Von Reisner v Commonwealth of Australia

4. The Applicants to pay the costs of the Second Respondent of and incidental to these proceedings including any reserved costs.

2 As appears hereunder, the appeal is limited to order 2. The first respondent ('the Commonwealth') has filed a submitting appearance save as to costs, and the second respondent ('the State') opposes the grant of any relief. At the conclusion of the appeal on 27 May 2009 the Court granted the appeal, set aside order 2 of the orders of the primary judge made on 31 March 2008, reserved its reasons for judgment and reserved its determination as to costs. The reasons for making such orders and the Court's determination as to costs are set out hereunder.

FACTS 3 The appellant, Ms von Reisner, commenced the proceedings arising out of her claim that asbestos exists in premises occupied by her at Unit 26/14 Wauhope Crescent, South Coogee and other places within the same housing complex. Such premises are owned by the New South Wales Land & Housing Corporation ('the Housing Corporation'). In the proceedings the applicants were described as Koidu von Reisner and Sally Raad. The present appeal from those proceedings is being conducted by only one appellant, namely Ms von Reisner. 4 On 13 September 2007 the State filed a Notice of Motion and accompanying affidavit of Tracey Jane Emanuel sworn on 10 September 2007 seeking an order for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) or alternatively an order that the proceedings be dismissed pursuant to O 20 r 5 of the Federal Court Rules ('the Rules'). On 14 September 2007, the Commonwealth filed a Notice of Motion supported by an affidavit of Gregory George Kathner sworn on 14 September 2007 seeking similar orders. 5 The Notices of Motion came before the primary judge on 30 November 2007. On this date the appellant informed the Court that she wished to amend her Statement of Claim. The primary judge granted leave to Ms von Reisner to file an Amended Application and any Amended Statement of Claim by 5 pm on 29 February 2008. His Honour also granted leave to the State to file in Court an Amended Notice of Motion relying on the affidavit of Tracey Jane Emanuel in relation to the original motion. His Honour ordered that the proceedings be adjourned until 10 March 2008. 6 On 10 March 2008 the appellant informed his Honour that she had not been able to amend the pleadings for a variety of reasons. The appellant also indicated that she wished to provide documents to Legal Aid and to obtain the opinion of a Legal Aid barrister. His Honour acceded to such request and ordered that the appellant file and serve any Amended Application and any Amended Statement of Claim on or before 25 March 2008. His Honour said that if the orders requiring the appellant to amend her claim were not satisfied, his Honour intended to strike out the proceedings and 'probably make an order that no further proceedings be commenced without the leave of the Court'. His Honour also ordered the respondents to file and serve any Notice of Motion on or before 28 March 2008. His Honour adjourned the proceedings to 31 March 2008. 7 On 31 March 2008 the proceedings again came before his Honour. No Amended Application or Amended Statement of Claim had been filed. However, the appellant produced and sought to rely upon a proposed further pleading. His Honour formed the opinion that the pleading was not an amendment, but instead constituted a fresh proceeding. Accordingly, his Honour did not permit the appellant to rely upon the proposed pleading. 8 His Honour observed that when the matter was previously before him on 10 March 2008 he indicated that he would hear any motion 'opposing the grant of leave to amend and those motions also would encompass the fate of the proceedings which the respondents say have already been dismissed'. The Commonwealth was granted leave to file a Notice of Motion and an affidavit sworn by George Robert Curtis on 31 March 2008. His Honour also granted leave to the State to file a Notice of Motion and an affidavit of Tracey Jane Emanuel sworn on 27 March 2008. Both Notices of Motion sought orders that the appellant not commence any proceedings without the leave of the Court. 9 His Honour proceeded to deal instanter with the Notices of Motion of the Commonwealth and of the State and concluded by making an ex tempore judgment and the orders set out in [1] of this judgment.

APPLICATION FOR LEAVE TO APPEAL 10 The appellant then instituted proceedings NSD 626 of 2008, namely this appeal. On 17 June 2008 Branson J granted leave to the appellant to appeal order 2 of the orders of the primary judge made on 31 March 2008 and extended the time within which to file and serve the appeal. However, Branson J dismissed the appellant's application for leave to appeal in respect of all other grounds. Accordingly, on 8 August 2008 the appellant filed a Notice of Appeal seeking an order that order 2 made on 31 March 2008 be set aside, and for costs. 11 The Appellant also sought, in a Notice of Motion filed on 12 May 2009, to vacate this hearing to provide more time to prepare for the appeal. As will become apparent, it is unnecessary to consider the motion in view of the Court's finding.

PRIOR LITIGATION 12 Although not referred to in the primary judge's decision, his Honour had affidavits before him providing evidence of prior litigation instituted by the appellant. Prior to the commencement of the proceedings, the appellant instituted proceedings in the Supreme Court of New South Wales, Equity Division. Those proceedings came on before Windeyer J on 9 June 2006. In those proceedings the appellant sought an order that the Housing Corporation undertake various works at her residence, including the decontamination and removal of all asbestos particles. Windeyer J observed that the respondent consented to such orders. However, the appellant opposed the making of them. 13 The Supreme Court proceedings came before Brereton J in the Supreme Court of New South Wales, Equity Division on 3 November 2006. The judgment of his Honour in NSW Land & Housing Corporation v von Reisner [2006] NSWSC 1500 reveals that the Housing Corporation had attempted to carry out the necessary work at the appellant's premises but she had refused to allow access for the work to be carried out. His Honour noted at [3] of his judgment: From that point, the 2005 proceedings assumed a bizarre course. From those orders, which had been made in her favour on her own summons, Ms von Reisner sought leave to appeal to the Court of Appeal, and a stay of the orders made by Windeyer J. On 17 July 2006, Beazley JA refused the application for a stay, fundamentally on the basis that Ms von Reisner came to court seeking the orders which were granted, and in those circumstances it was inappropriate now to grant a stay application. Ms von Reisner sought a review of Beazley JA's orders, and the application for a review was dismissed on 25 September 2006. So far as I can tell, no application for leave to appeal has been disposed of by the Court of Appeal.

14 Brereton J referred to the fact that the Housing Corporation had filed a summons seeking orders permitting its contractors and workmen to enter the premises of the appellant to perform the work. Such application was opposed by the appellant. His Honour declined the relief sought by the Housing Corporation and simultaneously set aside the orders made by Windeyer J on 9 June 2006. 15 Brereton J observed at [14]: Ms Von Reisner has made it clear that she does not now want the Housing Corporation to do that work. The situation is one in which, by her conduct, Ms Von Reisner has illustrated that those proceedings are an abuse of process because, by her conduct, she has made manifest that she does not want the relief claimed in them. It necessarily follows that she is not prosecuting them genuinely for the relief claimed in them, and that they are therefore an abuse of process. In those circumstances it seems to me that it is quite inappropriate that the 2005 proceedings remain on foot.

Brereton J ordered the proceedings in the Supreme Court of New South Wales, Equity Division, be dismissed. 16 In the proceedings before the primary judge there was also evidence that the appellant had instituted approximately 20 proceedings in other jurisdictions claiming similar relief to that claimed in the proceedings.

Vexatious Litigants Order 17 Order 21 of the Rulesmakes provision for declaring a person to be a vexatious litigant. When the primary judge made order 2 the relevant wording of O 21 r 1 provided: (1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:

(a) that any proceeding instituted by the person may not be continued without leave of the Court; and

(b) that the person may not institute a proceeding without leave of the Court.

(b) on the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or

18 It is to be observed that O 21 r 1(2) was amended with effect from 2 August 2008 and now provides: (2) An order under this rule may be made:

(a) on the application of a person against whom the person mentioned in subrule (1) has instituted or conducted vexatious proceedings; or

(b) on the application of a person who has sufficient interest in the matter; or

(d) on the application of the Attorney-General of the Commonwealth or of a State or Territory; or

19 The relevant wording of O 21 r 2 provided: Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable ground institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by him without leave of the Court.

20 It is not apparent whether order 2 was made under O 21 r 1 or O 21 r 2. The order did not state which Rule was relied upon, nor does the transcript identify which Rule was applied. 21 The text of order 2 is identical to that found in the Notices of Motion filed by the respondents and was made following their submissions on their Notices of Motion. Further, when asked by Ms von Reisner to amend order 2 to grant her a right to appeal, his Honour said, 'We will change order 2, subject to what Mr Curtis and Mr Turnbull say'. The inference can be drawn that the primary judge was making the order pursuant to the Notices of Motion, and not upon the Court's own motion. 22 Whether order 2 of the primary judge's decision was made under O 21 r 1 or O 21 r 2, there were two insurmountable obstacles to the making of the order. 23 The first obstacle lies in the failure of the respondents to file an Application seeking such order. Order 21 rule 3 of the Rules provides: Application

A person seeking an order under rule 1 or rule 2 shall proceed by application.

No such Application was made in the proceedings. Rather, the order was sought by the respondents by means of a Notice of Motion. As explained by Logan J in Rogers v Asset Loan Co Pty Ltd (ACN 107 746 798) and Others (2009) 250 ALR 82 at [48]-[50], the correct procedure to seek an order under O 21 r 1 and 2 is to apply in a separate proceedings by Application. Therefore, order 2 was not made pursuant to the Rules. 24 The Court is mindful that it is a serious matter to impede access to the Court to seek remedies. In Ramsey v Skyring (1999) 164 ALR 378 Sackville J referred to the observations of Kirby J of the consequences of depriving a member of the public access to courts as being a 'serious thing' and described the remedy under s 84 of the Supreme Court Act 1970 (NSW) as being an 'extreme remedy' (see 484). 25 In this case, not only did each of the respondents proceed by a notice of motion instead of commencing the proceedings by an originating application, but each of the notices of motion were filed in Court on the same day as they were heard. The appellant did not have an adequate opportunity to know the case against her and did not have a reasonable opportunity to defend the claims made by the respondents. She was denied natural justice. This ground alone is sufficient to determine the appeal in the appellant's favour. 26 The second obstacle lies in the failure of the primary judge to make the factual findings which must be made as a condition precedent to the making of order 2. In his Honour's judgment there was no reference to the vexatious nature of the proceedings, nor any reference to the requirement of both O 21 r 1 and of O 21 r 2 of the Rules that the litigant 'habitually and persistently and without reasonable grounds' institutes or instituted proceedings other than the following statement: It is considered that the proposed application in the present proceedings raises issues which are frivolous or vexatious or unarguable.

27 As a precondition to the making of order 2, it was necessary for the Court to find that the applicant satisfied the definition of a vexatious litigant. In Slater v Higgins and Another (2001) 110 FCR 593 at [34]-[35] the Court observed that in that proceeding the bringing forward of hopeless matters was sufficient to satisfy the definition of vexatious litigant. In Attorney-General v Wentworth (1988) 14 NSWLR 481 the Court considered the meaning of 'vexatious' (see page 487 and following). At 491 Roden J summarised the applicable principles as follows: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

4. In order to fall within the terms of s 84 [Supreme Court Act 1970 (NSW)]:

(a) proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);

(b) the proceedings must have been "habitually and persistently" instituted by the litigant.

28 At 492 Roden J concluded that the institution of proceedings is not, of itself, sufficient to render them vexatious. He referred to the decision of Ormerod LJ in Re Vernazza [1960] 1 QB 197 at 208 where his Lordship observed: … the question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious.

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.

Notice of Motion 37 As to the Notice of Motion seeking to vacate the hearing date, the findings of the Court make a consideration of Ms von Reisner's request unnecessary. For this reason, the Notice of Motion to vacate the hearing date is dismissed.

Costs 38 By order dated 27 May 2009 Ms von Reisner was granted 14 days to file and serve submissions in respect of her costs in the matter. No submissions were filed by the due date. Ms von Reisner telephoned the Registry on 12 June 2009 to inform the Registry that she had accidentally deleted her submissions from her computer and requested that she be able to file them by the following Tuesday (June 16). Such request was granted but no submissions were filed by that date. On the 22 June 2009 Ms von Reisner forwarded a fax to the Registry requesting an extra week to file and serve her submissions. On 7 July 2009 the Court granted Ms von Reisner an extension of time until 14 July to file and serve her submissions on costs. No submissions were received by 14 July 2009. On 31 July 2009 Ms von Reisner faxed a letter to the Registry stating that illness had affected her ability to file and serve submissions within the time limits and informing the Registry that she would file her complete submissions by 4 August 2009. Such letter included information in the nature of provisional submissions. 39 On the afternoon of 19 August 2009 Ms von Reisner lodged her submissions as to costs with the Registry. The Court will adjourn the proceedings to enable it and the respondents to consider the submissions and to enable the respondents to file and submissions in reply. For this purpose, the Court will allow the respondents a period of 14 days from today for the filing and service of submissions. Otherwise the Court reserves its decision in relation to costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Siopis, Cowdroy and Reeves.

Associate: Dated: 20 August 2009 Counsel for the Appellant: The appellant appeared in person