SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Mbuzi v Hall & Anor [2010] QSC 359 PARTIES: JOSIYAS ZIFANANA MBUZI (Applicant/Respondent to interlocutory application) AND ELIZABETH HALL (First respondent) AND AUSTRALIAN ASSOCIATED MOTOR INSURERS LIMITED (Second respondent/applicant for interlocutory orders) AND CLIFFORD ROWE CHUTER (Applicant for interlocutory orders) AND CHERREL HIRST (Applicant for interlocutory orders) AND MARTIN DOUGLAS EBERLAIN KRIEWALDT (Applicant for interlocutory orders) AND FILE NO/S: 6243 of 2009 DIVISION: PROCEEDING: ORIGINATING COURT: CHRISTOPHER SKILTON (Applicant for interlocutory orders) Trial Division Application Supreme Court of Queensland DELIVERED ON: 22 September 2010 DELIVERED AT: Brisbane HEARING DATE: 31 August 2010 JUDGE: Applegarth J

2 2 ORDER: 1. Pursuant to r 389A of the Uniform Civil Procedure Rules 1999, the applicant not file any further application in relation to the application for judicial review (No of 2009), including an appeal in relation to the proceeding, without the leave of the Court, and in the case of an appeal from these orders, without the leave of the Court of Appeal. 2. The applicant provide security for the costs of the second respondent in relation to the application for judicial review (No of 2009) in the sum of $7,500 in a form approved by the Registrar. 3. Such security be provided within 21 days of the date of this order. 4. Until the security is given a party to the proceeding not take a further step in the proceeding without the leave of the Court. 5. If the security is not given as required by paragraph 2 of this order, the proceeding be stayed so far as it concerns steps to be taken by the applicant. 6. If the security is not given as required by paragraph 2 of this order the second respondent may apply to dismiss all or part of the proceeding. 7. Pursuant to r 772 of the Uniform Civil Procedure Rules 1999 the applicant provide security for the prosecution of his application for leave to appeal to the Court of Appeal and of any appeal associated with a grant of leave (Court of Appeal No of 2010) ( the appeal ) in the sum of $5,500 in a form approved by the Registrar. 8. Such security be provided within 21 days of the date of this order. 9. Until the security is given a party to the appeal not take a further step in the proceeding without the leave of the Court of Appeal. 10. If the security is not given as required by paragraph 7 of this order, the appeal be stayed so far as it concerns steps to be taken by the applicant, unless the Court of Appeal otherwise orders. 11. The applicant in the application for judicial review pay the costs of the second respondent and the costs of Clifford Rowe Chuter, Cherrel Hirst, Martin Douglas Eberlain Kriewaldt and Christopher Stilton of and incidental to the application filed 16 July 2010, as amended on 20 July 2010, to be assessed on the standard basis. 12. The applicants in that application are not required to pay the costs of and resulting from the amendment made pursuant to r 378. CATCHWORDS: PROCEDURE SUPREME COURT PROCEDURE QUEENSLAND PROCEDURE UNDER RULES OF COURT - where a self-represented litigant applies for judicial

3 3 review in the principal proceeding whether the applicant has made more than one application in relation to the proceeding, including an appeal in relation to the proceeding, that is frivolous, vexatious or an abuse of process whether the applicant should be ordered to not make a further application in relation to the proceeding without leave of the court PROCEDURE COSTS SECURITY FOR COSTS POVERTY where costs orders made against the applicant by judges of the trial division and by the Court of Appeal where the applicant has not paid a costs order that has been assessed where the applicant has adopted a vexatious mode of conducting the litigation apparent lack of means of the applicant to meet orders for costs whether the applicant should be required to provide security for costs in relation to the application for judicial review and an application for leave to appeal to the Court of Appeal CASES: Anghel v Minister for Transport (No. 2) [1995] 2 Qd R 454 Bhamjee v Forsdick [2004] 1 WLR 88, cited Cowell v Taylor (1885) 31 Ch D 34, cited Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd (2008) 67 ACSR 105; [2008] NSWCA 148, followed Hambleton v Labaj [2010] QSC 124, cited Harpur v Ariadne Australia Limited [1984] 2 Qd R 523, cited Henderson v Taylor, Information Commissioner of Queensland [2006] QCA 267 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 Jenkins v Martin [2004] QSC 417, cited Jones v Cusack (1992) 109 ALR 313, cited Lohe v Tait [2002] QSC 399, cited Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] 2 Qd R 187, applied Mbuzi v Hall & Ors [2009] QCA 405, cited Mbuzi v Hall & Ors [2010] QCA 5, cited Mbuzi v Hall & Ors [2010] QCA 23, cited Merribee Pastoral Industries Pty Limited v Australia & New Zealand Banking Group Limited [1998] HCA 41; 193 CLR 502, cited Melville v Craig Nowlan and Associates Pty Limited [2002] NSWCA 32; 54 NSWLR 82, cited Morris v Hanley [2000] NSWLR 957, cited Mudie v Gainriver Pty Ltd (No. 2) [2003] 2 Qd R 271, cited Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241, applied National Bank Ltd v Freeman [2006] QSC 086, cited Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473, cited Oceanic Sunline Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247, cited

4 4 Pearson v Naydler [1977] 3 All ER 531, cited Rajski v Computer Manufacture and Design Pty Ltd [1982] 2 NSWLR 443, cited Robertson v Hollings [2009] QCS 303, cited Robson v Robson [2008] QCA 36, cited Sywak v Visnic (No 2) [2010] NSWCS 374, cited Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337, cited von Risefer v Permanent Trustee Co P/L [2005] QCA 109, cited Weger v Boola Boola Petroleum and Natural Gas Co (No Liability) [1923] VLR 570, cited STATUTES: Uniform Civil Procedure Rules 1999 (Qld) (UCPR), rr 5, 69, 378, 389A, 578, 668, 670, 671(h), 772, 738 Supreme Court Act 1991 (Qld), s 93LA Local Government (Planning and Environment) Act 1990 (Qld), s 7.6(1) (now repealed) Judicial Review Act (Qld) 1991, s 49 COUNSEL: SOLICITORS: G D Beacham for the applicants for interlocutory orders The respondent to the interlocutory application/applicant in the principal proceedings appeared in person Rodgers Barnes & Green Lawyers for the applicants for interlocutory orders The respondent to the interlocutory application/applicant in the principal proceedings appeared in person Introduction [1] The applicant in the principal proceeding, Mr Mbuzi, is an unrepresented but nonetheless experienced litigant. 1 In this proceeding he applies for judicial review of certain decisions of the first respondent made on 11 June 2009 as a referee of the Small Claims Tribunal. The second respondent (AAMI) was a respondent before the Small Claims Tribunal to the applicant s claim for $3,276 in respect of a home building and contents insurance policy. AAMI contended that accidental breakage to a stove s cooktop was not covered by the policy. The first respondent accepted AAMI s contention and dismissed the applicant s claim against it. [2] The applicant s essential complaint in his proceeding for judicial review is that the first respondent should have disqualified herself from the Small Claims Tribunal proceedings on grounds of apprehended bias and conflict of interest, and that she should have allowed the applicant an adjournment to seek legal advice on documents given to him in the course of those proceedings. The proceeding for judicial review in this Court should have been fairly simple. Instead, it has generated numerous interlocutory applications, at least three applications by the 1 Mbuzi v Hall & Ors [2009] QCA 405 at [5] per Fryberg J, citing other litigation involving Mr Mbuzi.

5 5 applicant for leave to appeal to the Court of Appeal and an enormous volume of documents. 2 [3] By an amended application, AAMI and four individuals who the applicant joined as the third, fourth, fifth and sixth respondents in the proceeding for judicial review seek orders: (a) pursuant to r 389A of the Uniform Civil Procedure Rules 1999 (UCPR) that the applicant not file any further applications in relation to the application for judicial review without the leave of the Court; (b) for security for costs: (i) (ii) pursuant to UCPR r 670 in relation to the application for judicial review; pursuant to UCPR r 772 in relation to an application for leave to appeal to the Court of Appeal. The issues [4] UCPR r 389A relevantly provides: (1) This rule applies if the court is satisfied that a party (the relevant party) to a proceeding (the existing proceeding) has made more than 1 application in relation to the existing proceeding that is frivolous, vexatious or an abuse of process. (2) The court may make an order under this rule on application by a party to the existing proceeding or on its own initiative. (3) The court may order that (a) the relevant party must not make a further application in relation to the existing proceeding without leave of the court; (9) This rule does not limit any inherent or other power of a court or judge. (10) In this rule application in relation to the existing proceeding includes an appeal in relation to the existing proceeding. [5] The first issue is whether I am satisfied that the applicant has made more than one application in relation to this proceeding for judicial review that is frivolous, vexatious or an abuse of process. If I am satisfied of that fact, then I have to consider if it is appropriate to exercise the discretion to order that he must not make a further application in relation to the proceeding without leave of the Court. [6] As to the applications for security for costs, I must decide whether a basis for making such an order exists under the rules or in the exercise of the Court s inherent jurisdiction to order security for costs. This includes whether the justice of the case requires the making of the order under r 671(h) to order security for costs. I 2 There are currently 81 documents on the Court File Index (CFI). Exhibits to an affidavit sworn by a solicitor for AAMI contain 614 pages of correspondence, court documents, transcript and other documents.

6 6 also must consider relevant discretionary matters. If I reach the conclusion that it is appropriate to make an order for security for costs, then I must decide the quantum of the security to be ordered. A brief history of the litigation [7] On 12 June 2009 the applicant filed an application for judicial review. The respondents to the application were the magistrate who constituted the Small Claims Tribunal on 11 June 2009, AAMI and four of its directors ( the Directors ). On 23 June 2009 AAMI and the Directors filed an application to dismiss the application for judicial review. On 9 July 2009 White J (as her Honour then was) declined to dismiss the proceeding in its entirety, but made an order that the application against the Directors be dismissed, and ordered the applicant to pay the Directors costs of and incidental to the application, excluding the costs of 29 June [8] On 6 August 2009 the applicant filed an application for leave to appeal against the decision of White J. On 24 December 2009 the application was dismissed with costs. 3 [9] On 6 January 2010 the applicant filed an application seeking a stay of the judgment of the Court of Appeal and relief pursuant to UCPR r 668. The application was considered by Chesterman JA who decided the matter on 4 February The application was based on the assertion that the applicant did not know until after the Court of Appeal gave judgment on 24 December 2009 that the Court intended to act upon certain further submissions, an affidavit and transcript, despite the applicant s objection to the receipt of this material. Chesterman JA concluded that the matter did not come within the terms of r 668. His Honour concluded: There are no facts discovered which if discovered in time, would have entitled the applicant here to a different order. He was made aware of what was being said by the respondents, he replied to it. What has happened is that the Court has preferred his opponent s submissions to his, and made orders on the basis of evidence in submissions which were put before the Court by those on the other side. [10] Chesterman JA referred to a second point that the applicant raised, namely that the affidavit, or the transcript annexed to it, was a forgery, and that no such order was made. His Honour concluded: That is needless to say a most serious allegation which to be taken seriously would require the most cogent evidence in support of it, and none whatsoever has been supplied. [11] On 19 February 2010 Chesterman JA ordered the applicant to pay AAMI and the Directors costs of and incidental to the application filed on 6 January 2010 to be assessed on the indemnity basis. 5 Chesterman JA reiterated that he had dismissed the application brought pursuant to UCPR r 668 because he had no power under the rule to make the orders sought and because, in any event, the precondition for the power conferred by the rule had not been satisfied. His Honour stated: Mbuzi v Hall & Ors [2009] QCA 405. Mbuzi v Hall & Ors [2010] QCA 5. Mbuzi v Hall & Ors [2010] QCA 23.

7 7 The second consideration gave rise to the auxiliary concern that the application was based upon a serious misstatement of the relevant facts and a misrepresentation of what occurred during the hearing of the appeal and during the subsequent exchange of written submissions delivered pursuant to the direction of the court. 6 Chesterman JA concluded: For these two reasons, the fact that the application was misconceived and because it was predicated upon facts which the applicant must have known were wrong, makes it appropriate to order indemnity costs, the order sought by the respondents. 7 [12] On 19 March 2010 the applicant filed an application for Special Leave to Appeal to the High Court against the judgments of the Court of Appeal given on 24 December 2009, 4 February 2010 and 19 February The High Court dismissed the application on 17 June [13] The Directors sought to have the costs ordered by White J on 9 July 2009 assessed. The Registrar made the necessary order for the costs to be assessed and appointed a Mr Bloom as the Costs Assessor. [14] On 29 January 2010 Mr Bloom forwarded correspondence to the Directors solicitors and to the applicant, enclosing his costs assessor s certificate dated 29 January Mr Bloom also wrote a letter dated 29 January 2010 to the Registrar referring to his appointment and enclosing in accordance with UCPR r 737 his costs certificate. The costs certificate was filed on 1 February On 26 February 2010 the Registrar made an order that the applicant pay the Directors costs in the sum assessed by Mr Bloom, namely $13, [15] On 9 March 2010 the applicant filed an application seeking orders that the order dated 26 February 2010 be set aside, varied or stayed, and for the Registrar to refer the matter to a Judge. The application was heard and determined by Alan Wilson J on 10 May His Honour carefully considered the various complaints and arguments raised by the applicant. After addressing each of the applicant s submissions, Wilson J concluded that the applicant was not entitled to the relief that he sought. The application was dismissed with costs to be assessed on the standard basis. [16] On 7 June 2010 the applicant filed a notice of appeal and application for leave to appeal against the whole of the judgment of Wilson J. That application has not been listed for hearing. [17] On 24 June 2010 the applicant filed an application to join Mr Bloom as a respondent in the judicial review proceedings and for other relief. The other relief sought to agitate issues in relation to the appointment of Mr Bloom as a cost assessor, his costs assessor s certificate and other matters. The applicant s affidavit in support of that application contained assertions in relation to Mr Bloom that he lacked impartiality and had written to the Court s registry making claims which I Mbuzi v Hall & Ors [2010] QCA 23 at [2]. Ibid at [3]. Affidavit of Adam Bloom filed 14 May 2010, CFI document no. 39; further affidavit of Mr Bloom filed 30 June 2010, CFI document no. 47. CFI document no. 28.

8 8 reasonably believe to be deceptive, misleading and false, for which I suspect is an attempt to cover-up his breaches of court rules. 10 The affidavit did not provide a factual foundation for such serious allegations. The applicant s asserted suspicion and asserted belief that Mr Bloom acted as alleged were no substitute for evidence. Having regard to the material concerning Mr Bloom s correspondence to the court and the adjudication by Alan Wilson J of the applicant s complaints concerning the process of costs assessment, I consider that the applicant s serious allegation that Mr Bloom had engaged in an attempt to cover-up his breaches of court rules is without a proper foundation. [18] Apart from lacking a proper factual foundation, the application brought against Mr Bloom faced the immunity provided by s 93LA of the Supreme Court Act [19] The application to join Mr Bloom as a party pursuant to UCPR r 69 was misconceived. The application was heard by P Lyons J on 30 July After considering r 69 his Honour stated: The underlying application for judicial review remains on foot. It is concerned, however, with the correctness of the decision of the Small Claims Tribunal. There is no reason whatsoever to think that Mr Bloom s presence is necessary or desirable, just and convenient in relation to matters associated with that dispute. [20] P Lyons J noted that there was an appeal on foot in relation to the decision of Wilson J. He had regard to the notice of appeal and was unable to glean a proper basis for adding Mr Bloom as a party. He concluded that the disputes raised in the appeal did not make it necessary that Mr Bloom be added as a party to the proceedings. His Honour went on to consider the other relief sought in the application and concluded that it did not provide a proper basis for the joinder of Mr Bloom. The application was dismissed. Mr Bloom did not seek his costs of the application despite, in my view, having good reason to do so. The directors sought their costs, and after considering the applicant s opposition to this order being made, P Lyons J ordered that the applicant pay the costs of the Directors of and incidental to the application, including reserved costs. [21] On 27 August 2010 the applicant filed an application for leave to appeal against the decision of P Lyons J. 11 [22] The applicant s amended application for judicial review, amended pursuant to UCPR r 378 on 5 July 2010, still names the Directors as the third, fourth, fifth and sixth respondents. This is not simply a matter of oversight by including their names in the court document heading (something AAMI and the Directors have also done in their court documents). The amended application filed 5 July 2010 was still directed against the first respondent, AAMI and the Directors. The applicant asserts: There was only one Judicial Review application in relation to the decision of Mrs Hall made in favour of respondents two to six and that review application is still alive and in its original state with respondents two to six as still parties to the proceedings because there is no order to remove them as respondents to the review CFI document no. 45, para 10 and 12. CFI document no. 74. Submissions of the applicant filed by leave 31 August 2010, paragraph 14.

9 9 [23] His assertion that the Directors are still parties to the judicial review proceedings ignores the order of White J made on 9 July 2009 that the application for judicial review against the Directors be dismissed, being an order confirmed by the Court of Appeal. The Directors have been parties to applications within the judicial review proceedings because they have the benefit of costs orders. But they are not parties to the application for judicial review: a fact that the applicant is unable or unwilling to face. Overview of the litigation [24] An application for judicial review of the first respondent s decision on the grounds appearing in the original application and in the amended application for judicial review should have been a relatively simple matter to litigate. Instead, this proceeding and related applications for leave to appeal to the Court of Appeal have been unnecessarily complicated, protracted and costly. Most of the responsibility for that lies with the applicant. In his reasons for judgment in the Court of Appeal on 24 December 2009, Fryberg J referred to the applicant s reply as comprising mainly an offensive and rambling personal attack on the Directors, White J and counsel for his opponents. 13 Many other affidavits and submissions filed by the applicant in the proceedings are of a similar character. Relevant principles [25] A self-represented litigant, like any other litigant, impliedly undertakes to the Court and to the other parties to proceed in any expeditious way. 14 The purpose of the rules of civil procedure is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. 15 The just resolution of the real issues in civil proceedings may on occasions require a judge to give proper assistance to self-represented litigants to ensure that the proceedings are conducted fairly and to avoid undue delay, expense and technicality. 16 The proper scope for assistance depends on the particular litigant and the nature of the case. 17 The judge cannot become an adviser to the self-represented litigant, for the role of the judge is fundamentally different to that of a legal adviser. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. 18 [26] In determining the application I take account of the fact that the applicant is selfrepresented. However, his self-represented status does not entitle him to bring interlocutory applications that have no real prospect of success, delay the just and expeditious resolution of the principal proceeding and generate unnecessary costs to other parties. The applicant s self-represented status does not entitle him to support his applications with documents that contain offensive, rambling and unfounded personal attacks on other parties, their legal representatives, costs assessors and judges Mbuzi v Hall & Ors [2009] QCA 405 at [23]. UCPR r 5(3). UCPR r 5(1). UCPR r 5(2). Tomasevic v Travaglini (2007) 17 VR 100; [2007] VSC 337 at [141]. Ibid at [142].

10 10 [27] A court is entitled to extend some latitude to a self-represented litigant who is not familiar with forms and procedure, provided in doing so injustice and prejudice is not occasioned to other parties, and also provided the court is able to achieve a just and expeditious resolution of the real issues of the proceeding at a minimum of expense. A self-represented litigant should not be permitted to disregard rules and to conduct litigation in a manner which is unjust to other parties and contrary to the interests of justice. As Keane JA (as his Honour then was) observed in Robertson v Hollings: 19 litigation is not a learning experience. The Courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. His Honour continued: Judge Learned Hand, one of the greatest of modern judges, is quoted as having said: After now some dozen years of experience I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death. Litigation in the superior courts is expensive, time consuming and extremely stressful for litigants. These negative aspects of the adversarial system of civil justice are minimised and rendered tolerable by the rules which ensure that the process is conducted in accordance with irreducible minimum requirements of fairness and rationally. 20 [28] Lord Phillips MR in Bhamjee v Forsdick 21 stated: A court s overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. They thereby divert the court s resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit. (emphasis added) [29] This Court has an inherent jurisdiction to prevent an abuse of its processes, including by requiring a vexatious litigant to obtain leave to issue a fresh application within an existing proceeding. 22 The introduction of r 389A does not displace this inherent jurisdiction. 23 [30] Rule 389A does not require a determination that the applicant is a vexatious litigant. Whether or not he has frequently instituted or conducted vexatious proceedings in Australia so as to justify orders being made under the Vexatious Proceedings Act 2005 (Qld) is not a matter for my determination. Those with standing to bring an application under that Act may wish to address that issue. The issue under [2009] QCS 303 at [11]. Ibid at [13]. [2004] 1 WLR 88 at 93; followed in National Bank Ltd v Freeman [2006] QSC 086 at [26]. Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473; von Risefer v Permanent Trustee Co P/L [2005] QCA 109. Ibid; r 389A(9) UCPR.

11 11 r 389A is whether the applicant has made more than one application in relation to this proceeding that is frivolous, vexatious or an abuse of process. [31] AAMI and the Directors submit that the words frivolous and vexatious should be interpreted in accordance with authorities that have considered those words in the context of vexatious proceedings. Mudie v Gainriver Pty Ltd (No. 2) 24 considered the words in the context of the (now repealed) Local Government (Planning and Environment) Act 1990 (Qld), s 7.6(1) which permitted orders to be made if the Court considered a proceeding to have been frivolous or vexatious. McMurdo P and Atkinson J stated: [35] The words frivolous or vexatious are not defined in the Act and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process. By the time an application for costs is made, the court knows the issues which have been litigated whilst a interlocutory applications, the court must to some extent speculate and must necessarily be cautious to ensure a deserving claimant is not unjustly deprived of the opportunity of a trial of the action. The Macquarie Dictionary defines frivolous as of little or no weight, worth or importance; not worthy of serious notice: a frivolous objection. 2. characterised by lack of seriousness or sense: frivolous conduct and vexatious as 1. causing vexation; vexing; annoying. [36] Unquestionably, something much more than lack of success needs to be shown before a party's proceedings are frivolous or vexatious. Although in a different context, some assistance can be gained from the discussion of the meaning of these words in Oceanic Sun Line Special Shipping Company Inc v Fay where Deane J states that oppressive means seriously and unfairly burdensome, prejudicial or damaging and vexatious means productive of serious and unjustified trouble and harassment, meanings apparently approved by Mason C.J. Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd. Those meanings are apposite here. (footnotes omitted) Williams JA was also of the view that the words should be given their ordinary meaning, and followed earlier authority that vexatious should be understood as meaning productive of serious and unjustified trouble and harassment. 25 [32] The applicant did not contest the submission that such a meaning should be given to the word vexatious in r 389A. I accept the submission. [33] A proceeding that is instituted to harass or annoy, to cause delay or detriment, or for another unlawful purpose is a vexatious proceeding. However an improper purpose is not necessary. 26 As Toohey J stated in Jones v Cusack 27 the question is whether the legal proceedings are vexatious, not whether they have been instituted [2003] 2 Qd R 271 at 283-4, [35]-[36]; [59]-[62]. Ibid at 291 [61], citing Deane J in Oceanic Sunline Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247. Hambleton v Labaj [2010] QSC 124 at [11]. (1992) 109 ALR 313 at 315, followed in Lohe v Tait [2002] QSC 399 at [21].

12 12 vexatiously. It is not the respondent s belief in the correctness of his arguments with which the Court is concerned. 28 [34] The essential issue in determining whether r 389A applies in this case is whether the applicant has brought more than one application in relation to this proceeding (including an appeal in relation to it) that has been productive of serious and unjustified trouble and harassment. Has the applicant brought more than one application in relation to this proceeding that is frivolous, vexatious or an abuse of process? [35] The application that was dismissed by Chesterman JA was misconceived, as his Honour found. In addition, it was advanced in reliance upon assertions that were wrong, and which Chesterman JA found the applicant must have known were wrong. The applicant alleged malpractice and misconduct in relation to the transcript of proceedings in the Small Claim Tribunal. 29 The essence of the allegation was an alternation of the transcript: a most serious allegation requiring clear evidence. As Chesterman JA concluded, no such evidence was supplied by the applicant. [36] The inconvenient truth which the applicant unreasonably refused to accept is that the transcript of the Small Claims Tribunal records a decision of the first respondent on 11 June 2009 removing the Directors as respondents before she proceeded to hear and determine the merits of the claim against AAMI. 30 [37] The misconceived application that was made to Chesterman JA was advanced with serious allegations against persons associated with AAMI and the Directors that the applicant failed to justify. Chesterman JA found that the applicant must have known that the facts upon which it was predicated were wrong, and I respectfully agree with that conclusion. The bringing of the application was productive of serious and unjustified trouble and harassment. I find that it was a vexatious application. [38] I next consider the application to join Mr Bloom, the costs assessor, as a party to these proceedings. It was misconceived. There was no proper basis to join Mr Bloom as a party. The applicant s grievances against Mr Bloom had been agitated, without success, before Alan Wilson J on 10 May Leaving aside Mr Bloom s broad immunity under s 93LA of the Supreme Court Act 1991, his presence as a party was not necessary, desirable, just or convenient to the resolution of the substantive proceeding for judicial review. The application was brought without any reasonable basis. It harassed Mr Bloom, AAMI and the Directors. It was productive of unnecessary costs. It was apt to cause trouble and annoyance to the respondents to that application, without justification. I find that it was a vexatious application. [39] It is unnecessary to consider whether the other applications that AAMI and the Directors point to were frivolous, vexatious or any abuse of process. The Ibid. Affidavit of Mr Van Reede Van Outshoorn filed 16 July 2010 ( Van Reede ) paras 49(b), 50(a), 50(d). Mbuzi v Hall [2009] QCA 405 at [31]; Van Reede, Exhibit FVR 8 p23; transcript 1-3 line 15.

13 13 precondition for r 389A to apply has been established: the applicant made more than one application in relation to this proceeding that was vexatious. The discretion to make an order under r 389A [40] The applicant did not identify any pending application in this proceeding which he intended to file that would be affected by a requirement that he obtain leave of the Court before making the application. He did not submit that an order of the kind sought would unreasonably frustrate his ability to bring a further application. [41] I consider that an order of the kind sought is appropriate. It will require the applicant to obtain leave to make a further application in relation to this proceeding. This includes applications that have the effect of frustrating and delaying the assessment of costs that he has been ordered to pay, and applications for leave to appeal against decisions in relation to costs. [42] I consider that an order made under r 389A is necessary to ensure that the real issues in the judicial review proceeding are determined without excessive delay and without the incurring of unnecessary costs on interlocutory applications that have no substantial merit. [43] I make an order pursuant to r 389A in accordance with paragraph 2A of the amended application filed 20 July Other matters in relation to the rule 389A application [44] I have found it unnecessary to make findings in relation to the applicant s motivation in bringing various applications in relation to this proceeding, and in unsuccessfully resisting applications by AAMI and the Directors. I also have not delayed delivery of my decision by addressing in detail the numerous, serious personal attacks that the applicant has made in affidavits and submissions against other parties, their legal representatives, Mr Bloom and judges. Individuals who are defamed without justification on an occasion of absolute privilege have no remedy in defamation. Conduct which imposes improper pressure on other litigants may be the subject of contempt proceedings. Scandalous and other completely unjustified allegations against individuals that are contained in affidavits and submissions that are read in open court may be fairly reported in the media. Any fair report of the allegations would need to include counterveiling material that is relied upon in the same hearing. If judicial officers had the time, then a large amount of time would be required to consider whether material filed by the applicant should be removed from the court file or not open to public access. But such an exercise would divert judges and public resources from other cases that await hearings. [45] Judges of this Court have not had the time to dwell upon the large number of serious allegations made by the applicant against other parties, their legal representatives, a costs assessor and other judges. The limitations on judicial resources to dwell upon what the Court of Appeal described as offensive and rambling personal attacks may encourage the applicant to repeat these allegations or make similar allegations. I have sufficient confidence in the public to not accept allegations of corruption and similar scandalous allegations against judicial officers. Reference to the hundreds of pages of transcripts and other reliable material on the court file would confirm that such allegations are ill-founded.

14 14 [46] The applicant is not constrained by the professional obligations of officers of the Court, and persistently makes serious allegations against the legal representatives of AAMI and the Directors. A recent example is an allegation that a solicitor made a false statement in an affidavit. The applicant served on AAMI and its Directors what appeared to be an application to join the solicitor as a party to the judicial review application. 31 The allegation was that the solicitor made a false statement in an affidavit sworn on 6 May The affidavit was of a formal kind and exhibited correspondence in relation to the costs assessment undertaken by Mr Bloom. I apprehend that the alleged false statement is that Mr Bloom assessed costs in the sum of $13, and filed his certificate with this Court on 1 February The solicitor s statement would appear to be correct, given the contents of correspondence addressed to the Registrar dated 29 January 2010 exhibited to Mr Bloom s affidavit filed 14 May 2010, and the fact that the Court s records state that the certificate was filed on 1 February It is apparent that Mr Bloom caused his certificate to be filed and it was filed on 1 February The allegation that the solicitor made a false statement in his affidavit appears to be without any reasonable foundation. The applicant s report to the Court of alleged wrongdoing by the solicitor is nonsense. The solicitor should not have been troubled by such an unsubstantiated allegation. However, allegations of this kind do tend to trouble solicitors whose qualifications and reputations are hard-earned, even when they know that the allegation is unsubstantiated. [47] I found the applicant to be an unreliable historian of even recent events. The matter came before me on 31 August 2010, having been part heard by Margaret Wilson J in the Applications List on 30 August The applicant sought to advance a preliminary argument before me based on r 378, namely that the parties bringing the application had failed to obtain leave to amend the application. He denied that Wilson J had decided the issue the day before. 33 I ordered the transcript which recorded that Wilson J ruled against the applicant on his r 378 point. 34 The applicant could have been under no misunderstanding about this, since following the ruling he obtained an adjournment of the amended application. [48] Despite this knowledge, the applicant attempted to reargue his r 378 point before me. 35 This was despite access to the previous day s transcript. I declined to allow him to reargue the point. [49] It was convenient and appropriate for the application pursuant to UCPR r 389A to be heard at the same time as the previously filed application for security for costs. The application under r 389A was successful and the costs of and resulting from the amendment made to the application under r 378 should not be paid by the successful parties who made the amendment. I so order so as to alter what would otherwise be the effect of r 386 in relation to costs of and resulting from the amendment made under r 378. Costs should follow the event in respect of the successful application under r 389A Van Reede, CFI 64, FVR-108. Transcript ; T 1-39 ll Transcript , T1-3l, 41 T1-7, ll, Exhibit 2, Transcript ; T

15 15 The applications for security for costs [50] On 16 July 2010 an application was filed by AAMI and the Directors seeking orders: (a) pursuant to r 670 of the UCPR that the applicant provide security for the costs of AAMI in relation to his application for judicial review; (b) pursuant to r 772 of the UCPR in relation to his application for leave to appeal to the Court of Appeal (No 5886 of 2010) that the applicant provide security for the prosecution of the appeal. By letter dated 25 June 2010 the solicitors for AAMI and the Directors had foreshadowed such an application. The letter noted that in the course of the judicial proceedings their clients had been granted four costs orders against the applicant, that on 17 June 2010 the High Court dismissed the applicant s application for Special Leave to Appeal against three orders of the Court of Appeal and that the applicant s application filed on 7 June 2010 to the Court of Appeal had no reasonable prospects of success for the reasons outlined in earlier correspondence and was an abuse of the Court s process. The letter expressed concern that the applicant may not have sufficient financial resources to pay costs orders arising from successful opposition to the applicant s various applications. It indicated the extent of inquiries that have been undertaken which indicated that the applicant owned a 1998 Toyota Landcruiser motor vehicle and a residential property jointly owned with his wife (which is mortgaged to the ANZ Bank), that the applicant did not receive work-related income and that his only income is from Centrelink. The applicant was asked to complete a statement of financial position and advised that unless he provided reliable evidence that he could satisfy costs orders an application seeking security for costs would be brought. The applicant did not respond to the letter dated 25 June [51] The application came before P Lyons J on 30 July 2010 along with the applicant s application in relation to the joinder of Mr Bloom. The applicant s application was heard first. Surprisingly, it was not until that application was determined against the applicant that he raised an objection to P Lyons J hearing the other application. It is sufficient for present purposes to observe that, in my opinion, the matter raised by the applicant did not provide a proper basis for P Lyons J to not hear the matter. However, the applications for security for costs and for a final order under r 389A were adjourned. An interim order was made under r 389A until the adjourned hearing date. I mention these matters in order to explain the delay in the application for security for costs coming on for hearing. I also mention the course of proceedings on 30 July 2010 in order to reject the applicant s submission that, the Court having made an interim order under r 389A, AAMI and the Directors cannot litigate the same issue. [52] On 27 August 2010, shortly before the adjourned hearing date, the applicant filed an application for leave to appeal against the orders of P Lyons J which dismissed the applicant s application to join Mr Bloom. 36 I have previously expressed my view concerning the complete lack of merit of the application that was heard and determined by P Lyons J on 30 July I have concluded that the application was vexatious. I consider that the application for leave to appeal against the 36 CFI document no. 74; CA 9275/10.

16 16 dismissal of that application is without merit and is vexatious in the sense earlier discussed. [53] The order that I have made pursuant to UCPR r 389A requiring the applicant to obtain leave before bringing further applications in relation to this proceeding (including an appeal in relation to the existing proceeding) may operate to limit the costs associated with interlocutory and related applications in this matter. The applications for security for costs seek orders that security be provided in amounts based upon the affidavit of an experienced costs assessor, Mr Garrett. The parties submissions in relation to security for costs [54] The application for security for costs pursuant to r 670, or alternatively pursuant to the Court s inherent jurisdiction to make orders for security for costs, 37 is based on the submission that the Court should be satisfied that the justice of the case requires the making of the order. 38 AAMI submits that the justice of the case requires the making of an order for security because: 1. The applicant has failed to pay the assessed costs ordered by White J, has not obtained a stay in respect of the order requiring him to pay those costs and failed in his application before Alan Wilson J. 2. The applicant has failed to pay the costs ordered against him by the Court of Appeal on 24 December 2009 and by Chesterman JA on 19 February These costs have not been assessed under the rules, however, the solicitors for AAMI and the Directors provided a short-form of assessment to the applicant and asked him to accept the assessment. He made no response to that request. 3. The applicant is impecunious. 4. The litigation in this proceeding has been conducted by him in a vexatious manner. [55] The applicant submits that he does not fall into any of the categories for which security for costs can be ordered in the light of the prerequisites in r 671 and the discretionary factors in r 672. He denies that he has ever declared himself to be impecunious. He denies that there are any legitimately assessed costs that he has failed to pay. [56] The second application for security for costs is made pursuant to r 772 and is in relation to the applicant s application for leave to appeal to the Court of Appeal (CA No of 2010) against the interlocutory order of Alan Wilson J. This second application for security for costs raises similar issues and discretionary considerations as to whether the justice of the case requires an order for security for costs. An additional, relevant factor is that the applicant has already had a day in court and lost. 39 Still, the Court has an unfettered discretion whether to order As to the Court s inherent jurisdiction to make orders for security for costs see Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] 2 Qd R 187 at 190 [12]; Rajski v Computer Manufacture and Design Pty Ltd [1982] 2 NSWLR 443; Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd (2008) 67 ACSR 105;[2008] NSWCA 148. UCPR, r 671(h). Jenkins v Martin [2004] QSC 417 at [3]; Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241 at [3] and [9].

17 17 security for the prosecution of the proposed appeal, and if so, in what amount. I shall first address the principles that apply in relation to the application made pursuant to r 670, or alternatively pursuant to the Court s inherent power to order security for costs, in relation to the application for judicial review. Relevant principles security for costs [57] A Court may order pursuant to r 670 a plaintiff to give the security the Court considers appropriate for the defendant s costs of and incidental to the proceeding only if the Court is satisfied of one or more of the matters stated in r 671. If the applicant is not a plaintiff for the purposes of r 670, 40 then the matters stated in r 671 and the discretionary considerations stated in r 672 provide guidance about matters which may be relevant to the exercise of the Court s inherent jurisdiction. However, these are not exhaustive of the factors that may be taken into account in deciding whether to order security for costs pursuant to either r 670 or the Court s inherent jurisdiction. In the present case, a relevant consideration is the operation of s 49 of the Judicial Review Act 1991 (Qld) concerning the awarding of costs in a judicial review proceeding. However, s 49 does not remove the Court s general discretion to order that costs should follow the event. If, for example, the application for judicial review is dismissed because it is found to lack merit, then it would be open to the Court to order that the applicant to pay AAMI s costs of and incidental to the application. [58] In its application made pursuant to r 670, AAMI submits that the prerequisite for security for costs stated in r 671(h) is established, since the Court should be satisfied that the justice of the case requires the making of the order. In determining the application under r 670 or the alternative application to exercise the Court s inherent jurisdiction, consideration of the justice of the case requires regard to wellestablished principles governing orders for security for costs. One such general principle is that, so far as natural persons are concerned, poverty should not bar their access to justice. 41 In Harpur v Ariadne Australia Limited 42 Connolly J referred to the long-standing principle that: the door of the court should not be barred to a prospective plaintiff, resident within the realm, because he is impecunious. Thus as between residents within the jurisdiction, prosecuting what could properly be described as their own suits, the law required the defendant to accept the risk that the plaintiff might not be able to satisfy the order as to costs. [59] The difficulties presented for a defendant by a plaintiff s impecuniosity have led to rules of court and statutory powers, and to the development of principles governing the exercise of the Court s inherent jurisdiction under which a party may be ordered to provide security for costs. In Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd 43 French CJ, Gummow, Hayne, Heydon and Crennan JJ stated: In general, the bare fact of impecuniosity is not of itself reason to order a plaintiff who is a natural person to provide security for costs. But a corporate plaintiff may be ordered to provide security where it is shown that it will not be able to meet the defendant s costs A point not argued before me, and see the definition of plaintiff in Schedule 4 to the Rules. Robson v Robson [2008] QCA 36 at [34] per Muir JA. [1984] 2 Qd R 523 at 530. (2009) 239 CLR 75 at [38]; [2009] HCA 43 (footnotes omitted).

18 18 In that case, their Honours found that it was neither necessary nor appropriate to consider the extent to which those two general propositions should be elaborated or qualified. [60] Heydon J stated: Mere impecuniosity is not an absolute barrier to ordering security for costs against a natural person, although it is a factor against doing so. In particular, there are instances additional to those listed in r 42.21(1)(a)-(c) and (e) where it can be done. They include the vexatious conduct of litigation by a plaintiff who had failed to set aside an earlier judgment, instances where the plaintiff has dissipated assets and/or not paid previous costs orders (particularly costs orders in favour of the defendant), instances where the plaintiff brings a weak case to harass the defendant and instances where the plaintiff brings a case for the benefit of others, but not solely for that benefit. Hence the supposed general principle that poverty is no bar to a litigant is a severely qualified one. So is the overriding principle of open access to justice (or, more realistically, at least access to the courts). 44 Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd 45 and Weger v Boola Boola Petroleum and Natural Gas Co (No Liability) 46 were cited in support of these propositions. [61] In Green the New South Wales Court of Appeal considered the general rule that a natural person who sues will not be ordered to give security for costs, however poor he is, and qualifications to it. The discussion arose in the context of an application for costs in proceedings brought by a company liquidator. I respectfully follow the Court s analysis of the general rule. The leading judgment of Hodgson JA, with whom Basten and Campbell JJA agreed on matters of principle, confirmed that it is clearly established that the Supreme Court has a discretion to order security for costs against a natural person in circumstances falling outside those set out in the rules of court. 47 Reference was made to exceptions to the general rule that a natural person who sues will not be ordered to give security for costs, however poor he is, and to the statement of Young CJ in Melville v Craig Nowlan and Associates Pty Limited 48 that security would be ordered where not to do so would allow proceedings which would be vexatious or oppressive or an abuse of the court s process. [62] Hodgson JA quoted the following proposition that was stated by Kirby J in Merribee Pastoral Industries Pty Limited v Australia & New Zealand Banking Group Limited: 49 There is therefore no absolute rule (applicable statute apart) that the impecuniosity of a party will entitle its opponent to an order for security for its costs. Where the power to so provide exists in uncontrolled terms, it would be to fetter the jurisdiction Ibid at [91] (footnotes omitted). (2008) 67 ACSR 105; [2008] NSWCA 148. [1923] VLR 570. Ibid at [33]. [2002] NSWCA 32; (2002) 54 NSWLR 82 at [135]-[138]. [1998] HCA 41; (1998) 193 CLR 502 at [26].