wastage of public resources, and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis: see, for example, Attorney-General (N.S.W.) v. Wentworth ; Jones v. Skyring ; ; Jones v. Cusack ; , and Attorney-General (N.S.W.) v. West (N.S.W. Common Law Division No. 16208 of 1992, 19 November 1992).

Both parties requested this Court to receive additional information which was not before the Chamber Judge and, in the circumstances, the Court did so. The facts upon which the present appeal falls to be decided are therefore somewhat broader than the issues before the Chamber Judge. However, much of what has occurred can be clearly and easily gleaned from her reasons.

On 27 September 1990, an indictment was presented against Mr Cameron in the District Court at Brisbane charging him with two counts of inducing delivery of a security by false pretences and two counts of obtaining alteration of a security by false pretences. On 19 July 1991, Mr Cameron was convicted on all four counts, two of which related to Custom Credit Corporation Limited, and for those offences he was sentenced to imprisonment for four years. The other two counts related to Westpac Banking Corporation, and for those offences he was sentenced to imprisonment for two years to be served concurrently. On 5 December 1991, the Court of Criminal Appeal allowed his appeal against his convictions in respect of the Westpac counts and he withdrew his application for leave to appeal against sentence. It transpired that, in respect of the Westpac offences, he had been charged under the incorrect section of the Criminal Code because of the definition of "Valuable Security" in s. 1 of the Code. The Director of Prosecutions decided that, in view of the sentences the respondent was required to serve in respect of the Custom Credit offences, there was no sufficient purpose to be served in re-charging him in respect of the Westpac offences under the appropriate section of the Criminal Code.

It is unnecessary for present purposes to discuss in detail the nature of the allegations made against the respondent in respect of his dealings with Westpac or to give further explanation of the reasons why his appeal from his convictions in respect of those offences were allowed. It is plain that the jury must have believed the evidence given against Mr Cameron by the Westpac employees in order to convict him. Further, in the Court of Criminal Appeal, the observation was made that the evidence of those witnesses was "cogent and accords with what one would expect in circumstances like these". The leading judgment in the Court of Criminal Appeal, delivered by McPherson S.P.J., as his Honour then was, stated that, if he had been so indicted, Mr Cameron could properly have been convicted of obtaining credit by false pretences under sub-s. 427(2) of the Code.

Since shortly after that time, Mr Cameron has engaged in what can properly be described as a litigious vendetta against Westpac and its material employees. Details are given in the judgment of the Chamber Judge under appeal and in the judgment of the other members of the Court, and need not be repeated by me. Nothing in the voluminous and largely confused material placed before us gives any indication that there is any basis for the various legal proceedings which Mr Cameron has pursued. He was a bankrupt at the time of his dealings with Custom Credit and Westpac and, if that bankruptcy ever came to an end, a further sequestration order against his estate was made on 21 December 1994 on the basis of legal costs which he had been ordered to pay but had not paid in the course of the various proceedings which he has instituted since the decision of the Court of Criminal Appeal. Shortly stated, there have been writs claiming damages against Westpac, complaints against Westpac, complaints against Westpac employees, disputes as to costs, etc. There have also been Federal Court proceedings, including appeals, largely related to the same matters.

After observing the difficulty that there is in comprehending Mr Cameron's material, which her Honour described as "largely a confused muddle", and his persistent failure to plead any recognisable cause of action in a meaningful way, her Honour said that she did not think it "clear that the proceedings are brought without reasonable grounds", but went on to say that, in any event, she had "concluded that they had not been brought frequently". My firm conclusions are to the contrary.

Additional matters, mentioned in the judgment of the other members of the Court, refer to Mr Cameron's included motion for admission as a barrister and various other motions or cross-applications related to the variety of other proceedings. Although it is not practical to summarise all the various documents and submissions put before the Court by Mr Cameron, the material patently demonstrate his bankruptcy, his criminal record, and the fact that he purports to described himself as the "Director of Legal Services" at the "Beenleigh Community Legal Centre", as well as his frequent unmeritorious claims. I consider it plain that Mr Cameron has abused the process of the court and will, if permitted, continue to do so. I have not the slightest doubt but that he meets the description of a vexatious litigant, and ought to be so declared.

In summary, I allow the appeal and make the declaration sought.

I have read the reasons of Mackenzie J. I am in general agreement with them and in particular concur in his Honour's view as to the meaning of "legal proceedings". That is, I agree that a declaration that a person is a vexatious litigant under the relevant statute cannot be based upon the institution of legal proceedings "frequently and without reasonable ground" in courts other than Queensland courts; but the fact that vexatious proceedings have been instituted in, say, the Federal Court may throw light upon the character of the proceedings in Queensland courts which are relied on as a basis for making a declaration against a litigant.

I should add that, even where it is shown that there is a basis for making a declaration against a litigant under the Vexatious Litigants Act 1981, the Court has the discretion and the institution of vexatious proceedings in courts other than Queensland courts may influence the exercise of that discretion. In the present case, once it is accepted that there is ground for making a declaration, then undoubtedly the Court's discretion must be exercised in favour of doing so. The attitude of the respondent towards the institution of legal proceedings is exemplified by his having come to this Court seeking to be admitted as a barrister, an application which, in the light of the material before us, was ludicrous.

I agree that the orders proposed by Mackenzie J. be made.

This is an appeal against the dismissal on 16 May 1995 of an application under the Vexatious Litigants Act 1981 to have the respondent declared a vexatious litigant. The applicant and the respondent both sought leave to rely on further evidence pursuant to Order 70 rule 10. In the case of the applicant the evidence concerned further proceedings instituted by the respondent since the delivery of judgment. In the case of the respondent it was affidavits, principally for the purpose of setting out extracts of evidence given in an earlier trial which was said to demonstrate perjury on the part of certain officers of Westpac Banking Corporation. In the particular circumstances of the case leave should be given for such evidence to be received. The appeal is by way of rehearing on all of the evidence now admitted (Order 70 rule 1).

The first in the series of legal proceedings instituted by the respondent was a writ claiming damages on the basis that Westpac had by its agents, employees or servants proffered criminal charges of having obtained a Mastercard and a $15,000 personal loan by false pretences. Although it was not specifically particularized in the writ it is apparent from later events that it was alleged that employees of Westpac had committed perjury in the criminal proceedings. The respondent had been convicted of charges of inducing alteration of a valuable security by a false pretence but the convictions were quashed by the Court of Criminal Appeal. The basis of the acquittal was that an account balance was not a "valuable security." While the convictions were quashed, the possibility that he might be charged under s.427(2) on the same facts was left open by the court. The Crown elected not to prosecute under s.427(2) on the basis that no advantage was to be gained by doing so because of the sentences being served. When the writ was taken out the respondent was serving imprisonment of 4 years for offences of false pretences of which he had been convicted in the same trial. On the 27 November 1992 Moynihan J. declared the civil proceedings a nullity because the consent of the Public Trustee to bring the action had not been obtained.

The second was a private prosecution for perjury commenced against Westpac. This was struck out in the Magistrates Court on the basis that a corporation could not commit perjury.

The third were proceedings by way of private complaint alleging perjury by the two Westpac employees and Westpac. These were commenced but struck out because security for costs as ordered had not been provided. It was submitted on behalf of the appellant that because the Director of Public Prosecutions took over later similar private prosecutions against the same parties and found no basis to proceed, it might be doubted that these complaints were instituted on reasonable grounds.

The fourth was an application for an order to review in respect of the decision that the respondent provide security for costs in the proceedings just mentioned. The application was dismissed by Williams J. on 22 January 1993. It was not submitted that these proceedings were vexatious on their face.

The fifth was an appeal against the order of the magistrate dismissing the private complaints referred to above for failure to comply with the order to provide security for costs. It was submitted that this appeal was commenced without reasonable grounds because the respondent had unsuccessfully appealed against the order to provide security for costs. The appeal was dismissed by Derrington J. on 4 February 1993.

The sixth were further complaints against the Westpac employees for the same cause. It was submitted that these proceedings were an abuse of process because a previous prosecution upon identical grounds had been dismissed for failure to give security for costs. It was submitted that the respondent had sought to avoid this order by instituting new proceedings upon the same grounds. The Director of Public Prosecutions elected to take over the prosecution of these complaints and after investigation elected not to further prosecute them.

The seventh was an action in the Federal Court in Brisbane against Westpac for damages arising out of the charges brought against the respondent by Westpac. On the 28 June 1994 the action was struck out by Drummond J. as disclosing no reasonable cause of action. Drummond J. said that the core of the respondent's case was that the officers gave false testimony to the police, to a committing magistrate and ultimately to a jury which resulted in what the respondent said was a wrongful conviction. Drummond J. applied the principle in Cabassi v. Vila [1940] HCA 41; (1940) 64 C.L.R. 130 in dismissing the action. He also referred to the principle stated by Dawson J. in Giannarelli v. Wraith (1988) 165 C.L.R. 543, 595.

The eighth was another action brought against Westpac for damages arising out of the charges brought by it. It was submitted that this was clearly an abuse of process as it merely sought to relitigate the proceedings struck out by Drummond J. On 8 September 1994 O'Loughlin J. stayed the action on the basis that it raised the same issues as had been raised in the proceeding before Drummond J.

The ninth were appeals against the decisions of Drummond J. and O'Loughlin J. It was submitted that in view of the express concession in the Full Court of the Federal Court by the respondent that Cabassi v. Vila was an insuperable obstacle to his succeeding the appeals were brought without reasonable grounds. The appeals were dismissed on the 17 November 1994.

The tenth is an action for damages for "negligence traspass" (sic). Particulars given were that Westpac provided to the Criminal Investigation Branch unprivileged reports of alleged criminal fraud on the part of the respondent and that those reports caused him to be deprived of his liberty. It was submitted that the action is legally unsustainable. On the 13 January 1995 it was stayed by Fryberg J. until outstanding costs orders had been satisfied.

The eleventh was a motion in the action just referred to. The respondent neither served the motion nor attended at the hearing before Dowsett J. who dismissed it with costs. The respondent informed us that he was ill on the return date of the motion.

The twelfth was an appeal against a sequestration order made in the Federal Court by Kiefel J. On 26 April 1995 the Full Federal Court dismissed the appeal. The bankruptcy notice was founded upon non-payment of costs awarded in this series of litigation.

The thirteenth was a cross-summons filed on the occasion of the hearing of the Crown Solicitor's application, for an order that his application be dismissed as vexatious. This summons was dismissed by White J., as it was bound to be.

To make a declaration that a person is a vexatious litigant it is necessary that the court be satisfied that the person has instituted vexatious legal proceedings and has done so frequently and without reasonable grounds. To dispose of this matter it is not necessary to finally decide all the propositions advanced by Mr McKenna about the extent of the court's power to declare a person vexatious. However one of his submissions was that proceedings in courts other than Queensland courts could be regarded as "legal proceedings" for the purpose of determining whether a person had frequently and without reasonable grounds instituted legal proceedings. It was conceded that a consequence of this argument was that the Supreme Court might make a declaration, for example, in a case where a person had instituted numerous proceedings in the Federal Court or the courts of other States without reasonable grounds and it was apprehended that he was likely to commence actions in Queensland. We do not accept this proposition. The jurisdiction given by the Vexatious Litigants Act is a protective jurisdiction and it is the frequency of the proceedings brought without reasonable grounds in Queensland courts which enlivens it. However once the elements of frequency and lack of reasonable grounds are established it is legitimate, in a case where it is necessary, to have regard to the fact that groundless proceedings have been brought in other jurisdictions and what their outcome was to aid in establishing that proceedings brought in Queensland are vexatious. It may be, as Toohey J. thought in Jones v. Skyring [1992] HCA 39; (1992) 66 A.L.J.R. 810, 813, that the requirement that proceedings be vexatious in addition to being "without reasonable grounds" is tautologous in most practical situations. However in determining the question of fact whether proceedings instituted in Queensland courts are in fact vexatious (In re Vernazza (1960) 1.Q.B. 197) the fact that such proceedings are cumulative upon those commenced in another jurisdiction may strengthen the conclusion that the proceedings are vexatious if that is in dispute.

The material before us on appeal shows that by the time the second action in the Supreme Court (the action for negligent trespass) was commenced two actions has been commenced and dismissed in the Federal Court as disclosing no reasonable cause of action. It is not insignificant that the Supreme Court action was commenced the day after the respondent had lost appeals against the dismissal of the actions in the Federal Court. This Supreme Court action was stayed until costs incurred on previous occasions had been paid. Further the additional material shows that within a fortnight of the dismissal of the summons to have him declared a vexatious litigant, the respondent had issued further proceedings in the Supreme Court for damages arising out of the same events notwithstanding White J.'s warning that any attempt to circumvent Fryberg J.'s stay order "by issuing other process concerning the Westpac charges would clearly be an abuse of process and liable to be struck out." An examination of the particulars in the writ shows that it was brought against Westpac on the basis of vicarious liability of Westpac for the conduct of its employees who were alleged to have, in concert, brought about the prosecution by making "representations" which were known to be false, which were made recklessly, or which were made negligently. This was alleged to give rise to a claim for damages for instituting legal process without reasonable and probable cause and under the Trade Practices Act. The respondent also sought compensation for loss of liberty and damages for loss of contractual income.

The new proceedings represented an attempt to formulate the action in a different way but the claim still rested on the allegation that the information given to the police and the evidence given to the court was incorrect and that such circumstances established a good cause of action for the consequences of his prosecution. Once again, as drafted it is difficult to discern any basis upon which the action might have been successful. Nothing in the respondent's submissions before us altered this impression. These proceedings were dismissed by consent on 22 June 1995. The plaintiff also undertook not to issue any proceedings in any court in respect of the matters the subject of the action for negligent trespass which had previously been stayed by Fryberg J.

It was not the case that the undertaking given to Fryberg J. indicated an intention to desist from all further litigation of the consequences of the prosecutions. At the present hearing, the respondent sought to move for leave under s.686 of the Criminal Code to prosecute a named Westpac employee for offences against s.126 (fabricating evidence), s.489 (uttering false documents), s.494 (making documents without authority) and s.123 (perjury). The supporting material shows that it is a further attempt to litigate the same events that underlie the previous abortive proceedings.

He also sought to move for admission as a barrister. The material exhibited does not establish any basis upon which he might be admitted under the rules relating to admission. On the contrary, it highlights his long history of criminal conduct, especially for offences of fraud and dishonesty.

The analysis above shows that in various ways, all of which have been unsuccessful for a variety of reasons, the respondent has attempted to bring proceedings without reasonable grounds against Westpac and its officers for various remedies in respect of the criminal proceedings brought against the respondent. The attempts in Queensland Courts have been frequent and without reasonable grounds. The combination of frequency and persistence, notwithstanding the lack of any substantial basis for the proceedings, is vexatious.

The appeal is allowed with costs and a declaration is made that the respondent is a vexatious litigant.

Vexatious Litigants Act 1981

At a glance

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Judgment (33 paragraphs)

Legislation Cited (1)