1. This proceeding is a request for all documents relating to the PPB review. Work cover ordered the PPB investigation. Mr Smeaton says that the investigators conducting the review were supposed to get all relevant documents from WorkCover. He suspects that they did not.
2. He believes that over 50% of the documents which are relevant are still available but have not been handed over.
3. The review is now at an end. Mr Smeaton is hopeful that if he obtains the documents sought in this application that he will be able to persuade the present government to reconstitute the review.
4. The request on this file is very broad, and I would expect that for this reason it may be opposed by the respondent. The matter is not far enough advanced for me to know what the respondents' attitude to the application may be. And it is again not clear to what extent the application is a duplication of material already requested.

1. This is an application in respect of all of the files and internal communications between Allianz (a VWA claims agent) and the VWA in relation to Sue Smeaton's claim. He identifies eight employees of Allianz to whom this request relates. He asserts that Allianz were not only "keeping VWA in the loop" but were receiving direct instructions from VWA. He claims that these documents will show Allianz has engaged in fraud by fabricating medical opinions and phone calls regarding his wife's claim.
2. He claims that the chief executive officer of Allianz wished to keep this from the board of the company and did not investigate the allegations. He claims that the false information about these matters was sent by Allianz to VWA.
3. Mr Smeaton wishes to see documents relating to meetings and agendas in relation to the Allianz' communications regarding Mr Smeaton. He wishes that to hand these documents over to PPB so it can finish this job.
4. The particular focus of this application is the Authority's conduct of conciliations. He asserts that the Authority has told injured workers they can't have solicitors present at a conciliation and he believes these documents will show that the Authority is misrepresenting the nature of conciliation under the relevant legislation.
5. I suspect that this is a duplication of a previous application but it has not been described in these terms in Mr Jones affidavit.

1. This is a FOI application against the Transport Accident Commission.
2. It relates to Mrs Smeaton having initially been contacted and advised that she was entitled to interest on her weekly payments, and then contacted again to be told no interest was in fact payable.
3. Mr Smeaton seeks access to any documents created by TAC or received by TAC in relation to this issue. TAC has objected to the production of these documents on the grounds of legal professional privilege.
4. This does not appear to be a duplication of a previous application, but I cannot say so with certainty as I have not reviewed each one of the completed files.

1. The respondent to this FOI application is Centltex. As I understand it, Centlex is an entity which at the relevant time provided IT support and expertise to various government agencies, including VWA and TAC. Mr Smeaton seeks from Centltex much the same information as he has sought against the VWA and TAC in the other applications he has issued. As I understand it he takes the view that Cenltex may be more able to interrogate the IT systems of these organisations and locate backup records.
2. Mr Smeaton also seeks emails from the relevant minister's office to Cenltex relating to the review. He wants to obtain these documents and show them to the present Minister in an attempt to persuade the minister that the review should be reinstated.
3. In his view this application raises fundamental questions about the Westminster system.
4. This also does not appear to be a duplication of a previous application, but again I cannot say so with certainty.

1. This is a FOI application seeking the full PPB report. He has been provided with a redacted copy of the report but he wants to receive an unedited copy of it.
2. Mr Smeaton originally directed this request to the Department of Premier and Cabinet who referred it on to WorkSafe.
3. In his request he says this:

To assist you in identifying the document I seek I have attached a copy of the full report. The form I seek is a written document. I note the Authority has already made a copy of the document available to me under a confidentiality agreement, made a determination and certified that the form of access in which it was provided to me is a form that the Authority believes would have been provided had the document been released pursuant to an FOI application. I draw your attention to the requirement of section 21 of the FOI act that requires an agency to make a decision as soon as practical.

1. The Freedom of Information Commissioner affirmed the decision of the Authority to redact the report. It did so on the basis that it would be unreasonable to release information relating to the personal affairs other than those of the first respondent and that there was no public interest in the under restricted release of that information.
2. I am not able to say if this is a duplication of a previous application.

1. There is nothing on this file which assists me to understand the subject matter of this application. However from the submissions of both parties in this hearing before me, I understand that this is an FOI application in respect of the documents generated by the TAC in respect of a successful claim to the TAC by Rocca Salcedo. He has ascertained that Rocca Salcedo was granted funding for family carers by the Transport Accident Commission.
2. He wants to obtain all the details of this case because he wants to compare it with the way VWA has treated his similar claim.
3. This does not appear to be a duplication of a previous file.

1. This is an FOI application in which Mr Smeaton requests all the documents provided to KPMG when it carried out its investigation.
2. He claims that there has been destruction of documents or concealment of documents, particularly those generated by CGU which I understand is also a VWA claims agent. He says it is critical that he obtains these documents in order to be able to conduct a mediation with the Minister of the day.
3. I am not able to say whether this request is a duplication of a previous file.

1. This is a FOI application against the Data Protection Commissioner. It relates to the conduct of a proposed conciliation.
2. Mr Smeaton has formed the view that Sue Smeaton's personal information is not been appropriately handled and is not accurate complete or up-to-date. He wishes to have confirmation from WorkSafe that he and his wife's personal information is intact on WorkSafe's backup system and to ensure that WorkSafe stores emails containing his and his wife's personal information on his wife's Trim file.
3. He also seeks that Worksafe provide to the Data Protection Commissioner a complete list of documents it holds relating to his wife's case.
4. This does not appear to be a duplication of a previous file.

1. This is a complaint to the Data Protection Commissioner in respect of 46 KPMG files. Mr Smeaton said that the Data Protection Commissioner has asked him to make this application.
2. He said that KPMG are retaining these files as their own documents and he requires them for the purpose of conducting his mediation.

1. Mr Smeaton also identifies three more files. These are not referred to Mr Jones's affidavit.
2. They are as follows.

1. Mr Smeaton describes this application as being in respect of 46 files of information previously concealed from past FOI requests.
2. The reference to 46 files comes from his assertion that the persons carrying out the PPB review advised Mr Smeaton that they thought KPMG held 46 files as well as work papers relating to the investigation encompassed in the PPP review.
3. This appears to come out of paragraph 172 of the PPB report. That paragraph reads as follows:

Not provided access to the KPMG work papers to assess the completeness of the documents provided to VWA and its agents. We understand that there are 46 files held by KPMG relating to their engagement.

1. Smeaton describes the files as being "falsely held at KPMG in order to avoid his FOI request".
2. This appears from the way in which Anthony Smeaton has described it to be a duplication of a previous application, but I am unable to be certain about this.

1. In his application on this file Mr Smeaton states his reasons for making this application as follows:

PPB advisory in October 2015 report identifies WorkSafe destroyed all backup tapes pre-2007... There are some FOI matters on hold at VCAT for emails from months within these years. In order to try rescue information destroyed by WorkSafe's pre-2007 backup tape destruction, I made an FOI request for UXC storage mediums. UXC WorkSafe's IT contractor may have transferred data from backup tapes onto disk from these years as U XC could not access information for WorkSafe direct from tapes. If such data exists VCAT can order searches, determine release or not of email, rather than rejecting release by destruction.

1. Although the wording of this paragraph is difficult to follow, as I understand it he asks that VCAT make an order that any decision by the VWA that could result in allowing UXC or Worksafe to destroy any storage of pre 2007 data still on storage devices be stayed. This is in order to address his concerns about material being deleted which is subject to one or other of the 12 pending files he has at VCAT.
2. Mr Smeaton also identifies another Data Privacy Commissioner matter H186 of 2006 but does not give any details regarding it.
3. This also appears to be at least in part a duplication of previous applications, but I am unable to be certain about this.

My conclusion as to the merits of the pending proceedings

1. It is very difficult to draw any conclusions about the merits of these remaining proceedings. I am not sure that my summary above of these proceedings is accurate in every respect. It is particularly difficult because Mr Smeaton is not legally qualified and is unable to identify the precise causes of action and how they differ from the previous applications he has made.
2. This disadvantage is made even greater by the fact that none of the respondents to these pending cases have been joined to this proceeding or have given evidence before me.
3. Some of the issues raised in these pending proceedings have clearly been raised in some form in other proceedings decided in this Tribunal. Counsel for the Tribunal says is that it is clear from the past history that what Mr Smeaton is trying to do is to have the Tribunal revisit matters which have already been resolved. He invites me to characterise these matters as repeated unmeritorious attempts to relitigate.
4. Without having heard from any of the respondents to this remaining litigation I am unable to be sure about this in relation to most of the pending matters I have identified.
5. I am conscious that on many occasions Mr Smeaton has displayed a conspiratorial approach to litigation. He told me that everything that had happened to his wife must have generated relevant emails and documents. He says that he has already obtained a lot of information which was previously missing by way of his FOI applications, and that he has uncovered significant concealment by the VWA.
6. His applications seem to be motivated by a complete unwillingness to accept that the documents he is looking for may well not exist. He does not appear to have seriously considered that this may be the outcome of his efforts. Mr Smeaton is sure that there is a "smoking gun" in many of these documents and that his task is to find it.
7. I am in the position of having to assess the merits of these applications simply on what I have been told in the case before me. There is almost nothing in the Tribunal files relating to these applications, as each file is at a preliminary stage of being processed. As I have said, I have not heard anything at all from the respondents as to the merits of these applications.
8. It is not within the scope of this hearing for me to determine all of these matters on their merits as if those matters were before me for a final hearing.
9. Given all of these matters, there are only two of these applications where I am able to be completely satisfied that the application is clearly a duplication of a matter previously decided by the Tribunal. There are proceedings Z406/16 and Z407/16.
10. I make no finding on the merits of the other pending proceedings.

What is an Extended Litigation Restraint Order?

1. This Tribunal may make an extended litigation restraint order if it is satisfied that either or both of the respondents have frequently commenced or conducted vexatious proceedings against a person or other entity or in relation to a matter. In making such a determination, the Tribunal may take into account any matter it considers relevant, including but not limited to proceedings commenced or conducted by that person in any Australian Court or Tribunal, any other orders made against that person, and any other matter relating to the way in which the person conducts or has conducted litigation.
2. If such an order is made then, depending on the precise terms of the order, the person affected is not permitted to either continue an existing proceeding in this Tribunal or commence a fresh proceeding in this Tribunal, unless it first obtains leave of the Tribunal.
3. This is a very significant restriction on a party's right to access the Tribunal, and although strictly speaking it does not prevent access to the Tribunal but just provides an extra filter to litigation by a person subject to such an order, I accept that this is a very significant step to take and should not be taken lightly.
4. Mr Smeaton submitted to me passionately that the making of such an order would be devastating to himself and his wife. He said that this was because it would mark them both forever as vexatious people. He was extremely concerned that this would be a stain on their character.
5. In his extensive answering material, Mr Smeaton has been at pains to emphasise the fact that he and his wife have brought each one of these eighty applications in good faith. In his statement he says this:

I never tried to achieve an outcome I felt was absolutely and completely unattainable, or without hope or chance of success. I did not use arguments so obviously groundless that they would be utterly hopeless, or baseless just to be annoying. If I became enlightened I would seek leave to withdraw, to try not to abuse the system. I never brought a review with the sole objective to harass, annoy and embarrass a person, or an entity. I believed at all times I had reasonable grounds and merit for review. However, just as lawyers fail on occasion due to error, transient lapses of judgement or mistakes, I am guilty of such types of failure also.

1. Mr Smeaton referred in his submissions to Julian Knight, a notorious criminal whose name has been prominent in applications of this nature under previous legislation.
2. I can understand Mr Smeaton's concern not to be linked with such a character, but wish to reassure him that no such stain on his character is suggested in this case.
3. This is because the making of such an order in this case does not suggest moral culpability or any lack of truthfulness or trustworthiness on the part of the person to whom it is directed. Counsel representing the Tribunal made it plain that although the word "vexatious" in the Act has a broad definition, (including actions taken to harass or annoy or for other wrongful purposes, part of which implies intentional wrongdoing,) no reliance at all was placed by the applicant on those aspects of the definition in this case.
4. Thus, when making a decision as to whether Mr and Mrs Smeaton have issued vexatious proceedings, I must determine whether Mr and Mrs Smeaton have issued proceedings that are an abuse of the process of the Tribunal, in the sense that they are not appropriate for the Tribunal to hear, or whether they are proceedings commenced or pursued without reasonable grounds. I accept that there is no suggestion at all in this case that either of the respondents have commenced proceedings in order to harass or annoy to cause delay or detriment, or for any other wrongful purpose.

1. In order for this application to succeed, I must be satisfied that Mr and Mrs Smeaton have each frequently commenced or conducted vexatious proceedings against a person or other entity, or in relation to a matter.
2. It is important to note that the section gives me a discretion to make an order. I am not required to make an order, even if all the preconditions to the exercise of power under section 17 are proven. In exercising that discretion I must take into account all the circumstances surrounding the litigation in which Mr and Mrs Smeaton have been engaged.
3. In coming to my conclusion as to whether Mr and Mrs Smeaton, or either of them, have issued vexatious proceedings I may take into account the proceedings conducted or commenced by the Smeatons against each one of the bodies that I have described in these reasons, as well as the proceedings against any particular body.
4. To illustrate this, in deciding whether the Smeatons have frequently commenced or conducted vexatious proceedings against the Transport Accident Commission, I can take into account the fact that the Smeatons have commenced proceedings against the VWA, in relation to the same or similar issues.
5. The legislation also tells me that I may also take into account "any other matter relating to the way in which Mr and Mrs Smeaton conducts or have conducted litigation". This does not have to be in relation to any particular one of the bodies that I have identified, but appears to give me the right to look at the conduct of litigation by Mr and Mrs Smeaton generally.
6. The Act defines a proceeding to include any matter issued within the jurisdiction of an Australian tribunal, so each one of the applications which have been set out in Mr Jones affidavit are proceedings for the purpose of this act.
7. Finally the Act defines a vexatious proceeding in several ways. As I've already said some parts of this definition are not relied upon in this application. The only parts of the definition relied on are paragraph A, which defines a vexatious proceeding as a proceeding that is an abuse of process of a court or tribunal, and paragraph C, which includes in that definition a proceeding commenced or pursued without reasonable grounds.
8. Apart from this, there is nothing else in the Act which guides the exercise of my discretion under section 17.
9. Although the Vexatious Proceedings Act is very recent legislation, there is a great deal of authority both in Victoria and interstate concerning some of the concepts which I must apply in considering this application.
10. In the case of Altaranesi to which I have already referred, it was made clear that the purpose of such an application is not to punish but to protect the public and the Court, and particularly to protect the financial and administrative resources of the court.
11. It was also made clear that the level of insight of a litigant into his previous litigation history is relevant. The relevance is that it may throw light on whether the commencement by that person of further vexatious proceedings is likely.

1. The applicant contends that the Smeatons have "frequently" issued vexatious proceedings.
2. I was referred to Viavattene v Attorney General (NSW) 2015NSWCA44 for discussion of that term as it appears in similar NSW legislation.
3. It was made clear in that case that the term "frequently" is a relative term which must be looked at in context of the litigation being considered - and in the context of the specific facts of each case. For example, in Viavattene the Court expressed the view that an individual litigant instituting 14 separate Supreme Court actions in 11 years could be described as frequent given that most people in the community never institute proceedings at all.
4. So, litigation may be said to be engaged in frequently even though the number of separate pieces of litigation is small.
5. As was said by the New Zealand Court of Appeal in Brogden v Attorney General NZCA208 quoted at paragraph 21 of Altanerisi:

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

1. At paragraph 49 of Viavattene it was suggested that it was important not to simply rely on an arithmetical calculation. This is because there may be the same issue litigated with different file numbers or file numbers may be interrelated. It would be inappropriate to consider that proceedings were instituted "frequently" where that frequency occurred as a result of administrative duplication.
2. Even so, I think it is incontrovertible that in normal circumstances the issue of eighty proceedings in ten years satisfies the normal grammatical use of the word 'frequent." There are not many litigants in this Tribunal who have issued such a significant volume of proceedings - perhaps none at all.
3. However, that is not the end of it. I need to consider the word frequency in the context of the facts of this case.
4. In doing so I take into account that these applications are almost exclusively applications under the Freedom of Information Act. They are not in the same category as other litigation.
5. This is because the whole justification of the Freedom of Information Act is very broad. In section 3 of the Act the object is described as being "to extend as far as possible the right of the community to access to information in the position of the Government of Victoria and other bodies constituted under law of Victoria for certain public purposes by:
   • (a) making available to the public information about the operation of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices, and
   • (b) creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interest and the private and business affairs of persons in respect of whom information is collected and held by agencies.
6. Subparagraph 2 of section 3 provides this:

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

1. This are extremely wide-ranging concepts. The legislation is designed to achieve openness and transparency in government. A person does not need to have the individual interest which characterises most other types of litigation. Access by anyone to government information is the hallmark of this Act.
2. The Act makes this right of access very clear. It says this:

Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:

(a) a document of an agency, other than an exempt document, or

(b) an official document of a Minister, other than an exempt document.

1. It is notorious that the Act is used very frequently by particular persons in the community in order to achieve political ends. Members of parliament and journalists for instance are very frequent users of this legislation.
2. The concept of frequency is thus different in an FOI context than if I was looking at frequently issued individual pieces of litigation in a common law setting.
3. Overall, however, even taking all of these matters into account, the volume of applications is very large. On average, the Tribunal has heard and dismissed 2 to 3 applications from the Smeatons every year for the last 10 years.
4. I am well satisfied after considering all of the above matters that Mr and Mrs Smeaton have frequently issued proceedings in this Tribunal.
5. Before leaving this topic, I indicate that I have dealt with Mr and Mrs Smeaton interchangeably. I am aware that the volume of applications issued in Mr Smeaton's name is small. However he has been so intricately involved in those applications bearing his wife's name that I do not believe it sensible to draw any distinction between the frequency of proceedings issued by him in his name alone, and the frequency of proceedings issued by him in his wife's name.
6. As I have outlined previously, the word vexatious in the context of this case involves a finding that the proceedings issued have been an abuse of process or issued without reasonable grounds.
7. I now go on to discuss these concepts.

1. The applicant contended that the issue of proceeding by the Smeatons was an abuse of process.
2. The High Court considered the concept of abuse of process in Batistatos v Roads and Traffic Authority of NSW[1].
3. The Court said this:

Central to the tort of abuse of process is a requirement that a party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers.

1. The concept was also considered by the New South Wales Supreme Court in Alteranesi, where at paragraph 18 the court said this:

What amounts to abuse of process is not susceptible to a formulation comprised of closed categories. But an abuse of process can be defined inclusively. The concept includes the pursuit of proceedings that have no prospects of success or no real prospect of resulting in a remedy of substance but which involved unjustified expense or use usual resources, the pursuit of current proceedings for substantially the same relief, all of the pursuit of proceedings after a remedial defeat in previous proceedings, the determination to persist in futile appeal in the face of repeated judicial observations that arguments were doomed to failure, and causing others to incur legal costs in responding to hopeless applications in circumstances where the defendant has disregarded cost orders already made against him.

1. In that case there is also a reminder that the question of whether or not proceedings are vexatious should be gauged objectively, and not from the perspective of the litigant said to be vexatious. This approach protects courts from litigants who are genuinely but misguidedly persuaded as to the correctness of their own conduct.

1. The applicants also contended that the Smeatons had issued applications without reasonable grounds.
2. Although this question is of course relevant to every one of the applications the Smeatons have issued, it must also be looked at in the light of the Smeatons' conduct generally in issuing such a large number of interrelated applications.
3. The question in this case is therefore not just whether Mr Smeaton has inappropriately exercised his rights without reasonable grounds on each individual occasion, but whether in his use of the Act he has by the very volume and subject matter of applications commenced be said to have acted without reasonable grounds.
4. Smeaton argued that it was that it was never his or his wife's intention to make never-ending freedom of information applications. He said that they had planned simply to obtain the documents which they had identified as being vital in order to achieve success should the various authorities agree to participate in a mediation.

1. There is a common theme to many of the Smeatons' applications. They seem to be directed to achieve the same result in respect of the same documents or series of documents. Applications have been issued even after issues relating to the production of those documents have been resolved by the Tribunal against the Smeatons.
2. Many examples of this are set out in Jones affidavit. Mr Smeaton appears on several occasions to have acted on the misunderstanding that it is not the role of one VCAT member to reopen issues which have already been ventilated before another member and resolved against Mr Smeaton.
3. At paragraph 76 of Viavattene the Court considered the word vexatious.
4. The court said this:

But all courts are bound by well-established principles of res judicata and issue estoppel, and it is vexatious for Mr Viavattene to continue to bring proceedings inconsistent with numerous decisions of courts on this issue. His doing so, repeatedly over the last four years, enlivens the power under the Vexatious Proceedings Act and warrants its exercise.

1. Mr Smeaton has presented an almost overwhelming number of documents which he says are relevant to my determination. This is the same pattern which he has used in addressing each one of the matters issued by him and his wife in the Tribunal. He has filed 6 lever arch files full of material for this hearing. This is in addition to the three volumes of decisions and other relevant material filed on behalf of the applicant. It has taken a great deal of time to read this material, and to marry it up with the material on the Tribunal files.
2. It is almost impossible to absorb the detail of all of this material. I cannot say that I have been successful in doing so completely. The temptation, which I have I hope avoided, is to make adverse findings because of the avalanche of material, without coming to grips with the issues contained in that material.
3. On the other hand, it cannot be that in order to make a decision I must in effect make a finding on the merits of each one of the outstanding matters I have identified above. Mr Smeaton urged me to do so. I reject that invitation.
4. In so far as there have been matters that have proceeded to a decision, it is not my role to look behind those decisions and orders.
5. Indeed I do not understand Mr Smeaton suggesting that I should do so. What he said was that the previous orders were procured by misleading evidence given to the Tribunal.
6. He has sought to bring duplicate proceedings in order to correct what he sees as being errors. He has openly said that he has done so because he cannot afford the cost of the appeal to the Supreme Court or any other form of investigation into that misleading or fraudulent behaviour.
7. He argued that this could not be seen to be vexatious because as it was trying to use the Tribunal to correct orders which were made under a misapprehension.
8. He said that he had genuinely believed that another Member could change an order if he could demonstrate to that Member that the order was procured by fraud.
9. For example in proceeding number 916 of 2009 he said that he initiated that proceeding in order to have a basis to correct the Ombudsman's report. He thought that that proceeding would allow him to use the power under the Freedom of Information Act to correct a document. In fact he was not successful in persuading DP MacNamara (as he then was) of the correctness of that argument. He said that he and his wife didn't take it any further when they found out the Ombudsman's report is "untouchable."
10. When DP Macnamara ruled against them they didn't issue anything else on that issue. Smeaton submitted that their purpose is not to waste people's time but that they tried their best to comply with difficult legislation and that everyone, even lawyers, made mistakes from time to time.
11. He further submitted that they were doing their best to correct the record and to get the rules and policy of the VWA updated in the public interest because those rules and policy had failed in their own case and they expected that it would have failed in other cases is well.
12. As I have already said, in considering these matters the Smeatons' subjective intention is not relevant. It is not their subjective opinion about whether the proceedings are justly brought which I must focus on. I must look at the content of the applications themselves.
13. Even taking into account the explanations given by Mr Smeaton, there remains a long history of unwarranted litigation initiated and maintained by the Smeatons in this Tribunal in circumstances where Mr Smeaton does not appear to have taken any notice of the repeated observations by Tribunal members as to the lack of merit in that litigation.
14. This is clearly set out at paragraphs 12 through to 205 of Jones affidavit. There was no effective rebuttal by Mr Smeaton to any of the material contained in those paragraphs. I accept Jones evidence as an accurate description of the course of those proceedings, and I also accept that those proceedings are appropriately described as both an abuse of process and issued without reasonable grounds within the terms of the Vexatious Proceedings Act.
15. Although none of the respondents to the Smeatons' many applications joined in the application before me, it is self-evident that the issue of such a large number of proceedings must have caused cost and inconvenience to those organisations. This is a matter which I am entitled to take into account when considering whether to exercise my discretion to make the order sought.
16. I also have no evidence of future harm to VCAT itself if the order were not to be made. However, it is also self-evident that the repeated issue of applications regarding the same subject matter has a large impact on any Court or Tribunal. This is also a matter which I am entitled to take into account in exercising my discretion.
17. During the course of the hearing, Mr Smeaton emphasised that there are only a limited number of proceedings left to be decided. He asserted that he had no intention of issuing any further proceedings in the Tribunal. He wish simply to have those 12 matters decided and then his quest would be at an end.
18. Although I accept Mr Smeaton's bona fides in making this assertion, which he was prepared to be treated as an undertaking, I think it is clear from the past history which I've set out in these reasons that it is unlikely that the Smeatons will desist from making any further applications. It seems to me that Mr Smeaton truly believes that he will find the smoking gun in the documents which he seeks. He also truly believes that each one of these applications is unarguable.
19. If he does not find his smoking gun, I think it most likely that he will continue to issue further proceedings in this Tribunal, and this will cause cost and inconvenience to those parties to which those applications are directed, and also to the Tribunal itself.
20. For all of the reasons set out above I am satisfied that Mr and Mrs Smeaton have in the past conducted vexatious proceedings against the persons described in these reasons, and that it is appropriate to make an extended litigation order against them.
21. The history of the Smeatons' proceedings is well described by words used by Curtain J in Attorney General for the State of Victoria v Moran 2008 the SC159 at paragraph 51 where she observes.
22. The proceedings, whether they be by writ, appeal or the laying of private informations have been variously described by the respective courts as misconceived, hopeless, without prospect of success, vexatious and an abuse of process. It is not that Mr Moran has shown an inability to accept the finality of the decision which has gone against him but rather his response to an adverse decision is to institute further proceedings where there is no prospect of success and where the true purpose of the proceedings is ultimately to relitigate issues concerning the repossession of Clarks Hill and presumably to continue to relitigate those issues until the property has been restored to him or he is compensated for its loss.
23. Mr Smeaton urged me not to make this order against Sue Smeaton. He is concerned that it may add to her mental trauma. Unfortunately I cannot see any way to avoid doing so. The fact is that most of the applications have been issued in her name. To make an order only against Anthony Smeaton would not achieve the result which I found appropriate.

1. The making of the extended litigation restraint order does not conclude the matter.
2. I must also determine whether or not to make an order restraining the Smeatons from continuing to litigate the remaining proceedings which I have identified. I have a discretion as to whether or not to do so. In exercising that discretion I need to look at each individual matter, and not simply make a blanket order which applies to each one of the files without discrimination.
3. This approach coincides with that taken in Viavattene where it was suggested that one of the primary functions in considering a vexatious proceeding application is to consider each individual proceeding and whether that proceeding should be stayed.
4. In Viavattene itself at paragraph 79 the following comment occurs:

It is also unnecessary to express a view on the ability, in an appropriate case, to make a blanket order under the Vexatious Proceedings Act. However it would seem desirable in most, if not all cases to consider whether provision should be made carving out certain categories of proceedings which may be instituted without leave.

1. Given the obscure way in which the remaining proceedings have been described in the material before me I am not able to be satisfied that they are completely without merit.
2. It is not possible to say conclusively that a freedom of information application will be unsuccessful simply because it concerns the same subject matter as a previous freedom of information application. The previous application may have failed on procedural grounds not relevant to the new application. Without making a final determination about each of the pending proceedings it is not possible for me to be certain. It is a serious matter to deprive a litigant of access to this Tribunal. Before doing so I must be able to be satisfied that none of these matters has any chance of success.
3. In this respect I also note that none of the respondents to the pending applications sought to be joined in this proceeding. One of the matters which I am entitled to take into account is the inconvenience to a respondent of multiple proceedings. The lack of submissions from the respondents to those 12 proceedings is of importance here. There is no evidence at all that any of the respondents to these applications have suffered unwarranted loss or disruption as a result of these applications - apart from the obvious cost of having to defend these proceedings.
4. I am hesitant to unilaterally stay these proceedings in the absence of submissions by the respondents, where I have necessarily not got a complete picture of those applications.
5. It is true that the extended restraint order will not completely debar any of these claims. It will mean that the Smeatons must apply to the Tribunal for leave to proceed with each of them. However, the practical utility of such a course is dubious.
6. I therefore do not think it appropriate to exercise my discretion to stay each one of these proceedings. I take that the view that proceedings Z406/ 2016 and Z407/2016 are both doomed to failure, as each are seeking relief which has already been granted by the Tribunal. As I have not been presented with sufficient information in relation to the other extant proceedings I do not propose to exercise my discretion to stay those applications.
7. This means that Mr and Mrs Smeaton will be free to continue with those applications to conclusion.
8. I note here and apply the old but surely still appropriate observation in Cox and Journeaux (no 2) (1935) 52 CLR at p 720 cited in Walton and Gardner 177 CLR 378 at page 415:

The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure, a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permitted to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.

1. It should only be in a clear case that my power to stay the proceedings should be exercised. Clearly I should do so if the application under consideration is just a duplication of an issue which has already been heard and determined. Clearly also, I should not stay an application just because its prospects of success may be "slender" to use the language of Cox v Journeaux.

The Charter of Human Rights and Responsibilities Act 2006

1. Mr Smeaton has raised the Charter in his submissions. He says that the manipulation and concealment which he alleges has been undertaken by the VWA is inconsistent with the Charter in various ways.
2. He says it is relevant to his right under the Charter to protect his reputation. He says that concealment is inconsistent with his Charter right of freedom of expression.
3. He says that the bringing of these proceedings under the Vexatious Proceedings Act 2014 has the effect of silencing him and so affects his right to take part in public life. He says that he and his wife have worked hard through this litigation to give back to society and in doing so are exercising their right to participate in public life. He says that if an order is made by me under this legislation then he would not have the capacity to pursue the other Charter rights which are relevant to his applications against the VWA and that further his right to participate in public life, and to have access to justice will be extinguished.
4. He also makes this argument in respect of his Charter right to a fair trial.
5. I agree that the human rights of Mr and Mrs Smeaton to have a fair trial and to participate in public life are engaged by this application.
6. However this is an inevitable result of the legislation before me. I accept that I have an obligation so far as it is possible to do so consistently with its purpose, to interpret the legislation in a way that is compatible with human rights.
7. The legislation itself provides for a means by which the rights engaged are balanced with the objects of the legislation, so as to constitute such reasonable limits as can be demonstrate demonstrably justified in a free and democratic society based on human dignity equality and freedom, and taking into account all of the factors set out in section 7 (2) of the Charter.
8. I have identified those issues in coming to my conclusions. Of particular importance is the facility provided under the Act for a person the subject of an extended restraint order to apply for leave to commence proceedings in individual case, and for also the entitlement under section 65 to seek a variation. By these means the Smeatons' rights under the Charter are in my view adequately protected in the circumstances of this case.

1. I have indicated that I am satisfied under section 17 of the Vexatious Proceedings Act 2014 that Anthony Smeaton and Sue Smeaton are frequently commenced or conducted vexatious proceedings against each one of the parties I have identified in these reasons. I am satisfied that it is appropriate to exercise my discretion to make Anthony Smeaton and Sue Smeaton subject to an extended litigation restraint order under section 17 of the Act.
2. I am also satisfied that it is appropriate to restrain each of them from commencing any further proceedings in the Tribunal against any of the bodies named in these reasons.
3. I then need to consider the length of time for which this order will operate. I do not consider that it needs to be a lengthy order. I propose to order that it remain in force for a period of five years from today's date.
4. I must then consider whether to exercise my discretion to make orders in relation to the pending proceedings.
5. I am positively satisfied that proceedings number Z406 of 2016 and Z407 of 2016 are unmeritorious. I will make an order that those proceedings be dismissed under section 24(2) of the Vexatious Proceedings Act 2014.
6. Given that I am not able to be satisfied about the merit of the balance of the current proceedings, I do not propose to make any further order affecting the right of the Smeatons to proceed with those applications.

[1] (2006) HCA 27