NEW SOUTH WALES SUPREME COURT
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
BROWNIE, AJ
Friday, 18 February 2000
14464/89: ATTORNEY GENERAL IN AND FOR THE STATE OF NSW v SPAUTZ
JUDGMENT
1 HIS HONOUR: Section 84 of the Supreme Court Act 1970 provides:
"(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on the application of the Attorney-General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.
(2) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the person aggrieved), whether in the Court or inany inferior court, the Court may, on the application of the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.
(3) The Court may from time to time rescind or vary any order made by it under subsection (1) or (2).
(4) Where the Court has made an order under subsection (1) or (2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings."
2 On 13 June 1990, on the application of the plaintiff, McInerney J made the following orders, describing them as interlocutory orders:
"1 That until further order the defendant be restrained by himself or by his servants or agents from:
(i) instituting any legal proceedings, whether civil or criminal, in any Court in this State without the leave of this Court;
(ii) instituting any application in any legal proceedings, whether civil or criminal, already instituted in any Court in this State without the leave of this Court;
(iii) instituting any appeal in respect of any legal proceedings, whether civil or criminal, in any Court in this State without the leave of this Court.
2 That the defendant give not less than three (3) days notice in writing to the Crown Solicitor of any application for leave pursuant to the foregoing orders."
3 By notice of motion filed on 16 October 1998 the defendant moved for orders:
(a) that he be given leave to make this application;
(b) that the interlocutory orders just quoted be revoked;
(c) that the summons originally filed by the plaintiff be dismissed
for want of prosecution; and
(d) costs.
4 No question arises in respect of claim (a). The issues raised by claim (b) were debated on the basis that the orders made by his Honour on 13 June 1990 had not been entered, so that I had the power to make the orders sought: Part 40 rule 9(3)(b). However, an examination of the Court file shows that the orders were entered, on 5 July 1990.
5 The defendant raised two points under claim (b). First, he said that McInerney J was biased; and secondly, he said that his Honour made errors of law in coming to his conclusion. As to the first of these matters, it seems to me to be clear that no single judge might set aside an order made by another judge upon the basis that the second judge was biased; but in case others take a different view, I record that in my view the evidence now before me shows nothing at all in the nature of bias, no matter how that term is defined.
6 As to the second matter, the defendant submits, in summary, that his Honour erred in that he adopted the reasoning of other judges, whose reasoning has subsequently been overruled by the Court of Appeal.Again, it seems to me that I do not have the authority to decide the point, but in case this is thought to be wrong, I express the view that the defendant’s argument has no substance. Section 84 does not require a judge, dealing with an application under subsection (1), to find some prior order or orders made under subsection (2), and his Honour did not proceed on the basis that it did; and whatever test is adopted in asking whether a particular case constitutes an abuse of process, on the evidence now before me, it is impossible to say that this test was not satisfied.
7 The defendant submitted that, by reason of these two matters, the orders made were nullities, but, of course, they are orders of a superior court, and remain in force unless and until set aside.
8 I should also record that the plaintiff came to court apparently intending to resist a case that, if it was appropriate to make the orders in question in 1990, it was not appropriate to keep those orders in force in 2000. To that end, the plaintiff cross-examined the defendant on this issue, and effectively destroyed any case that the defendant might have intended to make out along these lines. However, in final address, the defendant advanced not that case, but the case that, for the reasons I have mentioned, it was never appropriate to make the order in the first place. Whether all this happened because the defendant never intended to make out this case, or whether it happened because the defendant recognised that the cross-examination had destroyed his case on the point, I do not know, but in any event, the defendant did not attempt to say that the orders made in 1990 should be set aside on this basis.
9 The defendant’s case as to claim (c) was that the plaintiff had only ever obtained interlocutory relief, and had taken no or no effective steps to bring the case on for final hearing, since 1990. The plaintiff’s case was that he had done all that needed to be done, except that he might need to resist the defendant’s cross-claim, if and when that was brought forward for trial, and might need to respond to applications made under subsection (3).
10 The right of an ordinary citizen to commence and continue legal proceedings without requiring the consent or leave of any other person is one of the foundations of a free society, as we know it in Australia. Section 84, like its analogues in other jurisdictions, provides for an extraordinary restraint upon that freedom to litigate, which restraint is only be imposed in extraordinary circumstances, upon clear proof of those circumstances; and there are always two important limitations upon the restraint: the Court may grant the leave mentioned in subsection (1) or (2), as the case may be, and, by force of subsection (3), the restraint is never permanent in effect.
11 These two limitations mean that any order under section 84 is interlocutory in nature; and that once a plaintiff seeking an order under section 84 succeeds in obtaining that order, there is nothing further that the plaintiff need do, in the sense of having to proceed to try to obtain a final or more final order.
12 I dismiss the motion, with costs.