Watiwat v Dixon

Supreme Court of NSW|2017-08-18|Before: Robb J

Judgment

The plaintiff in this case is Mr Bienvenido Watiwat. The first defendant is Mr Stephen Dixon, who was the trustee in bankruptcy of Mr Watiwat's wife, Mrs Bernadita Watiwat. The second and third defendants were each involved in the administration of Mrs Watiwat's bankruptcy. The fourth defendant was the petitioning creditor who instigated Mrs Watiwat's bankruptcy.
Mr Dixon commenced proceedings against Mr Watiwat in 2012 to obtain an order pursuant to s 66G of the Conveyancing Act 1919 (NSW) for the sale of property held jointly by Mr and Mrs Watiwat. Mr Dixon was successful in his application and the property was sold.
Mr Watiwat commenced these proceedings by way of a summons filed on 18 October 2016. Amongst other things, he sought orders that the s 66G proceedings were a malicious prosecution, and that the first, second and third defendants engaged in unconscionable conduct, abused their authority, misrepresented debts, colluded with the fourth defendant, and stole trust money.
On 1 December 2016, Registrar Walton ordered Mr Watiwat to file and serve a statement of claim. Mr Watiwat filed a statement of claim on the same day, having been advised by the defendants that he would likely be required to do so. The defendants filed their defence on 23 December 2016.
On 1 February 2017, the defendants filed a notice of motion seeking an order that the proceedings be dismissed pursuant to rule 29.9 of the Uniform Civil Procedure Rules.
On 9 February 2017, the defendants sought leave to amend their notice of motion to instead seek an order that Mr Watiwat's statement of claim be struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules. Registrar Walton gave the defendants leave to amend their notice of motion, and ordered Mr Watiwat to file an amended statement of claim by 5 PM on 10 February 2017.
Mr Watiwat filed an amended statement of claim on that date.
On 29 March 2017, Ward CJ in Eq struck out Mr Watiwat's amended statement of claim and gave him leave to file a further amended statement of claim that complies with the rules by 10 May 2017. The matter came before Ward CJ in Eq again on 20 April 2017. On that date, her Honour referred the matter to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. She noted that the referral was solely for the preparation of a compliant further amended statement of claim.

Question 1

The first question was: should Mr Watiwat be given leave to file a further amended statement of claim? I answered 'No' to this question for two reasons. The first is that Mr Watiwat's further amended statement of claim could have been struck out for the same reasons that his original amended statement of claim was struck out on 29 March 2017. The second is that, even where it is possible to discern the meaning of his claim, it discloses no reasonable cause of action. I will now explain what the court expects of a statement of claim and why Mr Watiwat's further amended statement of claim falls short of the court's expectations.
Ward CJ in Eq set out the principles relevant to pleadings in her 29 March 2017 judgment in these proceedings: see Watiwat v Dixon [2017] NSWSC 360 at [15]-[22]. I respectfully adopt her Honour's statement of the relevant principles and make the following additional observations.
A statement of claim contains two components. The first is called 'RELIEF CLAIMED'. This is where the plaintiff tells the court what orders they want. Mr Watiwat, for example, sought an order that the defendants pay him $4,131,889.01. There was nothing wrong with this claim for relief. The court has the power to order one person to pay money to another person. If Mr Watiwat had been able to prove that the defendants owed him $4,131,889.01 then the court would have ordered the defendants to pay him the money.
The second component of a statement of claim is called 'PLEADINGS AND PARTICULARS'. This is where the plaintiff sets out the facts that prove that they are entitled to the relief that they have claimed. This involves pleading the facts that establish what the defendants did in a way that makes out the elements of a cause of action (the plaintiff must state the facts that establish their right to sue the defendants and win). It also involves pleading the facts that establish the damage that the plaintiff has suffered as a result of the conduct of the defendants (the plaintiff must give precise detail of the loss that they have suffered and why it was caused by the defendants' conduct).
Usually the plaintiff pleads the facts that establish what the defendant did before pleading the facts of their own loss. Mr Watiwat pleaded his case the other way around. The first thing he addressed was the make-up of the $4,131,889.01 in damages. In keeping with the structure of the statement of claim, I will address damages before each of the causes of action.

Damages

Mr Watiwat broke up his claim for $4,131,889.01 in the following way: Claim Amount Replacement Property Current Market Value Est. Average $2,000,000.00 Interest (01 Dec 2016) - 30 June 2017 $130,416.01 Court Fees - Suspended Fees $1,078.00 Court Fees - Defence Motion to Strike Out Pleadings $395.00 Forced Bankruptcy - Plaintiff $500,000 Forced Bankruptcy - Wife $500,000 Loss of Income - Plaintiff $500,000 Loss of Company - Plaintiff $500,000 TOTAL $4,131,889.01

None of these amounts was appropriately pleaded or particularised. In respect of the claim for $2,000,000, Mr Watiwat sought this amount to cover the loss of his house on the basis that the average value of property in Sydney had been 'reported on television recently as $2,000,000'. To claim damages in respect of loss of property it is necessary claim a specific amount based upon evidence of the value of the property itself. Mr Watiwat's estimate of $2,000,000 based upon a television report of the average Sydney house price falls far short of this requirement.
The $500,000 that Mr Watiwat claimed for 'Forced Bankruptcy - Plaintiff' related to his own bankruptcy, which followed that of his wife. Mr Watiwat said: 'It is hard to ascertain the true value of the loss but for the sake of this statement of claim the plaintiff has estimated the amount for closure'. The $500,000 that Mr Watiwat claimed for 'Forced Bankruptcy - Wife' related to the breakdown of his marriage. Neither of these claims appears to be based upon any actual loss suffered by Mr Watiwat. It is not clear from the statement of claim how Mr Watiwat intended to prove that his own bankruptcy and the breakdown of his marriage were the fault of any of his wife's trustees in bankruptcy or the petitioning creditor in her bankruptcy.
The $500,000 in respect of each of 'Loss of Income - Plaintiff' and 'Loss of Company - Plaintiff' refer to the effects of Mr Watiwat himself also becoming bankrupt, to the extent that his becoming bankrupt has prevented him from working as a bookkeeper and acting as a director of his own company. Mr Watiwat said that he earned $75,000 in 2010 but apart from that did not further particularise each of the $500,000 claims. To claim loss related to earnings it is necessary to claim a specific amount based upon evidence of an estimate of future earnings. Mr Watiwat's two claims for $500,000 fall far short of this requirement. It is again unclear how Mr Watiwat intended to prove that his loss of earnings was the fault of any of the four defendants.

Causes of action

Apart from the claim for interest and court fees, Mr Watiwat attributed each of the claims to the unconscionable conduct of the defendants. He then split what he referred to as 'unconscionable conduct' into four groups: malicious prosecution, 'targeting a person of disadvantage special', abuse of fiduciary duties and theft of trust monies. I will address each group in turn.

Malicious prosecution

Mr Watiwat claimed that each of the defendants had maliciously prosecuted the s 66G proceedings in 2012. There are several problems with this claim. The first is that not all of the defendants prosecuted the s 66G proceedings. Mr Dixon was the only one of the defendants who was a party to those proceedings. The second problem is that the claim could not possibly meet the requirements of the tort of malicious prosecution.
As noted at [45] by Ward CJ in Eq in her earlier judgment in these proceedings , the elements of the tort of malicious prosecution are that: 1. The defendant initiated proceedings (generally criminal in nature) against the plaintiff. 2. The proceedings terminated in favour of the plaintiff 3. The defendant acted maliciously. 4. The defendant acted without reasonable and probable cause.
Mr Watiwat could not possibly succeed in his malicious prosecution claim because the s 66G proceedings did not terminate in his favour. A plaintiff must be able to show that the defendant sued them and lost before he or she can sue the defendant for malicious prosecution. It is the winner of a case who may sue the loser for malicious prosecution. It does not work the other way around. For this reason, Mr Watiwat's claim for malicious prosecution is doomed to fail. To the extent that his further amended statement of claim contains a claim for malicious prosecution, it discloses no reasonable cause of action.

'Targeting a person of a disadvantage special'

Mr Watiwat claimed that the fourth defendant, the petitioning creditor in his wife's bankruptcy, had engaged in unconscionable conduct by 'targeting a person of a disadvantage special'. The meaning of his claim is so unclear that the defendants could not possibly be expected to respond to it. He appears to state that both he and his wife are persons of special disadvantage because of their old age, indebtedness, and inability to afford a lawyer. And he appears to claim that the fourth defendant acted unconscionably by commencing the bankruptcy proceedings, approving the trustee's report to creditors, and approving the remuneration of the trustee. But he does not link the two together. He does not state how these actions were unconscionable or how they involved taking advantage - in an impermissible way - of either him or his wife.
As I explained above, the 'PLEADINGS AND PARTICULARS' part of a statement of claim is where the plaintiff tells the court and the defendant what the defendant has done and why it was illegal. Neither the court nor the fourth defendant can tell from Mr Watiwat's claim exactly what it is that he says the fourth defendant did or why it was unconscionable. For this reason, were I to allow it to be filed, the defendants would be entitled to have it struck out under rule 14.28(1)(a) of the Uniform Civil Procedure Rules on the basis that it does not disclose a 'reasonable cause of action'.
Furthermore, the claim is brought by Mr Watiwat against the fourth defendant but the conduct complained of is conduct in relation to the bankruptcy of Mrs Watiwat. If the fourth defendant acted unconscionably towards Mrs Watiwat then it is Mrs Watiwat that has standing to sue the fourth defendant. Mr Watiwat cannot sue the fourth defendant in her place. For these reasons, Mr Watiwat's claim against the fourth defendant discloses no reasonable cause of action.

Theft of trust monies

Mr Watiwat's claim under the heading 'Theft of Trust Monies' appears to be that the trustees of his wife's bankruptcy paid themselves more than they were supposed to out of her estate and the proceeds of sale of the property. Like the earlier claims it is not pleaded in a way that makes it plain to the court or the defendants exactly what Mr Watiwat alleges the defendants to have done. Furthermore, Mr Watiwat again does not have standing to make the claim. If the trustee in Mrs Watiwat's bankruptcy misappropriated funds it is her and her creditors that have standing to sue to recover those funds. For these reasons, Mr Watiwat's claim in respect of 'Theft of Trust Monies' discloses no reasonable cause of action.

Abuse of fiduciary duties

Mr Watiwat's claim under the heading of 'Abuse of Fiduciary Duties' does not state who owes the fiduciary duty, to whom the alleged fiduciary duty is owed, or how it was abused. Mr Watiwat states that 'from the very start, the bankruptcy trustees engaged in deceitful manner' and appears to take issue with a number of the debts that the trustee established were owed by his wife. The claim is not pleaded in a way that makes it clear what Mr Watiwat alleges the defendants to have done or how it constitutes a breach of duty. Furthermore, like the previous two claims, Mr Watiwat does not have standing to sue the trustee in respect of its administration of his wife's bankruptcy. For these reasons, Mr Watiwat's claim in respect of 'Abuse of Fiduciary Duties' discloses no reasonable cause of action.

Conclusion

I have concluded that none of Mr Watiwat's claims disclose a reasonable cause of action. He cannot sue the trustee for malicious prosecution of the s 66G proceedings because he did not win those proceedings. He cannot sue the trustee in respect of the administration of his wife's bankrupt estate because he does not have standing to do so. The only person who can sue the trustee in respect of his conduct towards Mrs Watiwat is Mrs Watiwat. If Mr Watiwat was allowed to file this statement of claim then the defendants would be entitled to have it struck out. If the defendants did not apply to strike it out then Mr Watiwat would be bound to lose the case and most likely be ordered to pay the defendants' costs. This is why I have decided not to allow Mr Watiwat to file his further amended statement of claim.

Question 2

The second question was: should the defendants be given leave to amend their notice of motion dated 24 July 2017? As I explained in the introduction, the defendants' original notice of motion sought an order that the proceedings be dismissed pursuant to rule 29.9 of the Uniform Civil Procedure Rules. This is the rule that empowers the court to dismiss proceedings on the basis that 'on the evidence given, a judgment for the plaintiff could not be supported'. The defendants sought leave to amend their notice of motion at the hearing to instead seek an order that the proceedings be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules. This is the rule that empowers the court to dismiss proceedings that disclose no reasonable cause of action, are frivolous or vexatious, or are otherwise an abuse of process. The defendants also sought to add to their notice of motion a request for an order that Mr Watiwat may not bring fresh proceedings in relation to the same or substantially the same causes of action without the leave of the court.
The defendants gave Mr Watiwat notice that they intended to seek leave to amend their notice of motion on or about 10 August 2017. This was just over a week before the hearing. Mr Watiwat did not provide to the court any reasons why the defendants should not be allowed to amend the notice of motion. In consideration of the fact that Mr Watiwat knew that the defendants were seeking to have his claim summarily dismissed, and of the fact that he was provided with notice of their intention to change the basis upon which they sought to dismiss his claim, it is appropriate to grant the defendants leave to amend their notice of motion.

Question 3

The third question was: should the proceedings be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules? As noted above, this rule empowers the court to dismiss proceedings that disclose no reasonable cause of action. Mr Watiwat has failed to draft a statement of claim that discloses a reasonable cause of action and for that reason I refused to give him leave to file his further amended statement of claim. Registrar Walton ordered that the matter proceed by way of pleadings on 1 December 2016. Her order deprived the summons that Mr Watiwat filed on 18 October 2016 from having any further effect. Mr Watiwat was required to file a statement of claim and failed to do so. There is therefore no operative originating process on file in this matter.
It follows from the explanation that I have given above, that in finding that the draft statement of claim does not disclose a reasonable cause of action I have gone further than finding that it does not comply with the rules governing proper pleadings, but may be consistent with Mr Watiwat having an undisclosed pleadable claim against the defendants, or some of them. The effect of my analysis is to conclude in a positive sense that, for the reasons given, the claims that Mr Watiwat seeks to make are not sustainable as a matter of law. The defendants' claim for an order dismissing the proceedings must be dealt with not simply on the basis that the draft statement of claim does not disclose a reasonable cause of action, but on the basis that the draft pleading and the history of these proceedings justify a conclusion that Mr Watiwat has not demonstrated that he has any claims that have any prospects of succeeding against any of the defendants at all. It is therefore appropriate to dismiss the proceedings.

Question 4

The fourth question was: should an order be made barring Mr Watiwat from bringing fresh proceedings in relation to the same or substantially the same causes of action without the leave of the court? The defendants have sought this order because the summary dismissal of these proceedings does not prevent Mr Watiwat from bringing fresh proceedings or claiming the same relief in fresh proceedings: Civil Procedure Act 2005 (NSW) s 91. The defendants are clearly concerned that he may sue them again, again fail to draft a properly pleaded statement of claim, and again cause them to seek to have the statement of claim struck out or the proceedings dismissed.
These are valid concerns but they must be weighed up against Mr Watiwat's entitlement as a citizen to institute proceedings. Mr Watiwat has not shown himself to be a vexatious litigant to the extent that it would be appropriate to make a broad order prohibiting him from instituting proceedings under the Vexatious Proceedings Act 2008 (NSW) (Vexatious Proceedings Act). So far as I can tell, he has been involved in three sets of proceedings in New South Wales. The first were the s 66G proceedings. The second were proceedings commenced by the trustees for sale of the property to obtain a writ for possession and levy of the property. The third were these proceedings.
The defendants in this case have not sought that a vexatious litigant order be made against Mr Watiwat pursuant to s 8 of the Vexatious Proceedings Act. They have sought a more limited order that he not be permitted to commence fresh proceedings in relation to the same or substantially the same causes of action as these proceedings without the leave of the court. Counsel for the defendants submitted that the court could make this order in exercise of its inherent power to prevent an abuse of process, but did not provide any authority to support the proposition that the court has power to prevent a person from commencing fresh proceedings without recourse to the Vexatious Proceedings Act. I have found that the law in relation to the scope of the inherent power of a court to prevent an abuse of its processes is not settled in this regard.
The High Court considered the inherent power of a court of bar a person from commencing fresh proceedings in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17 (Inglis). In that case, the applicant applied for an order pursuant to the inherent jurisdiction of the High Court that no legal proceedings should be instituted or applications in existing proceedings made or appeals lodged by the respondents without the leave of a judge of the court. Barwick CJ and McTiernan J held at 318 that the court had the power to prevent the respondents from making applications within the course of proceedings but did not have the power to prevent the respondents from instituting fresh proceedings. Their honours based their decision upon: (a) being unable to find any reported cases of a court purporting to exercise its inherent power to prevent an abuse of its own processes by barring a person from instituting proceedings; and (b) the notion that legislation would not have been introduced to deal with vexatious litigants if courts inherently already had the power to do so.
Inglis is the highest authority in Australia on the ability of a court to restrain a person from commencing proceedings in exercise of its inherent power to prevent an abuse of process. It has been distinguished twice, first by French J (as his Honour then was) in Hunter v Leahy (1999) 1 FCR 214; [1999] FCA 1075, and secondly by the Court of Appeal of England and Wales in Ebert v Venvil [2000] Ch 485.
In Hunter v Leahy, French J had to decide whether or not an order made by Sheppard J barring the applicant from instituting proceedings without leave was valid. In relation to Inglis, his Honour said at [17]: I do not regard the decision in Commonwealth Trading Bank v Inglis as so constraining the inherent jurisdiction or the implied incidental power of this Court or the application of s 23, that it can prevent this Court from restraining the institution of proceedings which, in effect, seek to relitigate the substance of matters already determined in proceedings which have been disposed of in the Court.
French J relied upon Attorney-General v Wentworth (1998) 14 NSWLR 481 in support of his decision. In that case, the applicant sought an order pursuant to s 84(1) of the Supreme Court Act 1970 (NSW), which gave the court power to restrain a person who had 'persistently and without any reasonable ground institute[d] vexatious proceedings'. Roden J considered the distinction between the institution of proceedings and the taking of a step in proceedings that were already before the court and said at 492: I regard Commonwealth Trading Bank v Inglis as authority for the proposition that interlocutory proceedings taken in the course of an action, no matter by whom they are instituted, are subject to the inherent power of the court to protect its processes from abuse. In so far as they are interlocutory proceedings in a pending action, they are not, in my view, "proceedings instituted" for the purposes of s 84. However, if they seek substantive relief, and particularly if they seek to bring an additional party into the proceedings, they are capable of being so regarded, even if they are properly commenced by notice of motion in existing proceedings.
Roden J said that the court should look at what the litigant had attempted to do in substance rather than form when determining whether or not they had 'instituted proceedings'. French J applied this reasoning in Hunter v Leahy in effect to hold that the court has the inherent power to restrain an action that in form institutes fresh proceedings if it in substance seeks to relitigate a matter that has already been determined.
It will be important to note that French J found that the court has power to restrain the institution of fresh proceedings if they in substance seek to relitigate a matter that has already been determined.
In Ebert v Venvil, Lord Woolf MR considered whether or not the High Court of England and Wales had inherent jurisdiction to make an order prohibiting a person from commencing further proceedings in relation to their bankruptcy. He referred to the decision in Inglis, quoted it at length, and distinguished it on the basis that there was authority available which demonstrated that courts had made orders restraining people from instituting fresh proceedings prior to the passing of the Vexatious Actions Act 1896 (the first Act to regulate vexatious litigants). In other words, Lord Woolf MR considered evidence of courts exercising an inherent power to bar vexatious litigants of which Barwick CJ and McTiernan J were not aware, thus demonstrating that their conclusion in Inglis was based upon a false premise.
On the basis that Inglis (and a similar decision of Fell J in Stewart v Auckland Transport Board [1951] NZLR 576) could not be accepted uncritically, Lord Woolf MR said at 495: We prefer to approach the issues from a standpoint of principle. Doing so, the starting point must be the extensive nature of the inherent jurisdiction of any court to prevent its procedure being abused. We see no reason why, absent the intervention of a statute cutting down the jurisdiction, that jurisdiction should apply only in relation to existing proceedings and not to vexatious proceedings which are manifestly threatened but not yet initiated.
The Queensland Court of Appeal considered the effect of Inglis, Hunter v Leahy and Ebert v Venvil in von Risefer v Permanent Trustee Co Pty Ltd [2005] 1 Qd R 681; [2005] QCA 109 (von Risefer). It is appropriate to give particular attention to this decision because the Court of Appeal considered the issue of the inherent power of the court to restrain the commencement of new proceedings following a decision by the trial judge to dismiss the plaintiff's proceedings summarily, which is the situation that arises in the present case.
Keane JA (as his Honour then was), with whom the other members of the Court of Appeal agreed, recorded the following: [2] On 16 August 2004, the learned primary judge ordered, pursuant to r. 293 of the Uniform Civil Procedure Rules 1999 ("the UCPR"), that there be judgment for the first to fifth defendants in the proceedings commenced by the plaintiffs. Her Honour also ordered the removal of the caveat lodged by the plaintiffs over land of which the fourth and fifth defendants are registered proprietors and that the plaintiffs compensate the fourth and fifth defendants in respect of expenses incurred by them in relation to that caveat. The plaintiffs were restrained from lodging any further dealings with the land without first obtaining the leave of the Supreme Court. Finally, her Honour ordered that the plaintiffs pay the first to fifth defendants' costs of the application to be assessed on the standard basis. [3] From this judgment the plaintiffs have appealed by notice of appeal dated 10 September 2004. The plaintiffs provided an outline of argument in support of their appeal dated 14 October 2004. The first, second and third defendants responded with an outline dated 22 November 2004. The burden of that response is that the allegations and arguments in the plaintiffs' outline of argument are so incoherent, embarrassing, vexatious and irrelevant that it is difficult to make a proper response to them. [4] By application filed on 22 December 2004, the first, second and third defendants sought to have the notice of appeal struck out, as well as an order prohibiting the plaintiffs from commencing any further proceedings against the first, second and third defendants without first obtaining the leave of a judge of the Supreme Court of Queensland. It was also submitted, in the alternative, that if the notice of appeal was not to be struck out then the defendants should receive security for their costs. The fourth and fifth defendants filed an application in similar terms on 17 March 2005. The sixth defendant is not a party to this application. [5] This litigation has a long history. It began with the institution of proceedings by the first defendant against the first and second plaintiffs for the recovery of possession of property at Helensvale of which the first defendant was the mortgagee. This action was commenced because the first and second plaintiffs had defaulted on repayments of the loan secured by the mortgage. The action resulted on 9 June 2000 in judgment for the first defendant, prompting an unsuccessful appeal to this Court and four applications for a stay of the judgment. The appeal was unsuccessful, as were subsequent applications to the High Court and Federal Court arising out of the same subject matter. The plaintiffs' application to the High Court for special leave to appeal was refused on 12 September 2003. Between 16 September 2000 and 28 April 2004 the plaintiffs have also lodged eight caveats over the property. The judgment below [6] The defendants' application which led to the judgment the subject of this appeal was filed on 19 January 2004. It was adjourned on three occasions. The plaintiffs were afforded several opportunities to replead and formulate a recognisable cause of action. They took advantage of these opportunities delivering two amended statements of claim, the last on 6 May 2004. [7] The case which the plaintiffs sought to make against the defendants seemed to be that the sale of the land by auction to the fourth and fifth defendants, which occurred when the first defendant finally recovered possession of the land, did not take place, that no money was paid and that the transaction was a fraud. This startling and unlikely assertion was pleaded in an incoherent fashion and was not supported by any evidence. [8] The learned primary judge addressed the allegations in the plaintiffs' statement of claim in detail. She held that they did not disclose a cause of action known to the law, were an attempt to reopen concluded litigation and that they were, in some respects, scandalous or absurd. Nothing is to be gained by an unnecessary repetition of her Honour's analysis of the plaintiffs' pleading or her conclusions in relation thereto. In my view, her Honour's criticisms of the statement of claim were amply justified. There is no reason shown to doubt her Honour's conclusions that the plaintiffs failed to articulate a case capable of proceeding to trial and that there is not "a scintilla of evidence that those who sold the land, those who purchased the land or those who registered the transfer did anything other than comply with whatever legal and ethical duties applied to them …"
I have set out this extract from Keane JA's judgment in some detail in order to give context to the observation at [5] that the litigation had the long history described in that paragraph, and to the observation at [8] that not only had the trial judge found that the plaintiffs' statement of claim did not disclose a cause of action known to the law, but it also involved an attempt to reopen concluded litigation.
Keane JA stated at [14]: "It has long been established that a court has the power to ensure that its own processes are not abused". His Honour then considered a number of authorities including Inglis and concluded in respect of this aspect of his judgment: [16] Having regard to what was said in the passage cited above from Commonwealth Trading Bank v. Inglis, as to the possible effect of legislation on the inherent jurisdiction, I should observe that I am not aware of any Queensland legislation which has cut down the power of the courts to prevent abuse of the processes of the court. In this regard, the Vexatious Litigants Act 1981 is concerned with the creation of the status of a vexatious litigant and the restriction of that person's ability to institute any proceedings, save by leave of the Supreme Court, while that status subsists. The inherent jurisdiction caters specifically for the protection of identified parties to existing litigation.
In Velissaris v Dynami Pty Ltd [2013] VSCA 299 (Velissaris), the Court of Appeal of Victoria reviewed Inglis, Hunter v Leahy, Ebert v Venvil, von Risefer and other cases involving the inherent power of the court to restrain vexatious litigants. Whelan JA, with whom Tate JA and Osborn JA agreed, explained the current position of the law in the following way: [139] Inglis was concerned with an application to restrain the institution of new proceedings in the widest of terms. The High Court held that such an order could only be made under the applicable vexatious litigant legislative provisions. The Court's acceptance of Grepe means that the Court must be taken to have accepted that orders after judgment were capable of being 'regarded as' made in the action. The dicta in Inglis confines the exercise of the inherent jurisdiction to the Grepe situation. [140] This Court must have due regard to the dicta in Inglis, but it cannot ignore the deficiencies in the material before the High Court, as pointed out in Ebert, and it is also bound to have due regard to two decisions of another intermediate appellate court, the Queensland Court of Appeal, on what is an issue of Australian common law. [141] But for Inglis, I would adopt the English position as set out in Ebert, and to the extent applicable in Australia in Bhamjee. It seems to me that Inglis does preclude that course. [142] Inglis does not, however, preclude the adoption of the course taken in Hunter and adopted in von Risefer and in Goodwin, in my view. Orders can be made in exercise of a court's inherent jurisdiction to prevent abuse of its own processes so as to restrain the institution of fresh proceedings without leave, where those proceedings are in substance an attempt to overturn a judgment already given and re-litigate a matter already decided. [143] Such orders can properly be made by reference to the subject matter of the judgment the party is seeking to re-litigate, as was done in Manolakis, Westwill, and Optquest. [144] Like French J in Hunter, I think the proper basis for such orders is the inherent jurisdiction, not rules like Rule 27.06 which concern a court official's consideration of a document put forward by a party.
It will again be noted that Whelan JA at [142] referred to proceedings that were in substance an attempt to overturn a judgment already given and relitigate a matter already decided.
There is a question about whether, when the Courts of Appeal of Queensland and Victoria considered that the court has inherent power to restrain the commencement without the leave of the court of proceedings that involved an attempt to reopen concluded litigation, the principle discussed extended to a plaintiff who had not otherwise acted with the indicia of a vexatious litigant in any way, but whose second attempt to draw his own statement of claim had led to the summary dismissal of his proceedings because he had not been able to formulate claims that were known to the law.
It may be arguable that the court does have jurisdiction to restrain the commencement of new proceedings in these circumstances without the leave of the court, but in my view having regard to the judgment of the High Court in Inglis and the terms of the judgments in the Courts of Appeal that I have briefly outlined above, that remains a contentious question.
As I have already observed above, the defendants in this case submitted that the court should make the order without in any way providing assistance to the court as to its power to do so, and without having regard to the considerations that have been raised by the authorities. Mr Watiwat would probably not have been able to assist the Court in this regard in any event, but technically he was not given an opportunity to do so.
I do not regard the present to be an appropriate case for the court to determine this contentious question on the basis of its own consideration of the authorities, in the absence of proper submissions from the parties as to the proper course for the court to take.
Furthermore, and in any event, I consider Mr Watiwat to be a genuine litigant in person who has, unfortunately, been unable to accept the pro bono legal advice given to him, and because of his lack of technical understanding, has been unable to grasp that he has sought to pursue claims against the defendants that do not exist as a matter of law and must fail.
Mr Watiwat has not at this stage exhibited the semblance of vexation that would justify the making of the order sought by the defendants, and he has not yet sought to reopen any judgment given against him, whether on the merits of the case or summarily.
Accordingly, I decline to order the restraint against Mr Watiwat that the defendants have sought.

Concluding remarks

The events that have led to the current proceedings are unfortunate. Mrs Watiwat owed money to a number of credit providers and failed to keep up with her repayments. Some of her debts were purchased by the fourth defendant and it commenced proceedings to recover those debts from her.
When Mrs Watiwat did not repay the fourth defendant, the fourth defendant commenced bankruptcy proceedings and Mrs Watiwat was declared bankrupt. Trustees were appointed to administer her bankruptcy. These trustees were entitled to be paid for their work in respect of the administration of her bankruptcy out of her estate. At that time her only substantial asset was her interest in the property that she owned as a joint tenant with Mr Watiwat. Her trustees in bankruptcy, who owed a duty to her creditors, had no choice but to sell the property.
Mr Watiwat resisted the sale. The trustees then had no choice but to commence proceedings against him. The trustees were successful and other trustees were appointed to sell the property. This meant that Mrs Watiwat's bankrupt estate had to pay for the work of the trustees, their solicitors and their counsel in respect of those proceedings, and half of the cost of the trustees appointed to sell the property and the costs of the sale itself. Mr Watiwat had to bear part of the cost of those proceedings and the remaining half of the cost in respect of the sale of the property. It appears that it may have been these costs that led to Mr Watiwat also becoming bankrupt.
When the property was sold the lion's share of the proceeds went to Westpac, which held a mortgage over the property. By the time the costs associated with selling the property were paid and the trustees in Mrs Watiwat's bankruptcy were reimbursed for their work, there was nothing left for Mrs Watiwat's creditors. Mr Watiwat, after paying out his share of the mortgage and the costs associated with the sale, received only a few thousand dollars.
It is easy to understand why he is upset. It is even possible to understand why he persisted with these proceedings, despite receiving pro bono legal advice that reflected his poor prospects of success. But unfortunately his pleadings, even when great effort is expended in trying to interpret them and the evidence that he has provided to the court, do not demonstrate any wrongdoing on behalf of any of the defendants. His wife owed debts and failed to repay them. What happened as a result was what always happens when someone fails to pay their debts and is declared bankrupt.
I have made these remarks to dissuade Mr Watiwat from commencing fresh proceedings without first obtaining competent legal advice. The defendants are entitled to an order that Mr Watiwat pay their costs of the proceedings, including in respect of any notices of motion as to which the court has not already made an order for costs.
I make the following orders: 1. The plaintiff's application for leave to file a further amended statement of claim is denied. 2. The defendant's application to amend its notice of motion dated 24 July 2017 is allowed. 3. The proceedings are dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). 4. The plaintiff is to pay the defendants' costs of the proceedings, including all notices of motion in respect of which a costs order has not already been made.

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