29 As to whether proceedings needed to be instituted 'frequently' in order to constitute vexatious proceedings, Roden J did not attempt to make a definition of 'universal application' (see page 492).
30 Further, in the judgment, the primary judge did not refer to prior proceedings which had been instituted in the Supreme Court of New South Wales. Nor was there any mention of prior proceedings on the transcript recording the hearing of the motions immediately before the judgment. If the primary judge was proceeding under O 21 r 1 it was incumbent upon him to identify the prior proceedings he was relying upon to make the order and to make the necessary factual findings to satisfy the requirements set out in that order. He failed to do so and thereby erred.
31 If the primary judge was proceeding under O 21 r 2, that order requires that the person said to be a vexatious litigant has 'habitually, and persistently and without any reasonable ground' instituted a vexatious proceeding 'in the Court', that is, the Federal Court of Australia. As already mentioned, the primary judge did not make any factual findings to support a conclusion that the appellant has 'habitually and persistently' instituted a vexatious proceeding 'in the Court.' Only one proceeding (aside from this appeal) has been instituted in this Court by Ms von Reisner and there has been leave granted on two occasions by his Honour to amend the pleadings in the proceedings. These circumstances would not, without more, permit the making of the findings required by O 21 r 2.
32 The State submitted that in accordance with the principles in House v The King (1936) 55 CLR 499, order 2 resulted from a proper exercise of judicial discretion and there was no error demonstrated in the exercise of that discretion. The State also submits that his Honour had not acted on a wrong principle, nor had he considered extraneous or irrelevant matters in determining to make order 2.
33 Such submissions cannot be sustained in view of the fact that the wrong procedure was adopted by the Commonwealth and State in seeking a vexatious litigant order and the decision to make order 2 was made in the absence of any factual findings that the appellant satisfied the criteria of O 21 r 2 of the Rules. The Court's exercise of discretion also miscarried when no opportunity was afforded to the appellant to consider or respond to the charge made against her that she was a vexatious litigant. The applications to have Ms von Reisner declared a vexatious litigant were unusual in that each was made returnable instanter. As a consequence, neither Ms von Reisner, nor the Court, was afforded a real opportunity to consider the implication of the formidable requirements for the making of such an order.
34 The State also refers to the decision of the High Court of Australia in Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Another (1981) 148 CLR 170 and particularly to the majority judgment at page 178 thereof in which the Court found that the primary judge's determination had been made bona fide, was supported by evidence and that there was no basis for the claim that the primary judge had failed to give proper consideration to the question before him. Very different considerations apply in the appeal before this Court, for the reasons already stated.
35 We note that a further obstacle to the primary judge making order 2, by reference to O 21 r 1, is that the parties who moved the motion were not those mentioned in O 21 r 1(2)(b) and r 1(2)(c).
36 For the reasons set out above the Court upholds the appeal in respect of the making of order 2 and sets aside that order.