State successful in obtaining an order under the Vexatious Proceedings Act 2005 in Queensland courts and tribunals

In the matter of Gregory Richard Cooper v Mathews [2017] QSC 64 the State was successful in obtaining an order under the Vexatious Proceedings Act 2005 (‘the Act’)prohibiting the respondent from instituting proceedings, including interlocutory proceedings, in any Queensland court or tribunal without leave of the court, except in relation to criminal proceedings brought against him, to appeal the order or to seek relief in the nature of habeas corpus.

The facts

Orders were previously made under the Act against the respondent in 2006, on application by the Brisbane City Council (BCC), which prohibited him from commencing proceedings against the BCC or its employees in Queensland. In 2015, the State was successful in obtaining vexatious proceedings orders against the respondent under s 37AO of the Federal Court of Australia Act 1976 (Cth), the provisions of which largely mirror the Act. Those orders prohibited the respondent from instituting proceedings against the State of Queensland, its agencies, statutory bodies and their employees in the Federal Court. At the time of the Federal Court hearing the respondent had collectively instituted 24 proceedings in the State and Federal Courts.

Despite these orders, the respondent was not prohibited from commencing proceedings against the State or any other party other than the BCC in the Queensland Courts. The respondent subsequently commenced four separate proceedings against the State of Queensland and other named parties between August 2015 and June 2016 in the Supreme Court of Queensland. The proceedings were instituted against numerous defendants, some of whom were included without any proper basis. The damages claimed in two of the four claims were grossly excessive and some of the causes of action has been previously litigated.

An application was filed on behalf of the Crown Solicitor seeking orders under the Act to have the respondent declared a vexatious litigant. Two of the defendants to the most recent proceeding also filed applications seeking the same orders. All three applications were heard together.

The nature and purpose of the orders sought

For a court to make orders under the Act prohibiting a person from instituting proceedings, the Court must be satisfied that the respondent is a person who has frequently instituted or conducted vexatious proceedings in Australia (‘the threshold test’).¹ Although there were two previous findings that the respondent was such a person, in the matters involving the BCC in Queensland and the State in the Federal Court, these findings were not determinative that the State and other applicants would automatically be successful in obtaining orders in this matter. The findings were, however, able to be taken into account as relevant matters when considering whether the threshold test was met and therefore whether the Supreme Court of Queensland should make an order under the Act in this case.²

Vexatious proceedings orders are not final relief but interlocutory in nature because the court exercising its original jurisdiction may vary or set aside a vexatious proceedings order.³ The nature of the orders made under the Act also do not act as an absolute prohibition because the respondent is only prohibited from making a certain type of proceeding without leave of the court.⁴ The purpose of a vexatious proceedings order is to counter the unreasonable burdens placed on opposing parties by persons who frequently institute or conduct vexatious proceedings rather than to punish the respondent.⁵

Court's findings

His Honour Justice Jackson considered each of the four proceedings commenced by the respondent between August 2015 and June 2016 and determined they were vexatious proceedings as presently constituted.⁶ It was noted that the evidence in support of the application was voluminous. His Honour also placed weight on the two previous findings that the respondent had frequently instituted or conducted vexatious proceedings in the State and Federal Courts. Ultimately, his Honour found that the threshold question under the Act was met by overwhelming facts that the respondent was a person who has frequently instituted and conducted vexatious proceedings in respect to the currently constituted proceedings.

His Honour found it was not necessary to make findings as to:

• whether the respondent instituted or conducted any of the proceedings to harass, annoy, or cause delay or detriment or for a wrongful purpose; or
• the respondent’s purpose in consistently accusing the lawyers representing the defendants of unprofessional conduct or alleging that judges who have heard his cases have been biased or corrupt.

However, His Honour found that the respondent had a noticeable pattern of repeatedly making overreaching and unjustifiable claims for damages without any pleaded basis of facts, consistently alleging conspiracies without any pleaded basis of fact, making repeated appeals mostly without success and consistently challenging the authority of the courts and the professional conduct of the lawyers who act for other parties. His Honour placed importance on these patterns being entrenched over time and being likely to continue.

His Honour was satisfied that it was appropriate to extend the order obtained by the BCC to prohibit the respondent from instituting any proceeding in Queensland without leave of the court, subject to some exceptions.

Exceptions to the order for criminal proceedings and habeas corpus relief

The scope of the vexatious proceedings order was limited by three exceptions. Firstly, that if the Act applied to criminal proceedings, the order would not require leave of the court for the respondent to make any application or appeal in those criminal proceedings. Secondly, that no leave is required to seek relief in the nature of habeas corpus, a procedural remedy for the determination of whether or not a person’s detention is lawful.

The first two exceptions were appropriately proposed by the Crown Solicitor, as the model litigant, and not opposed by any of the other parties to the application. This is because in the case of Potier v Attorney General (NSW) (2015) NSWLR 284, the court held that vexatious proceedings orders should never be made if it would affect steps taken in defence of criminal proceedings or at least only made in extraordinary circumstances. His Honour was content to accept the Crown Solicitor’s submissions and made the orders subject to the exceptions.

The exceptions were sought in this case because the question of whether vexatious proceedings orders apply to criminal proceedings is unclear. The recent case of Mahmoud v Attorney-General of New South Wales [2017] NSWCA 12 considered the question of whether such orders can or should properly restrict the right of a person accused of offences in a criminal proceeding from taking interlocutory steps in defence of that proceeding, for example, applying for bail. Whilst the court did not ultimately determine the question as to the proper reach of prohibition orders under the New South Wales Act (which mirrors the Queensland Act), the court observed that the earlier cases of Potier⁷ and Viavattene⁸had left unresolved the question of how the conduct of criminal proceedings fell within the scope of the Vexatious Proceedings Act.

In Potier, Lemming JA referred to the question of the interrelationship between the Vexatious Proceedings Act and interlocutory criminal applications arising out of a prosecution brought against a person. His Honour questioned whether such proceedings fell within the definition of ‘institute’ or ‘conduct’ of a proceeding.

The New South Wales Court of Appeal agreed with the doubts expressed in Potier. Such doubts raised valid concerns as to the proper application of s 6(2)(b) of the Act to interlocutory applications in criminal proceedings in which the subject of the order is the accused.

The third exception to the scope of the vexatious proceedings order was that the respondent should be permitted an appeal against the order because of the extent of its operation and the severe curbing effect it has on his ability to prosecute the current proceedings or start new proceedings.

Model litigant duties in vexatious orders proceedings

At the hearing of the application, the respondent attempted to assert that it was against the model litigant duties to apply for vexatious proceedings orders under the Act. The respondent’s argument was that the application was being commenced for an improper purpose, namely to prevent him from prosecuting his proceedings which he believed had merit. The respondent further asserted that the model litigant duties affected whether his current proceedings were vexatious.

Jackson J held that ‘nothing is added to the analysis of the questions for decision in the present case by viewing those questions through some form of prism based on the duties of a model litigant’.⁹ In other words, the model litigant duties did not add anything to the question of whether or not the respondent’s conduct met the threshold test of being a person who has frequently instituted or conducted vexatious proceedings in Australia. His Honour also cited with the approval the case of Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345, which held that procedural rules apply uniformly and are not modified against model litigants. In this sense, model litigants are not prevented from seeking vexatious proceedings orders where it is appropriate to do so.

Points to note

• Model litigants can apply for vexatious proceedings orders under the Act where it is appropriate to do so.
• Orders sought should appropriately seek exceptions in relation to the defence of criminal proceedings and seeking relief in the nature of habeas corpus.
• The evidence required to substantiate the threshold test to successfully obtain an order under the Act is extensive.
• Previous orders made against a respondent under the Act are not determinative of an order being made in a present application, but are persuasive when considering whether the respondent is a person who has frequently instituted or conducted vexatious proceedings in Australia.

^{1 Vexatious Proceedings Act 2005 (Qld), s 1(a).}

^{2 Gregory Richard Cooper v Mathews [2017] QSC 64, [12]-[17].}

^{3 Gregory Richard Cooper v Mathews [2017] QSC 64, [10].}

^{4 Ibid.}

^{5 Gregory Richard Cooper v Mathews [2017] QSC 64, [14].}

^{6 Gregory Richard Cooper v Mathews [2017] QSC 64, [101].}

^{7 Potier v Attorney-General (NSW) [2015] 89 NSWLR 284}

^{8 Viavattene v Attorney-General (NSW)[2015] 89 NSWLR 44}

^{9 Gregory Richard Cooper v Mathews [2017] QSC 64, [79].}

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}