Federal Court of Australia

Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Ms Venetia Louise Storry be prohibited from instituting any proceeding in the Federal Court of Australia (without making an application for leave to institute a proceeding in accordance with s 37AR of the FCA Act and obtaining leave).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

A    INTRODUCTION

1    Section 78 of the Judiciary Act 1903 (Cth) relevantly provides that in every Court exercising federal jurisdiction, “the parties may appear personally”.

2    It has become increasingly common for litigants in this Court to exercise their right to appear in person. As was observed by Richard Morehead in his article “The Passive Arbiter: Litigants in Person and the Challenge to Neutrality” (2007) 16(3) Social & Legal Studies 405 (at 406), litigants in person often disturb the normal conventions of the courtroom and substantially challenge the well-ordered roles of judges and lawyers in that they are “classic outsiders – legally uninformed in a technical and rarefied atmosphere, unaware of procedure, often unknowingly in breach of convention”: see also the Hon M J Beazley AO, “Communicating the law: self-represented litigants in the Court of Appeal” (Speech, NCAT Annual Conference, 29 October 2001) (at 1).

3    Most self-represented litigants behave courteously and are often forced to do so because of circumstances outside their control and sometimes, of course, they present valid claims and defences. But a few self-represented litigants, unrestrained by the norms regulating the professional conduct of lawyers and aggrieved by a perceived wrong, become serial litigants obsessed with seeking vindication of their position and in doing so mount, often repeatedly, arguments which would never be advanced by a responsible practitioner. This phenomenon has occasioned significant problems for this Court in the efficient exercise of its original and appellate jurisdiction.

4    Any informed observer would conclude the incidence of this phenomenon has increased at the same time as a number of other developments in modern litigation, including: first, the increased demand on judges occasioned by the complexity and size of cases; secondly, the size and scale of the evidentiary material often placed before courts; and thirdly, the reality that courts are an arm of government dependent upon public resources at a time of increased focus on the efficient allocation of those resources.

5    As Lee J pointed out in Kadam v MiiResorts Group 1 Pty Ltd (No 4) [2017] FCA 1139; (2017) 252 FCR 298 (at 300 [2]), the response to these and related developments in litigation generally has caused what might be described as a revolution in case management.  Over the last 20 years, almost every Australian jurisdiction has introduced a provision by either legislation or by way of Rules of Court, setting out the “overriding” or “overarching” purpose of procedural rules: see Federal Court of Australia Act 1976 (Cth) (FCA Act), Pt VB; Civil Procedure Act 2005 (NSW), ss 56–58; Supreme Court Civil Rules 2006 (SA), r 3; Court Procedure Act 2004 (ACT), s 5A (formerly Court Procedures Rules 2006 (ACT), r 21); Uniform Civil Procedure Rules 1999 (Qld), r 5; Civil Procedure Act 2010 (Vic), ss 7–8; Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 1.14; Supreme Court Rules (NT), r 1.10.

6    The stark contemporary reality is that there are an increasing number of controversies being brought before the Court and a finite number of judges able to manage and determine those matters. Every day a judge of the Court is required to deal with a vexatious proceeding is another day the judge is prevented from using the judicial power of the Commonwealth to quell a real dispute between parties who have invoked the Court’s jurisdiction.

7    The importance of s 37M(3) of the FCA Act in the work of the Court cannot be overstated. It requires judges of the Court to interpret and apply any power conferred by the civil practice and procedure provisions in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible: see also s 37M(1). A fundamental aspect of doing more than paying lip service to these case management objectives is taking the necessary steps to ensure that the whole of the Court’s business is managed efficiently. The aim of the overarching purpose provisions is undermined if the Court is passive and refrains from taking active steps to prevent the abuse of the Court’s processes when such abuses become manifest. This involves judges taking a proactive role, where appropriate, in identifying circumstances where the processes of the Court are being repeatedly or frequently abused by a pattern of apparently vexatious proceedings.

8    In Storry v Parkyn [2024] FCAFC 67 (appeal judgment) (at [36]–[43]), we noted that the appellant in this case, Ms Storry, an undischarged bankrupt, is an indefatigable litigant who has been involved in many proceedings. We further noted that the proceedings the subject of the appeal judgment and her other litigious endeavours have consumed considerable time and resources of courts and that we had come to the preliminary view that it may be the Court could be satisfied that Ms Storry has frequently instituted or conducted vexatious proceedings in Australian courts and tribunals, and if this was established, that a vexatious proceeding order could follow.

9    Having reached this preliminary view, and as foreshadowed in the appeal judgment, a proposed order was made by the Full Court, on its own motion, in the following terms:

Pursuant to s 37AO(2)(b) of the [FCA Act], Ms Venetia Louise Storry be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act.

10    The orders of the Full Court also provided that, in addition to filing any material upon which Ms Storry intended to rely to oppose the proposed order, she notify the Registry in writing as to whether she wished to have an oral hearing in relation to whether the proposed order ought to be made.

11    Ms Storry indicated she wished to avail herself of the opportunity to have an oral hearing and such a hearing was convened. Given the nature of the proceeding, the Full Court considered it appropriate that an amicus curiae be appointed, and written and oral submissions were received by both Ms Storry and the amicus.

12    For the following reasons, we have determined that it is appropriate that a vexatious proceeding order be made against Ms Storry.

B    THE APPLICABLE LAW

13    Section 37AO of the FCA Act empowers the Court to make a vexatious proceedings order against a person, including an order that the person not institute proceedings in the Court. The Court (which may be constituted by the Full Court: see s 14(1) of the FCA Act) may make a vexatious proceedings order on its own initiative, but must not make such an order without hearing the person or giving the person an opportunity to be heard.

14    It is worth setting out s 37AO in full:

37AO    Making vexatious proceedings orders

(1)    This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings     in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a     vexatious proceedings order or who is covered by paragraph (a), has     instituted or conducted a vexatious proceeding in an Australian court     or tribunal.

(2)    The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the     Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or     proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the     person.

Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)    The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a)    the Attorney‑General of the Commonwealth or of a State or Territory;

(b)    the Chief Executive Officer;

(c)    a person against whom another person has instituted or conducted a     vexatious proceeding;

(d)    a person who has a sufficient interest in the matter.

(4)    The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)    An order made under paragraph (2)(a) or (b) is a final order.

(6)    For the purposes of subsection (1), the Court may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in     any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person’s overall conduct in proceedings conducted in any     Australian court or tribunal (including the person’s compliance with     orders made by that court or tribunal);

    including proceedings instituted (or attempted to be instituted) or conducted,     and orders made, before the commencement of this section.

15    A number of terms used in s 37AO are defined by s 37AM(1). The relevant definitions of those terms are as follows:

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

(a)    for civil proceedings—the taking of a step or the making of an     application that may be necessary before proceedings can be started     against a party; and

(b)    for proceedings before a tribunal—the taking of a step or the making     of an application that may be necessary before proceedings can be     started before the tribunal; and

(c)    for criminal proceedings—the making of a complaint or the obtaining     of a warrant for the arrest of an alleged offender; and

(d)    for civil or criminal proceedings or proceedings before a tribunal—the     taking of a step or the making of an application that may be necessary     to start an appeal in relation to the proceedings or to a decision made     in the course of the proceedings.

proceeding:

(a)    in relation to a court—has the meaning given by section 4; and

(b)    in relation to a tribunal—means a proceeding in the tribunal, whether     between parties or not, and includes an incidental proceeding in the     course of, or in connection with, a proceeding.

proceedings of a particular type includes:

(a)    proceedings in relation to a particular matter; and

(b)    proceedings against a particular person.

vexatious proceeding includes:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to     cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without     reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass     or annoy, cause delay or detriment, or achieve another wrongful     purpose.

vexatious proceedings order means an order made under subsection 37AO(2).

16    As noted above, the consequences of a vexatious proceedings order may include that the person the subject of the order is precluded from instituting proceedings, or proceedings of a particular type, without the leave of the Court: s 37AQ(1)(a) of the FCA Act. As Wheelahan J observed in Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 (at [6]), the Court’s power to grant such leave is fettered, because leave may be granted only if the Court is satisfied that the proceeding is not a vexatious proceeding: s 37AT(4).

17    As was noted in the appeal judgment, a vexatious proceeding order has been described as an “extreme measure” (at [39]). Similarly, as the New South Wales Court of Appeal (Beazley P, Emmett JA and Sackville AJA) explained in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 (at [56]):

… [A]n order restricting a person’s access to the courts is a very serious matter and thus an order under the VP Act is not to be made lightly. The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits.

18    But although the order is, by its nature, exceptional and serious, these and similar observations in the cases should not mean that a judge should shrink away from making a vexatious proceedings order if the preconditions to it being made are established and if it is appropriate to do so. Although an order restricting a person’s access to the courts is not to be made lightly, the extent of the increasing disruption to the efficient management of the Court’s business caused by allowing vexatious proceedings to be instituted and maintained without check is also a serious matter. Further, it should be recognised that the consequence of a vexatious proceedings order is not to impose an insuperable barrier to litigation by a vexatious litigant entirely, but to control it by imposing a requirement for leave.

19    As Wheelahan J further observed in Fokas (at [36]), by allowing for such control, the relief authorised by the legislation reinforces the power of the Court “to protect its own processes against unwarranted usurpation of its time and resources and to avoid loss caused to those who have to face proceedings that lack substance”: see Jones v Skyring (1992) 109 ALR 303 (at 312 per Toohey J). As the Full Court (Besanko, Logan and McKerrracher JJ) stated in Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535 (at 545 [31]):

Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament, via the Vexatious Actions Act 1896 (UK) (59 & 60 Vict. C. 51), of a need for a power to effect just such a balance.

20    As is evident from the terms of s 37AO(1)(a), the four cumulative conditions necessary to engage its operation are that the person has: (1) frequently; (2) instituted or conducted; (3) vexatious proceedings; (4) in Australian courts or tribunals.

21    Although it was not in dispute before us, it is appropriate to record that we agree with the views expressed by Wheelahan J in Fokas (at [41]–[66]) that the Court’s evaluation as to whether the section is engaged is framed by s 37AO(6), which expressly authorises the Court to have regard to: other proceedings; orders made in other proceedings; and the conduct of those proceedings, and that s 91 of the Evidence Act 1995 (Cth) (which provides that evidence of the decision, or of a finding of fact in another proceeding, is not admissible to prove the existence of a fact that was in issue in that proceeding) is not infringed by relying on orders and reasons for judgment in other proceedings for the purposes of considering whether a proceeding is vexatious (and hence whether s 37AO(1) is engaged). In short, this is because the judgments and orders are not relied upon to prove a fact in issue in those other proceedings but rather (as s 37AO(6) authorises) to show the outcome of the proceedings, and the course they had taken, and to record the person’s conduct in those proceedings for the statutory purpose of characterisation.

C    THE NATURE OF THE DISPUTE

22    For reasons that will become obvious, Ms Storry did not dispute she had frequently instituted or conducted various proceedings in Australian courts and tribunals.

23    The real issues are whether: (a) proceedings have been instituted by Ms Storry that could be properly characterised as being vexatious proceedings as that term is defined and, in particular, whether the proceedings constituted an abuse of process or were proceedings instituted or pursued without reasonable grounds; and (b) if so, whether this has occurred frequently. We will come back to what is meant by the word “frequently”.

D    THE RELEVANT PROCEEDINGS

24    The amicus, Mr Mack of counsel, helpfully produced a table of proceedings (Table) listing some of the litigation Ms Storry has been involved over the last seven years (including 19 decisions since 2021). It is convenient to set out the Table below together with extracts from those cases or submissions made by the amicus in relation to each of those proceedings. Some of the proceedings identified below are interlocutory; this is because an interlocutory proceeding may be a “proceeding” because, as s 4 of the FCA Act provides, a proceeding includes an incidental proceeding in the course of, and in connexion with, a proceeding.

25    We will refer to each proceeding below by reference to its number in the reference column of the Table. The amicus submitted that leaving aside three cases in the Table (Proceedings 9, 15 and 22), the remaining proceedings identified were each capable of being characterised as a “vexatious proceeding” but, as will become evident, it is unnecessary to reach a concluded view as to the characterisation of each of the proceedings.

26    In addition to the proceedings identified in the Table prepared by the amicus, the Full Court expressed that it wished to receive submissions from Ms Storry as to whether the two proceedings the subject of the appeal judgment were also vexatious. These were: (1) Venetia Louise Storry v Nic Parkyn (QUD 422 of 2023) (Proceeding 25); and (2) Venetia Louise Storry v Registrar Thomas Stewart (QUD 49 of 2024) (Proceeding 26).

E    MS STORRY’S SUBMISSIONS

27    It is appropriate to identify Ms Storry’s submissions in relation to each proceeding (to the extent they were intelligible). This is not only because it identifies Ms Storry’s contentions as to each of the proceedings which we later find to be vexatious, but also because the submissions made by a litigant in response to an application for a vexatious proceedings order may be relevant to the question of whether such an order should be made: Attorney-General (NSW) v Mahmoud [2015] NSWSC 899 (per Rothman J at [21]). 

28    Despite its length, this summary of submissions demonstrates how difficult it was to understand Ms Storry’s contentions. They were largely directed to what she perceived were the underlying merits of each proceeding and amounted to general complaints as to the perceived source of her difficulties, rather than addressing the repeated criticisms of judicial and other officers as to the apparent lack of reasonable grounds for her contentions made in the various proceedings, being comments helpfully summarised in the Table.

Proceeding 1

29    This matter concerns what Ms Storry submits was her first judicial review. Ms Storry raises two submissions regarding this matter: first, that the judge was biased; and secondly, that the judge acted in error. Regarding the first, Ms Storry alleges that the way in which this matter was timetabled prejudiced her because it led to her bookwork being seized, and indicated bias on the part of the judge. Secondly, Ms Storry believes the judge made an error in relation to the Storry Real Estate trust account in considering that the account was created or opened by her in an attempt to do “something strange”, rather than by what Ms Storry contends was a bank error. Ms Storry says that there has been an acknowledgment that the account was opened by the bank (T15.27–16.04).

Proceeding 2

30    Ms Storry submits that Proceeding 2 relates to a decision made by the District Court of Queensland (QDC) which dismissed her application for leave to appeal. Ms Storry says that the decision was incorrect because she had alleged that an abuse of process had occurred, and that “it was implied in general that if you bring an abuse of process application before the Court, they should hear it first, before any evidence is lead” (T16.35–37). Ms Storry proceeded to submit that the dismissal application was now being heard separately, although she was unclear whether “this [was] contrary to the judgment of Mullins P” (T16.31–45). It not entirely clear what Ms Storry meant by this submission.

Proceeding 3

31    This proceeding concerns an application for an extension of time for leave to appeal a decision of a Queensland Civil and Administrative Tribunal (QCAT) member handed down on 26 April 2022. In relation to this proceeding, Ms Storry contends that it was agreed the merits review would be finalised before any decision was made in relation to the strike out application. Contrary to this agreement, Ms Storry alleges that the strike out application was decided first on the papers. After the determination of the strike out application, Ms Storry submits that the issue of the Storry Real Estate Agency opening a trust account was raised. Ms Storry believes that the Office of Fair Trading (OFT) were using the opening of the trust account as grounds to discipline her in circumstances where they had knowledge that the account was created in error by the bank, and where they subsequently granted her a licence (T17.01–44).

Proceedings 6 and 7

32    Given that Proceeding 5 involves an appeal and that Proceeding 4 involves an appeal to Proceeding 5, it is convenient to deal with Proceedings 6 and 7 first. Proceedings 6 and 7 relate to the appeal of an Administrative Appeals Tribunal (AAT) decision, which was the review of the Business Licensing Authority’s (BLA) refusal to grant Ms Storry an estate agent’s licence. Ms Storry addressed these proceedings together.

33    Ms Storry alleges, to put it in her terms, that she had made an application for utility because she was deemed bankrupt, and while someone who is deemed bankrupt cannot hold a real estate licence, they can hold a sales representative licence. While Ms Storry argues that this was not final, she says that it did require that the pro forma, along with its attachment, be corrected. This is because Ms Storry believed that she was unable to apply for registration when there were decisions against her stating that she had put in a false statutory declaration, as this would mean she was not a fit and proper person (T19.15–24).

Proceeding 5

34    This proceeding concerns an application for leave to appeal the summary dismissal of an appeal from the AAT, which was ultimately dismissed. Ms Storry alleges that in her application which contained a pro forma, she attached information about the appeal to BLA. Ms Storry believes that the judge did not have the attachment before her, because reference was only made to an email sent to BLA. She believes that the judge thought she had made a false statement, but that when viewing the attachment which contained information about the appeal, it is clear that her statement was not false (T18.44–19.09).

Proceeding 4

35    Proceeding 4 relates to an application for judicial review of a Registrar’s decision to refuse to accept documents for filing, which was ultimately dismissed. Ms Storry alleges fraud on the basis that the directions hearing of the QCAT appeal went well into October 2021, so it was impossible for the actual merits review application with the attachment to be false or unsuccessful, as the QCAT strike out application was still under directions notice at the time and all relevant evidence was not at hand. Therefore, the ground of appeal before the Federal Court regarding the AAT decision was that she had never made a false statement. She believes that her case had underlying merit and it was wrong to characterise her application for judicial review as lacking merit. This is because “others” had brought a faulty dismissal application against her, in bad faith (T18.4–45; T46.30–38).

Proceeding 8

36    This proceeding relates to an application for the lifting of a stay order and an application for cross-vesting to the Federal Court. Ms Storry requested that the proceeding be transferred to the Federal Court because the trustee did not provide grounds for electing to discontinue a proceeding relating to an application for an extension of time to appeal a decision concerning property damage and associated costs resulting from a vehicle collision, and Ms Storry wanted that issue to be heard as an associated matter to an application to have a sequestration order set aside so that the relevant judge would have the “full story”. Ms Storry argues another judge said that she had the right to challenge the decision of the trustee in abandoning her application and, later on, the QCAT merits review in the Federal Court. She further submits that there is an acknowledgement in the transcript that the respondents never filed any material on Ms Storry (T8.46–9.33).

Proceeding 10

37    Proceedings 10 and 11 follow the judgment in the Federal Court, Storry v Weir [2022] FCA 794 (Proceeding 12), which dismissed an appeal against a decision of the Federal Circuit and Family Court of Australia (FCFCOA) and a stay application concerning sequestration orders made in Proceeding 15. Ms Storry initiated this proceeding on the basis that the judge made a discretionary decision not to include the OFT as a party to the proceeding, but that this decision was not reflected in the judgment. Given, as Ms Storry puts it, the judge included the OFT as if they were a party to the proceeding in the judgment delivered, Ms Storry argues that the decision should be rescinded because it was obtained by fraud (T20.14–20.31, 41.29–42.16).

Proceeding 11

38    This proceeding was an application to have a judge disqualify himself from the hearing. Ms Storry made the submission that the findings in this proceeding did not reflect the grounds upon which the application was made, which Ms Storry contends were privately communicated to the Registry. Ms Storry disclosed that the private grounds supporting the recusal application were that the judge had sent the “fixation squad” to her door. Ms Storry submitted that the “fixation squad” were sent because the judge believed that she was visiting his house. Further, Ms Storry said that she had already asked the judge to recuse himself because the judge’s associate was another judge’s child, and there had been related issues regarding the leasing of a house owned by Ms Storry (T20.35–22.19).

Proceeding 12

39    Proceeding 12 concerns an appeal against a decision of the FCFCOA and a stay application, both of which were ultimately dismissed. The submissions made by Ms Storry in relation to this proceeding were particularly difficult to follow, but Ms Storry submits that this proceeding has been “superseded” by a decision of Bond J. She argues that Bond J made various concessions relevant to the merits of her case (T23.25–37).

Proceeding 13

40    This proceeding was an appeal of the dismissal of the strike out application heard on the papers by QCAT, referred to when discussing Proceeding 3. Ms Storry contends that she asked QCAT to finalise the merits review for the purpose of efficiency. Ms Storry submits that she was denied natural justice because the finalisation of the QCAT merits review did not occur before the decision to strike out her application against the disciplinary action, which amounted to an abuse of process. She argues that if this had been finalised, they would have known the true nature of the strike out application (T23.45–24.11).

Proceeding 14

41    Proceeding 14 is an application for the stay of the sequestration order that resulted from Proceeding 15, which was ultimately dismissed. Ms Storry again argues that this decision has been “superseded” by a decision of Bond J (T24.20–47) and that the proceeding connects to Proceeding 12.

Proceeding 16

42    Proceeding 16 concerns an application for transfer to another forum, which was ultimately dismissed. This proceeding regards Ms Storry’s liability to pay nine claimants from the claim fund of her business, following the decision of the OFT. Ms Storry contends that the claims were belonging to amounts frozen by the OFT and that the claims did not “belong” to money missing from her late father’s trust account, and that this was what the trustee had abandoned. On this basis, Ms Storry submits that the claims were invalid, and that there has been no real conclusion as to the amount left in the trust. Further, it is said by Ms Storry that the matter was decided prematurely (by saying that it did not have merit) and that “the submissions” of Soroya Annells (who stated that the money was frozen) were not “read” (T25.12–21).

Proceeding 17

43    Similarly, Proceeding 17 relates to the OFT’s directions regarding the freezing of certain accounts and the appointment of a receiver. Ms Storry believes she had grounds for judicial review of the decision to freeze the account and appoint a receiver. She also submits that the appointment of a receiver was on false grounds, as it was incorrect that the money was missing. Further, Ms Storry believes that she had grounds for merits review on the basis that her bookwork was seized by the respondents, and she was left with no evidence which the decision-maker was not originally aware of. Ms Storry submits that the applications were dismissed on a false basis because the judge misunderstood the difference between merits review and judicial review, which lead him to incorrectly believe that the issues had “been gone through six times” (T25.31–27.16).

Proceeding 18

44    Ms Storry contends that this proceeding was an application for the stay of a bankruptcy notice. Ms Storry requested fresh evidence to be heard before a civil appeal in the QDC was heard, so that it would not affect its decision. Ms Storry submits that the judge said that he did not have jurisdiction to grant the stay of the proceedings, and that it was on this basis that the stay was not granted. Ms Storry contends that the stay application was not dismissed on the merits, but rather was dismissed because the relevant judges involved could not agree on the issue of jurisdiction (T27.33–28.21).

Proceeding 19

45    Proceeding 19 concerns an application for leave to appeal, which Ms Storry submits relates to Proceeding 17. In relation this proceeding, Ms Storry clarifies that she had authority to act on behalf of her father’s business, and that her merits review was refused on the false understanding that she did not have such authority. Further, Ms Storry submits that there was no finalisation of her father’s trust account because there was a merits review claim in QCAT which the trustee had abandoned. Because these claims had not been finalised, Ms Storry reasoned that there was no basis to discontinue or dismiss judicial or merits review applications made by her (T28.30–29.36).

Proceeding 20

46    This proceeding was said to be an appeal to the AAT for an urgent review of the decision made by the BLA refusing Ms Storry’s application for an estate agent licence. Ms Storry argues that the BLA could not discriminate against her, relying upon s 51 of the Constitution (also citing Gageler J in Victorian Building Authority v Andriotis [2019] HCA 22; (2019) 268 CLR 168). She contends that a mutual recognition should only be “disallowed in instances where a false statutory declaration has been provided”. She argues that her statutory declaration was not false as her QCAT directions were ongoing (with her QCAT appeal continuing well into October 2021, after this judgment was delivered). She further submits that this dismissal application prejudiced her, contributed to her bankruptcy and that “the other side sought to benefit by having a utility decision heard in their favour, when they had themselves caused delay by bringing a false dismissal application” (T29.42–30.03; T45.41–46.04).

Proceeding 21

47    Ms Storry argues this proceeding concerns an application for leave to appeal a decision dismissing Ms Storry’s application for judicial review. The application related to the appointment of a receiver and the moving of funds from the trust account to the claims fund. Ms Storry submits that there was evidence missing on her USB and that her books had been removed. She claims that the trustee’s affidavit stated that the OFT attempted to have $28,000 given to them from the trust account “which was false and a gross over-estimation”. Further, she believes that this was an action under the Fair Trading Inspectors Act 2014 (Qld) and that the Court mistakenly believed it did not have jurisdiction. She argues that the application was dismissed on the false understanding that she was bringing an application for judicial review, when in fact she was seeking a review under the Act (T30.15–23).

Proceedings 23 and 24

48    Ms Storry addressed these proceedings together. Both relate to appeals of a conviction in the Magistrates Court, but in the Supreme Court of Queensland and the QDC respectively. Ms Storry asserts that these decisions have also been “superseded” by Bond J’s decision. It is now before Bond J as relevant evidence was not before the courts in the preliminary hearings (T30.35–31.08).

Proceedings 25 and 26

49    Ms Storry also addressed Proceedings 25 and 26 together. Ms Storry raised jurisdictional questions about the correct forum for the “process of rescission due to fraud”. She argues that she was instructed by a judge that she needed to go to the High Court for an application for rescission because an application under r 39.05(b) of the Federal Court Rules 2011 (Cth) (FCR) “cannot be brought” in the Federal Court. Ms Storry also referred to Commissioner of Taxation v Rawson Finances Pty Ltd [2023] FCA 617; (2023) 116 ATR 458 which, she argues, is consistent with Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12; (2018) 264 CLR 165. Rawson was said to be heard under FCR 39.05(b) in the original jurisdiction of the Court, after an appeal had been heard in the Full Court, which is the opposite of what Ms Storry was instructed to do. Therefore, there was confusion concerning the proper jurisdiction for the proceeding. She further submits that there had been fresh evidence evincing actual fraud committed by the trustee in their affidavit (T42.35–45.37).

F    VEXATIOUS PROCEEDINGS?

50    Having identified proceedings commenced in recent times and noted in summary, as best we can, what Ms Storry has to say about them, it is necessary to determine whether Ms Storry has commenced proceedings which were vexatious, in that they constituted an abuse of process or were instituted or pursued without reasonable grounds. In coming to a conclusion, the Court is not to make findings about the facts in issue (to which Ms Storry’s submissions were largely directed) but rather, is to take account of the record and make an assessment as to its character.

51    It would unnecessarily add to this judgment to deal with each proceeding separately. The statutory conditions that Ms Storry has commenced vexatious proceedings and has done so frequently is amply satisfied by referring to only some of the proceedings in the Table.

52    It is worth recalling that Ms Storry is an undischarged bankrupt. As we noted in the appeal proceeding (at [44]–[45]), a sequestration order was made in relation to Ms Storry on 18 March 2022 and, upon that order, all her property vested in her trustee in bankruptcy, including any legal or equitable choses in action, and any other property, other than that exempt under statute.

Proceeding 1

53    Contrary to Ms Storry’s submissions, this application heard before Dalton JA was made in another interlocutory application in a finalised appeal concerning a traffic accident following the 2021 dismissal of an application for leave to appeal.

54    The substantive application was an attempt to reagitate matters already dealt with by the President of the Court of Appeal and “to attack something he said in his reasons”. Dalton JA sought to have the substantive application dealt with on the papers, which was met with the response by Ms Storry that she wanted her Honour “to recuse [her]self for bias”, being an application for recusal, which was manifestly without reasonable grounds for reasons explained in Storry v Commissioner of Police [2024] QCA 66. The proceeding was vexatious.

Proceeding 2

55    This was an application to the Queensland Court of Appeal (QCA) for leave to appeal orders of the QDC (following an appeal to that Court arising from the refusal of an Acting Magistrate of the Magistrates Court of Queensland to grant an adjournment of a summary hearing). The reasons of the QCA (Storry v Australian Financial Security Authority [2024] QCA 55) amply demonstrate: (a) the attempt by Ms Storry to include irrelevant assertions in the leave proceeding; and (b) the wholly misconceived nature of her arguments to the QCA – the application was made without reasonable grounds and was vexatious.

Proceeding 3

56    Notwithstanding she was an undischarged bankrupt, Ms Storry (in her own right), and a company she asserted she controlled, Storry Real Estate Pty Ltd, sought leave to appeal from the decision of a judicial member of QCAT more than eleven months out of time. Such appeals are confined to questions of law. Even leaving aside questions as to bankruptcy, it is apparent from the reasons of Morrison JA (with whom Dalton JJA and Fraser AJA agreed) that a miscellany of meritless arguments were put forth by Ms Storry, and that she was unable to articulate a coherent basis for other applications made: see Storry v Chief Executive, Department of Justice and Attorney General [2024] QCA 22 (at [19]–[20], [27]). This can also be characterised as a vexatious proceeding lacking reasonable grounds.

Proceeding 7

57    In Storry v Business Licensing Authority (No 2) [2023] FCA 102, Thomas J held (at [66]–[68]) that it was appropriate to halt proceedings as, following a dismissal of the appeal against the sequestration order made against Ms Storry, the proceeding (the details of which do not need to be recounted) amounted to an abuse of process as they dealt with an issue that had become moot, and because any order made would be futile. This was a vexatious proceeding.

Proceeding 8

58    This was further litigation commenced by Ms Storry after becoming a bankrupt and later pursued after the unsuccessful appeal against the sequestration order. Ms Storry sought to appeal an order made by the QDC dismissing a claim for property damage that had been discontinued by her trustee, Mr Clout: see Storry v Weir [2023] QCA 4 (at [4], [6] per Mullins P). Mullins P usefully set out Ms Storry’s uniformly unsuccessful endeavours in this Court concerning her sequestration order (at [12]):

She was unsuccessful in Storry v Weir [2022] FCA 362 in applying for interim orders to stay the sequestration order made by Judge Egan. Her appeal against the making of the sequestration order was then dismissed by Thomas J on 7 July 2022: Storry v Weir [2022] FCA 794. Ms Storry then made a further application seeking a stay of the sequestration order in connection with an application to set aside the judgment of Thomas J dismissing her appeal against the making of the sequestration order on the basis it was obtained by fraud. In a lengthy decision given on 15 November 2022 that traversed each of the allegations, Thomas J concluded that none of the grounds raised by Ms Storry addressed or satisfied the requirements which must be met in the exercise of the jurisdiction to set aside the judgment dismissing her appeal on 7 July 2022: Storry v Weir (No 2) [2022] FCA 1360. Ms Storry then sought to file an application to challenge the dismissal of her application to set aside the judgment given on her appeal. Logan J concluded on 30 November 2022 that the Federal Court had no jurisdiction to entertain an application for leave to appeal against the judgment given on 15 November 2022 and that the Registrar should be directed not to accept the notice of appeal for filing: Storry v Weir [2022] FCA 1484.

59    Although for reasons unnecessary to detail, Mullins P considered there was “no point” in dealing with Ms Storry’s application for leave to appeal against orders which were made on the basis that Ms Storry was bankrupt (at [14]). The misconceived and unreasonable basis upon which Ms Storry sought to lift the stay of proceedings in the QCA (which turned on the operation of s 60(4) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act)) is evident (at [12]). The pursuit of this proceeding, at the very least after the dismissal of her appeal against the making of the sequestration order, was without reasonable grounds and it amounted to a vexatious proceeding.

Proceeding 10

60    In one of the cases referred to in the extract above, Storry v Weir (No 2) [2022] FCA 1360, Thomas J set out, in very comprehensive detail, the unreasonable and infirm nature of various allegations of fraud made by Ms Storry in support of an application seeking an order to set aside a judgment. This was also a vexatious proceeding.

61    For completeness, it can be noted that it appears a further interlocutory application filed after judgment was apparently made for a “stay of her sequestration order” (a wholly misconceived application for reasons explained in Mehajer v Weston (Trustee), in the matter of Mehajer [2018] FCA 608; (2018) 16 ABC(NS) 135 (at [9] per Lee J)) but it is unnecessary to characterise this further interlocutory application as vexatious.

Proceeding 11

62    In Storry v Business Licensing Authority [2022] FCA 1321, Thomas J dealt with and dismissed another unreasonable application for the disqualification of a judge on the basis of apprehended bias (as is evident from the submissions summarised above (at [38])). There was no reasonable basis for suggesting a discernible logical connexion between the matters raised by Ms Storry and a feared deviation from the course of deciding the underlying proceeding on its merits. This application amounted to a vexatious proceeding.

Proceeding 17

63    As Sofronoff P explained in Storry v Office of Fair Trading [2021] QCA 255 (at [8]), this proceeding amounted, in substance, to an attempt by Ms Storry to relitigate the propriety of certain administrative decisions for the sixth time. Even leaving aside the characterisation of earlier attempts at re-litigation, this proceeding plainly amounted to an abuse of process and was a vexatious proceeding.

Proceeding 23

64    In Storry v Commissioner of Police [2018] QCA 291, Bond J (with whom Sofronoff P and McMurdo JA agreed) dealt with an application for leave to appeal from the QDC which had dismissed an appeal from Ms Storry’s conviction in the Brisbane Magistrates Court for failing to give way at a stop sign, which resulted in a fine of $475, and an order that she pay court costs and witnesses expenses. His Honour concluded (at [26]) that Ms Storry did not identify any reasonable argument that there was a factual error which should be corrected. A review of the reasons establishes the application was without reasonable grounds and was vexatious.

Proceeding 26

65    This proceeding was dealt with by this Court in the appeal judgment (at [24]–[35]) and was described as the “original jurisdiction proceeding”. For reasons we have explained, there was not a reasonable ground for challenging the decision of the Registrar to reject the relevant interlocutory application for filing on the basis that it was an abuse of process and was otherwise vexatious or frivolous. The original jurisdiction proceeding was a vexatious proceeding.

66    It is unnecessary to deal with the significant number of other proceedings Ms Storry has instituted or conducted in Australian courts and tribunals. Even if we were wrong about the characterisation of some of the proceedings identified above as vexatious, this would not matter. The meaning of the word “frequently” is relative, and must be viewed in context: Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 (at [46]–[49] per Beazley P, Emmett JA and Sackville AJA) and the number of proceedings may be small if a litigant attempts to re-litigate or re-agitate issues previously determined: Fuller v Toms (at 545 [33]–[34]). The recurring nature of Ms Storry’s complaints in various fora emerges plainly from the record.

67    It is evident that by reference to the proceedings identified above, or some of them, Ms Storry has, within the meaning of s 37AO(1)(a) of the FCA Act: (1) frequently; (2) instituted or conducted; (3) vexatious proceedings; (4) in Australian courts or tribunals.

G    WHETHER AN ORDER SHOULD BE MADE

68    Having established that all pre-conditions for the making of a vexatious proceedings order are present, we turn to the question of whether we are satisfied that the Court should make such an order.

69    A vexatious proceedings order can be made by a Full Court. Even leaving aside that the reference to “Court” in s 37AO (by reason of the definition of “Court” and how it may be constituted in ss 4 and s 14(1)) extends to a Full Court, s 28(1)(b) of the FCA Act relevantly provides that in the exercise of its appellate jurisdiction, the Court may make such order, as, in all the circumstances, it thinks fit.

70    But having noted this, we are mindful that such an order made by a Full Court would preclude any appeal without special leave being granted (although this consideration is incomplete without also recognising that there is some apparently conflicting intermediate court of appeal authority, summarised by Jackman J in Krejci in his capacity as liquidator of ENA Development Pty Ltd (in liq) v Sebie [2023] FCA 884 (at [53]–[55]), as to whether leave is required to appeal vexatious proceedings orders at the intermediate court of appeal level).

71    We also recognise that an order which has the effect of restricting a person’s access to the Courts by imposing a leave requirement is not to be made lightly and is exceptional and serious. We are also cognisant of not punishing Ms Storry for past mistakes.

72    But this is not a case at the margins. Several factors compel the making of a vexatious proceedings order.

73    First, we recognise that as an undischarged bankrupt there are already fetters on Ms Storry’s ability to commence most types of proceedings but, in this case, the fact that Ms Storry is an undischarged bankrupt does not militate against making the order. Indeed, the contrary is true. As is evident from the above, Ms Storry’s bankruptcy has not stopped her commencing non-exempt proceedings notwithstanding all her property is vested in her trustee in bankruptcy pursuant to s 58 of the Bankruptcy Act.

74    Secondly, and most importantly, the present circumstances represent a clear example of where the Court must act to protect itself from the expense, burden, and inconvenience of baseless and repetitious proceedings instituted by Ms Storry. Ms Storry has had plenty of days in Court, but she is not entitled to another person’s day in Court to pursue quixotic and misconceived complaints. We are amply satisfied a vexatious proceedings order in this case is reasonably necessary to protect Court resources so that they are available to other litigants.

75    Thirdly, as is evident from the submissions summarised in Section E above, Ms Storry’s arguments are replete with irrelevancies and misconceptions rendering them difficult to follow, and trying to understand them and make them comprehensible causes considerable Court time to be consumed and directed to no useful end.

76    Fourthly, we are satisfied such an order is also reasonably necessary to protect Ms Storry from the consequences of her own actions: see Attorney-General v Reid [2012] NZHC 2119; [2012] 3 NZLR 630 (at 635 [25] per Keane and Woodhouse JJ). As was evident from the way Ms Storry presented her submissions at both hearings, she is much vexed and disturbed by appearing in Court to conduct her litigation. No doubt she has also wasted associated out-of-pocket expenses.

77    Fifthly, although not decisive to the exercise of the discretion, it is also relevant that absent the making of an order, we are amply satisfied other vexatious proceedings are likely to be brought in the Court.

78    Having regard to all matters put by Ms Storry (to the extent relevant) and in all the circumstances, a form of the proposed order notified to Ms Storry by Order 2(a) of the Orders dated 28 May 2024 should be made.

F    WHETHER ANY OTHER ORDER SHOULD BE MADE

79    During the oral hearing, the Full Court raised with Ms Storry that s 37AO(2)(a) of the FCA Act provides the Court may make an order staying any proceeding already instituted. This was because it became apparent, during her oral submissions, that Ms Storry is also pursuing relief in proceedings QUD 479 of 2023.

80    This is a proceeding in which, put in broad terms, Ms Storry is seeking the removal of her trustee in bankruptcy, certain interim orders relating to the preservation of property and related orders. It is apparent from the Court file that this has been the subject of several interlocutory orders by Rangiah J and his Honour has reserved judgment in relation to aspects of that proceeding. In these circumstances, it is neither necessary nor appropriate that we consider whether this proceeding is vexatious or otherwise interfere, leaving the matter to be dealt with, in the usual course, by the Docket Judge.

81    We should not conclude without recording our appreciation for Mr Mack appearing in the Full Court without remuneration as an amicus to assist the administration of justice and for his helpful and cogent submissions.

Associate:

Dated: 31 July 2024