JUDGMENT - APPLICATION under Vexatious Proceedings Act 2008
On 8 October 2021, Campbell J made the following orders in Williamson v Elders Rural Services Australia Limited & Ors [2021] NSWSC 1259:
"(1) Under s 8(7) Vexatious Proceedings Act 2008, except in the case of leave first obtained under Part 3 of the Act, Hugh Francis Arthur Williamson is prohibited from instituting proceedings in New South Wales against the Rural Bank Limited and the Bendigo and Adelaide Bank Limited, their directors, officers, employees or legal representatives in any matter in any way related to, arising out of, or in connection with the subject matter of proceedings file No. 2017/156318 determined by Rees J on 16 November 2018 by entry of judgment in favour of the Bendigo and Adelaide Bank Limited and proceedings No. 2015/226349 determined by Johnson J on 19 December 2018 by entry of judgment in favour of Elders Rural Services Australia limited.
(2) Under s 8(7) Vexatious Proceedings Act 2008, except in the case of leave first obtained under Part 3 of the Act Hugh Francis Arthur Williamson is prohibited from instituting proceedings in New South Wales against Elders Rural Services Australia Limited and Elders Limited their directors, officers, employees or legal representatives in any matter in any way related to, arising out of, or in connection with the subject matter of proceedings no. 2015/226346 determined by Johnson J on 19 December 2018 by entry of judgment in favour of Elders Rural Services Australia Limited."
The consequence of those orders is that Hugh Francis Arthur Williamson cannot commence proceedings in New South Wales against the Rural Bank Limited, and/or the Bendigo and Adelaide Bank Limited, and/or Elders Rural Services Australia Limited, and/or Elders Limited without first obtaining the leave of the court under s 14 of the Vexatious Proceedings 2008 (NSW). Section 14 of the Act is in these terms:
14 Application for leave to institute proceedings
(1) This section applies to a person (the applicant) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or
(b) acting in concert with another person who is subject to an order referred to in paragraph (a).
(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.
(3) The applicant must file an affidavit with the application that:
(a) lists all occasions on which the applicant has applied for leave:
(i) under this section, or
(ii) before the commencement of this section - as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and
(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and
(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
(4) The applicant must not serve a copy of the application or affidavit on any person unless:
(a) an order is made under section 16 (1) (a), and
(b) the copy is served in accordance with the order.
(4A) An authorised court may decline to consider an application made under this section if the court is not satisfied that the application is materially different from an earlier application under this section that was dismissed under section 15 (1) (b) or (c).
(5) An appropriate authorised court may dispose of the application by:
(a) dismissing the application under section 15, or
(b) granting the application under section 16.
(6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application.
Section 15 of the Act governs the circumstances in which the application can be dismissed and is in these terms:
15 Dismissing application for leave
(1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers:
(a) the affidavit required by section 14(3) does not substantially comply with that subsection, or
(b) the proceedings are vexatious proceedings, or
(c) there is no prima facie ground for the proceedings.
(2) The application may be dismissed even if the applicant does not appear at the hearing of the application.
Section 6 of the Act provides that the meaning of "vexatious proceedings" includes:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.
Orders under the Act were sought by the respondents before Campbell J because Mr Williamson has persistently sought to impugn or attack collaterally previous judgments of this Court in both the Common Law division and in the Equity division. He has a lengthy history of pursuing complaints against these parties that have already been determined by this Court. That history is set out in the judgment of Campbell J, and I do not propose to summarise it here. I note, however, that his Honour concluded his judgment by observing the following at [89]:
"I am satisfied that the orders sought, confined as they are to the Banks, Elders and their officers, agents and legal representatives, are appropriate in the circumstances. I am satisfied that Mr Williamson has frequently instituted vexatious proceedings against the Banks, Elders and related persons arising out of or in connection with the matters underpinning the Great Southern litigation and the Reevesdale litigation. Mr Williamson's repeated challenges to Rees J's judgment in the Great Southern litigation and to Johnson J's judgment in the Reevesdale litigation, and the manner of his conduct of his litigation, amply demonstrate a complete unwillingness to accept the correctness of the judgments, that his challenges have been rejected and that there are no grounds for any further challenge."
On 31 May 2022, Mr Williamson electronically filed a summons seeking leave to file a notice of motion in proceedings number 2015/00226349 naming the four respondents as Elders Rural Services Australia Limited (the first respondent), Rural Bank Limited (the second respondent), Bendigo and Adelaide Bank Limited (the third respondent), and Elders Limited (the fourth respondent).
The matter was subsequently referred to me for the question of whether leave should be granted to Mr Williamson to file the motion to "re-commence" proceedings.
Mr Williamson did not initially file any affidavit in support in compliance with s 14(3) of the Vexatious Proceedings Act. The Registrar contacted him to request such an affidavit and Mr Williamson subsequently swore an affidavit in purported compliance with s 14(3) of the Act on 20 June 2022. In his affidavit, Mr Williamson accepted that he has commenced numerous proceedings in this matter and also accepted that they were "largely misconceived". He apologised for doing so. He explained that he had not understood that instead of commencing separate proceedings he should have just brought the 2015 proceedings back to court and joined the other parties to it.
Mr Williamson then repeated the very same submissions he has made over the years in his previous litigation against the proposed respondents. He alleges that he was lied to about the Reevesdale property, that Elders obtained the sale price by fraud of both him and court, and that all parties have either assisted the fraud or covered it up. Significantly, Mr Williamson goes on to address factual matters that have already been determined in the previous litigation including how it is that he was deceived. He also repeats submissions concerning Mr Les Hannan (now deceased) that he has made in previous proceedings which have been finalised. He concludes his affidavit in the following terms:
"I apply under the Vexatious Proceedings Act to enable me to take the necessary steps to pursue each of the respondents. This time I will use proceedings number that I first had against ERSAL (2015/226349) and apply to join the other three in those proceedings."
The application by Mr Williamson is misconceived.
The most significant hurdle to Mr Williamson's motion is that Johnson J has already dealt with proceedings number 2015/00226349 and they were finalised some years ago: Williamson v Elders Rural Services Australia Limited (No. 2) [2018] NSWSC 1986. Those proceedings were heard before Johnson J on 27, 28, and 29 November 2017 and on 19 December 2018 his Honour gave judgment for Elders against Mr Williamson. Those proceedings cannot be "revived" under that specified file number 2015/00226349 in order to litigate the same issues with different defendants.
Furthermore, all of the issues raised by Mr Williamson in his affidavit and notice of motion are the subject of the order made under the Vexatious Proceedings Act in any event.
Although the motion purports to revive proceedings rather than commence new proceedings, I propose to treat the motion as an application for leave to commence new proceedings.
[2]
Order
Accordingly, I make the following order:
1. Pursuant to s 15(1)(b) and (c) of the Vexatious Proceedings Act 2008 (NSW) the application for leave to commence proceedings is dismissed.
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Decision last updated: 08 September 2022