3.2 What is a "vexatious proceeding"?
11 Section 37AM(1) of the FCA Act defines "vexatious proceeding" to include:
(a) a proceeding that is an abuse of the process of a court or tribunal; and
(b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and
(d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
12 These categories substantially overlap, as Adamson J pointed out in Attorney-General (NSW) v Chan [2011] NSWSC 1315 (Chan) at [33] with respect to the equivalent provision in the Vexatious Proceedings Act 2008 (NSW) (the NSW Act).
13 As to s 37AM(1), it has recently been said that "[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues": Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at 265 [9] (Gleeson CJ, Gummow, Hayne and Crennan JJ). Nonetheless, certain categories of abuse of process are well settled. As McHugh J observed in Rogers v The Queen (1994) 181 CLR 251 (Rogers) at 286 (in dissent but not on the issue of principle):
Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.
14 As his Honour then observed, any procedural step taken in the course of proceedings is capable of being an abuse of the court's process: ibid.
15 To similar effect, Gaudron J explained in Ridgeway v The Queen (1995) 184 CLR 19 at 74-75 that:
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are "frivolous, vexatious or oppressive". This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to "defined and closed categories" because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of "abuse of process" is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment".
16 I note that Basten JA in Viavattene v Attorney-General (NSW) [2015] NSWCA 44 (Viavattene) at [19] raised a question as to whether ss 6(b) and 6(d) of the NSW Act, which are equivalent to ss 37AM(1)(b) and 37AM(1)(d) of Part VAAA of the FCA Act, require a subjective element of improper purpose and queried whether an objectively demonstrated outcome without that further element would suffice. In her separate reasons at [3]-[4], Beazley P did not consider that this was necessarily the correct construction of s 6(d) and pointed to two decisions where para (d) had been construed as not requiring the Court to determine whether the defendant in proceedings under the NSW Act subjectively intended to act in such a way as to "harass or annoy, cause delay or detriment, or to achieve another wrongful purpose", namely, Pascoe v Liprini [2011] NSWSC 1484 at [10] (Adamson J) and Attorney-General v Tareq Altaranesi [2013] NSWSC 63 at [20] (Slattery J). In any event, her Honour considered at [4] that:
…if an intentional element is involved, intention may be inferred from the objective facts. I would only add that there may also be a question whether the descriptor in s 6(d) that describes proceedings conducted in a way so as to "achieve another wrongful purpose" requires an intentional element.
17 However the construction of s 6(d) was not raised on the appeal and neither Beazley P nor Basten JA therefore considered that this was an appropriate occasion on which to determine the question: Viavattene at [5] (Beazley P) and [20] (Basten JA). Nor is it necessary for me to determine it here as, for the reasons developed below, on any view Mr Croker has instituted and conducted proceedings which constitute an abuse of process and are therefore caught by s 37AM(1)(a) of the FCA Act. A classic example is Mr Croker's attempts to relitigate issues already determined in earlier proceedings.
18 Turning then to what constitutes a "proceeding", the term is defined in s 4 of the FCA Act to mean "a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal". This means, as Adamson J pointed out in Chan at [34], [67] and [70], that the Court may have regard to baseless applications or appeals or repeated oral applications with no proper basis. It follows, that an application for an extension of time within which to appeal or seek leave to appeal, being for example incidental proceedings in connexion with a proceeding, would constitute a "proceeding", as would, for example, an application for the issue of a subpoena.
19 Furthermore, the word "institute" as defined in s 37AM(1)(a) includes "for civil proceedings - the taking of a step or the making of an application that may be necessary before proceedings can be started against a party". A request for a bankruptcy notice to be issued by the Official Receiver is an example of the taking of a step necessary before proceedings in a court may be started against the debtor by way of a creditor's petition, as I held in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [103]. A further example of such a step is Mr Croker's request, as an undischarged bankrupt, for the consent of the Trustee in Bankruptcy to file the application for special leave to appeal to the High Court in the ex gratia payments proceedings: see at [200] below. Furthermore, as the Registrar submits, the reference in s 37AO(1) to conducting proceedings permits the Court to have regard to the way in which proceedings are carried on after they have been instituted irrespective of whether or not they were regularly and appropriately commenced.
20 Finally, in determining whether the criteria in s 37AO(1) are satisfied, I am not limited to considering the decisions of the Federal Court but may have regard under s 37AO(6) to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
21 In this regard, as Adamson J said in Chan at [39]:
While the Court needs to form its own view about each piece of litigation relied on… the Court is entitled to have regard to the result of the proceedings, and where appropriate, the findings of, and views expressed by, the various judicial officers who dealt with them: [Attorney-General (NSW) v] Wilson [[2010] NSWSC 1008] at [22]; Attorney General v Croker [2010] NSWSC 942 at [125]; Attorney General v Gargan at [7].
22 As such, it is appropriate among other things for me to have regard to the decision in Attorney-General (NSW) v Croker [2010] NSWSC 942 (Croker (NSWSC)) in which Fullerton J determined that it was appropriate to make a vexatious proceedings order pursuant to s 8(7)(b) of the NSW Act against Mr Croker. That order prevented Mr Croker from instituting proceedings in New South Wales other than by leave of an appropriate court under the NSW Act. An application for leave to appeal from that decision was dismissed with costs by the Court of Appeal on the grounds that nothing raised by Mr Croker cast any doubt on the decision and there was no basis for considering that there is any prospect of success in the appeal: Croker v Attorney-General (NSW) [2010] NSWCA 355 (Allsop ACJ (as his Honour then was) and McColl JA).