FEDERAL COURT OF AUSTRALIA

Coffey v Centrelink [2004] FCA 188

Social Security Act 1991 (Cth)

Social Security Act 1947 (Cth)

Freedom of Information Act 1982 (Cth)

Privacy Act 1988 (Cth) ss 6, 6C, 14, 16 Sch 3

Privacy Amendment (Private Sector) Act 2000 (Cth)

Public Sector Management Act 1955 (SA)

General Steel Industries Ltd v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to

Coffey v Secretary, Department of Social Security (1998) 54 ALD 43; [1998] FCA 1202 referred to

Coffey v Secretary, Department of Social Security (1999) 56 ALD 375; [1999] FCA 375 referred to

Donkin v AGC (Advances) Ltd [1995] FCA 696 referred to

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 referred to

De L v Director-General, New South Wales Department of Community Services (1997) 190 CLR 207 referred to

McMullin v ICC Australia Operations Pty Ltd (No 7) (1999) 169 ALR 227; [1999] FCA 1814 referred to

Ramsey v Skyring (1999) 164 ALR 378; [1999] FCA 907 referred to

Horvath v Commonwealth Bank of Australia [1999] FCA 504 referred to

Attorney-General v Wentworth (1998) 14 NSWLR 481 referred to

PETER COFFEY v CENTRELINK & AUSTRALIAN GOVERNMENT SOLICITOR

S 591 of 2003

MANSFIELD J

5 MARCH 2004

ADELAIDE

THE COURT ORDERS THAT:

1.                       On the respondent’s notice of motion of 30 October 2003:

1.1                the application of the applicant is dismissed;

1.2                the order sought under Order 21 rules 1 and 2 of the Federal Court Rules is refused.

2.                       On the applicant’s notice of motion of 29 October 2003, the orders sought are refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE ISSUES

1                     The original application in this matter, issued on 29 July 2003, was expressed as a notice of appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) given on 7 May 2003.  The named respondent was Centrelink.  It was unclear what decision of the Tribunal was the subject of the application, or the grounds upon which the application was brought.  The applicant Peter Coffey (Mr Coffey) was directed to clarify those matters by filing and serving an amended application.

2                     The amended application filed on 19 September 2003 abandoned any attack upon any decision of the Tribunal.  It added Australian Government Solicitor (AGS) as a respondent.  The orders sought are the ‘re-instatement’ of application SG 6 of 1998 (the 1998 action), an extension of time to ‘add the DPP’ as a respondent, and an extension of time to add causes of action for ‘defamation, breach of privacy, negligence, conspiracy, abuse of process, and restraint of trade’.  The amended application further seeks summary judgment on all causes of action and damages.  It also seeks an interlocutory order that the ‘Commonwealth’ corrects Mr Coffey’s police record to the effect that 32 fraud charges against him in 1994 were withdrawn.  The record is correct.  Mr Coffey really wants the record expunged.

3                     Accompanying the amended application were a series of documents entitled ‘Background’, ‘Statement of Contentions and Facts’, ‘Falsehoods and Misrepresentations in the Affidavit of [a named solicitor]’, ‘Falsehoods and Misrepresentations in the Affidavit of [a named officer of Centrelink]’, ‘Falsehoods and Misrepresentations in the Affidavit of [a named officer of the Director of Public Prosecution]’, and an affidavit of Mr Coffey sworn on 19 September 2003.

4                     The respondents have jointly applied by motion of 30 October 2004 to summarily dismiss the application under O 20 r 1 of the Federal Court Rules (the Rules) on the ground that it does not disclose a reasonable cause of action.  They have also applied for an order declaring Mr Coffey to be a vexatious litigant under O 21 r 1 of the Rules.  I received without objection on the motion the affidavit of Adele Pugsley sworn on 29 October 2003 and its annexures, the affidavit of service, and a document entitled ‘List of Proceedings Issued by Applicant’.  I also received the affidavit of Mr Coffey sworn on 29 January 2004.

5                     This judgment deals with the motion of the respondents to summarily dismiss the application.

6                     In addition, Mr Coffey has applied by motion of 29 January 2004, in effect, for summary judgment permitting him to re-open the 1998 action and for summary judgment for the causes of action in the 1998 action and in this action.  That motion was heard at the same time as the respondents’ motion.  I received without objection a further affidavit of Mr Coffey sworn on 29 January 2004, a copy of the South Australian ‘Offender History’ concerning Mr Coffey provided by the South Australian Police (SAPOL), and the material filed by Mr Coffey at the time of his amended application.  It was made plain that the material so received would be treated as evidence of facts (as opposed to assertions) only to the extent that it was contained in an affidavit or affidavits, and that argument and assertion in the affidavits, without a proper factual background, would be given no evidentiary weight but be treated as part of the argument of Mr Coffey.  This judgment also deals with Mr Coffey’s application by that motion.

7                     I am mindful that orders summarily disposing of a proceeding whether on the motion of an applicant or of a respondent should be made only in the clearest of cases, and where there is in substance no issue to be tried:  General Steel Industries Ltd v Commissioner for Railways (NSW) (1964) 112 CLR 125.

8                     I note that I was the judge at first instance in the 1998 action.  I raised with Mr Coffey whether, in that circumstance, he would prefer that some other judge consider the motions.  He indicated that he was content for me to do so.  The respondents were also content that I should do so.

the 1998 action

9                     The 1998 action was brought by Mr Coffey against the Secretary, Department of Social Security (the Secretary) on 5 August 1998.  The then respondent applied for the action to be summarily dismissed.  The respondent’s application was successful.  On 25 September 1998, the 1998 action was dismissed:  Coffey v Secretary, Department of Social Security (1998) 54 ALD 43; [1998] FCA 1202.  On 7 April 1999, an appeal from that decision was dismissed, in one respect on different grounds:  Coffey v Secretary, Department of Social Security (1999) 56 ALD 375; [1999] FCA 375 (von Doussa, Branson and Sundberg JJ).  An application for special leave to appeal to the High Court was refused on 24 March 2000 on the ground that the decision of the Full Court was not attended with sufficient doubt to warrant the grant of special leave to appeal.  An application to re-open the application for special leave to appeal to the High Court was dismissed on 14 August 2002.  The judicial processes in the 1998 action have therefore been exhausted.

10                  The background to Mr Coffey’s complaints is quite brief.

11                  In the period up to February 1992 he was in receipt of unemployment benefits under the Social Security Act 1991 (Cth) and its predecessor the Social Security Act 1947 (Cth).  Whilst receiving those benefits, he undertook some casual work.  He regularly provided to the Department of Social Security (the Department) estimations of his casual earnings.  In February 1992, an officer of the Department formed the view that Mr Coffey had failed to accurately report the amount of his casual earnings, and raised a debt against Mr Coffey of $3245.  Benefits to that sum were withheld.

12                  In the 1998 action, Mr Coffey claimed that those benefits had been wrongly withheld, and sued the Secretary for their recovery.  The Full Court concluded that, because Mr Coffey had pursued and exhausted the avenues for internal review of the decision to raise the debit of $3245, and had then unsuccessfully sought review of that decision by the Tribunal, the maintenance of the claim to recover the sum of $3245 was an abuse of process, so that claim should be dismissed:  see the Full Court judgment at [24] – [25].

13                  The Department investigation into the claimed overpayment of benefits led to Mr Coffey being interviewed on 4 February 1993.  He claimed in the 1998 action that he was told that the reason for the interview was to seek his explanation for what appeared to be an overpayment, but it was in fact an attempt to get him to incriminate himself.  He claimed the interview was an abuse of process.  On 17 February 1994, he was served with a summons alleging 32 counts of fraud.  The charges were later withdrawn on 6 May 1994.  His ‘Offender History’ is consistent with that.  He claimed in the 1998 action that he was maliciously prosecuted by the Secretary because the Director of Public Prosecutions (the DPP) said at the time the charges were withdrawn that there was insufficient evidence to support them, because he had been assured on 4 February 1993 that he would be given further notice before any charges were laid so he could make further representations to the Secretary, and because of the long delay before the charges were laid.  The Full Court upheld the decision at first instance that the malicious prosecution claim against the Secretary (or, if the particulars were amended, against named officers of the Department) was untenable as there was no evidence that the officers concerned had procured the prosecution of Mr Coffey without reasonable and probable cause, or with malice or an improper purpose.  It also upheld the decision that there was no real prospect of showing misfeasance in public office by the Secretary (or, if the particulars were amended, by named officers of the Department).

14                  Mr Coffey had sought to adduce on the appeal further evidence which, he contended, assisted in demonstrating malice on the part of certain officers of the Department in securing his prosecution.  The Full Court at [29] said the proposed new evidence did not ‘even arguably [enable] him to establish malice on the part of any of the three officers who participated in the preparation of the brief to the DPP’, or that any of them did an invalid or unauthorised act with malice.

THE PRESENT APPLICATION

15                  Mr Coffey said in the course of submissions that, in fact, he seeks no separate orders against AGS.  It is not therefore necessary to consider the position of AGS further.  To the extent that it is a party to the present action by the amended application, the claim against it will be dismissed.  Mr Coffey said he sought the orders in the amended application against Centrelink because he understands Centrelink has assumed the administrative operations of the Department previously carried out by the Secretary.

16                  In the first instance, I shall assume that his target is both consistently identified and is the appropriate target (whether the Secretary, the Department, officers of the Department, or Centrelink) having regard to his present claims and contentions.  It is a substantial obstacle to the present application that he has changed the respondent parties from the named respondent in the 1998 action.  However, it would be better to deal with his application as if the correct respondent or respondents were consistently named.

17                  The respondents accept that the Court has power under O 35 r 7 to vary or set aside a judgment, even after an appeal, and so to re-open a proceeding.  It is plain that the power should be exercised only with great caution, having regard to the importance in the public interest in the finality of litigation:  see Donkin v AGC (Advances) Ltd [1995] FCA 696, (Black CJ, Davies and Whitlam JJ).  In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, Mason CJ said at 303:

‘… it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put.  What might emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.  The purpose of the jurisdiction is not to provide a back door method by which unsuccessful litigants can seek to re-argue the case.’ 

See also De L v Director-General, New South Wales Department of Community Services (1997) 190 CLR 207 at 215; McMullin v ICC Australia Operations Pty Ltd (No 7) (1999) 169 ALR 227; [1999] FCA 1814.

18                  To discern whether there is any arguable prospect of Mr Coffey succeeding in his present application, it is necessary to address the extensive material which he has filed.

19                  The ‘Background’ document complains that, during the hearing at first instance of the 1998 action, Mr Coffey refrained from producing certain evidence because he thought he would get a later opportunity to do so.  It complains that the Full Court erred by considering whether the claims then made were arguable, and that there should have been provided to him an opportunity to cross-examine the officers who were apparently involved in the making of the documents which constituted his proposed new evidence.  I do not consider those matters provide any foundation for the Court permitting Mr Coffey to re-open the 1998 action.  The nature of the application before the Court (the summary dismissal of the 1998 action) was clear.  The evidence Mr Coffey says he may have adduced was the subject of an application to the Full Court on appeal to have it admitted.  The Full Court did not regard that material as having much significance.  It also concluded that the claims made in that action could not succeed.  Its decision generally was found by the High Court not to be attended with any real doubt.  In my view that document amounts to no more than an attempt by Mr Coffey to re-argue the matters which have been rejected successively at first instance, by the Full Court on appeal, and by the High Court.  The ‘Background’ document does not identify any new significant material which was not previously available to Mr Coffey, or any injustice in the outcome of the 1998 action which, by reason of changed or additional circumstances, could warrant the re-opening of the 1998 action.

20                  Mr Coffey’s affidavit of 19 September 2003 also provides no basis for permitting him to re-open the 1998 action.  He says, and I accept, that he did not deliberately claim a benefit to which he was not entitled even if he received greater benefits than his entitlement.  He points out that he disclosed to the Department that he was doing casual work, and made declarations as to his earnings.  He annexes an internal memorandum of Centrelink dated 25 March 1998 concerning the 1998 action, but it does not provide any evidence of malice on the part of the Secretary or officers of the Department in the laying of the 32 charges against Mr Coffey.  Indeed, it identifies that the decision to prosecute, and then to withdraw, the charges was made by the DPP.  The balance of the annexures to that affidavit do not relate to the debt which was raised by the Department.

21                  The Statement of Facts and Contentions explains why Mr Coffey has changed the respondent from the Secretary to Centrelink.  I have approached the present motions on the basis that he has consistently and accurately identified the appropriate respondent.  It is not therefore necessary to address that material.

22                  The three documents asserting ‘falsehoods and misrepresentations’ involve comments upon, and submissions about, certain evidence before the Court at the hearing at first instance of the motion to summarily dismiss the 1998 action.  Those comments and submissions could have been put by Mr Coffey at that hearing.  They do not provide new evidentiary material which demonstrates the findings of fact, made upon the hearing of the motion to summarily dismiss the 1998 action, are erroneous.  They do not, in my judgment, show that it is in the interests of justice that the 1998 action should be re-opened.

23                  Mr Coffey’s further affidavits of 29 January 2004 and his submissions on the motions now under consideration attempt to reargue, in some respects with a different emphasis, matters which were argued at the earlier hearings in the 1998 action, and to argue errors of law and fact in the reasoning both at first instance and on appeal.  Those matters provide no proper basis for re-opening the 1998 action.  The process by which such arguments are considered, and reviewed on appeal, and then by the High Court when it considered whether to grant special leave to appeal, has been exhausted.

24                  I have also considered whether the combination of matters which Mr Coffey now raises warrants the re-opening of the 1998 action.  Whether taken individually, or taken collectively, in my judgment the matters raised fall far short of demonstrating such a misapprehension of the facts or the law, or any other circumstance, that in the interests of justice requires such an order.  No conduct on the part of the Secretary (or Centrelink) in relation to the 1998 action has been shown to have been, or even possibly to have been, fraudulent or improper, so as to have produced an outcome which the interests of justice require to be set aside.  Mr Coffey has not produced any significant new evidence which indicates that such an order should be made.  It is not therefore necessary to consider whether any such evidence (if there were any) should have been adduced by him during his conduct of the 1998 action.  He has not otherwise identified circumstances which require the making of such an order.

25                  For those reasons, the orders sought by Mr Coffey in his motion of 29 January 2004 should be refused.  I also consider that, as there is no real prospect of Mr Coffey establishing an entitlement to re-open the 1998 action, the motion of the respondents of 30 October 2003 seeking summary dismissal of the application to reopen the 1998 action should succeed.

26                  The other orders sought by Mr Coffey in the amended application should also, in my judgment, be summarily dismissed.  He has produced no material upon which it is arguable that he could be granted an extension of time to sue the DPP, nor any material upon which it is arguable that he has a cause of action against the DPP.  He has produced no material upon which it is arguable that he could be granted an extension of time to add against Centrelink causes of action for ‘defamation, breach of privacy legislation, conspiracy, abuse of process, and restraint of trade’.  He now seeks no order against AGS.  Nor has he adduced any material to show he has an arguable cause of action against Centrelink (or the Secretary) for any of those causes of action.  The other orders sought in the amended application are for summary judgment for the claims already made and dismissed in the 1998 action, and for other unsupported claims of ‘… conspiracy, contempt of court, perjury, maintenance, negligence, … mal-administration and restraint of trade’.  Those claims are unsupported by any cogent material.  There is no statement of claim.  To the extent that those claims have already been determined in the 1998 action (albeit under a different label) they are otiose.  If they have not been determined, and relate to new and separate causes of action, they are not properly pleaded or described in any material.  They are simply broad and undeveloped assertions.

27                  I accordingly summarily dismiss Mr Coffey’s application as expressed in the amended application filed on 19 September 2003.

28                  I accept that he has been, and remains, very concerned about the fact, of having been charged with 32 counts of ‘obtaining payment or fares allowance not payable’, even though the charges were withdrawn.  The fact of the charges remains on the ‘Offender History’ with the notation that they were withdrawn.  He describes in his affidavit of 19 September 2003 how the laying of those charges has affected him.  He says:

‘Since the serving of the summons I have been fighting against that decision.  It has effectively wrecked my life, because of the public nature of the accusations I am unable to pursue a career in landbroking and property development as with the fraud charges on record there is the indisputable assumption that I am of bad character and a dishonest person.

This is not the case and I wanted after establishing the charges were without foundation declared null and void as there was no evidence to support same and no intention of those involved to proceed if the matter was to be defended.  That was the main reason for my Federal Court action …’ 

29                  Rightly or wrongly, his concern has led to the present application.  One can sympathise with Mr Coffey, even if others may have been able to put such an adverse experience behind them and to have got on with their lives.  Unfortunately, he has been unable to do so.  (Of course, I am not to be taken as accepting that the fact of the charges which were withdrawn has in fact precluded him from pursuing the careers to which he refers.)

30                  The degree to which Mr Coffey’s concern extends is reflected in the action he has taken to reverse the original decision to raise the debt, or to get a determination that no debt existed.  Apart from the review processes referred to in [24] of the Full Court decision, and the steps concerning the 1998 action referred to in [9] above, and the present application, he has made six largely successful requests for information from the Department and Centrelink under the Freedom of Information Act 1982 (Cth) and he sought review of one of those decisions including an appeal to the Tribunal.

31                  The reason why such information, now some 10 years old, is preserved by SAPOL is not clear.

32                  The vast nature and extent of information gathering by both public and private entities about individuals was addressed by the Australian Law Reform Commission (ALRC) in its substantial report, Privacy  (Report No 22, 1983).  Ultimately this report led to the Privacy Act 1988 (Cth).  The Privacy Act, following its amendment by the Privacy Amendment (Private Sector) Act 2000 (Cth), applies to both public and private entities.  It is designed to protect the dissemination of information held by an entity.  The Information Privacy Principles (s 14) apply only to agencies (s 16); agencies are defined in s 6 to refer to Commonwealth entities.  The National Privacy Principles (Sch 3) apply to organisations; organisations are defined in s 6C to exclude State authorities.  The Privacy Act does therefore not apply to SAPOL in this situation.

33                  In South Australia, there is no equivalent of the Privacy Act.  Cabinet issued Cabinet Administrative Instruction No 1 of 1989 called the ‘Information Privacy Principles Instruction’.  It was reissued in an amended form on 30 July 1992.  It applies to ‘the public sector’ now as defined in the Public Sector Management Act 1995 (SA), and would appear to apply to SAPOL and its officers.  It seeks to limit the acquisition of personal information, and to control its dissemination.  Personal information is not to be used except for relevant purposes, and should not be disclosed except by consent of the record-subject or as required by law or as necessary in particular circumstances.  It is limited in its application to personal information collected from the record-subject.  Consequently, it does not apply to information of the sort the subject of Mr Coffey’s ‘Offender History’.

34                  As long ago as 1977, the South Australian Government was concerned to ascertain the nature of material held by SAPOL.  On 7 November 1977, White AJ was appointed to inquire into the records then held by the Special Branch of SAPOL.  The terms of reference included to examine its files to ascertain whether they complied with the following criteria (inter alia):

‘ “No records” or other material, shall be kept … with respect to any person unless

…

(2)               That record or other material, either alone or with other existing records or material, contains matters which formed the whole or part of the facts with respect to which that person has been charged with an offence in respect of which proceedings have not been dismissed or withdrawn, …’

35                  Public access to documents held by SAPOL such as Mr Coffey’s ‘Offender History’ is now, of course, controlled by the Freedom of Information Act 1991 (SA), in particular s 26.

36                  The ‘Offender History’ appears to confirm that SAPOL record all charges and all court appearances and outcomes.  The information remains on record even if the charge is withdrawn (or, according to information on the Legal Services Commission website, dismissed).  The website:

‘This information remains on record permanently unless a charge is found not proved and the person applies to the Commissioner of Police to have records of his or her fingerprints destroyed and all other evidence of the charge removed.’

37                  The ALRC in its Privacy Report (Vol 1, p 9 par 17) refers to the privacy issue concerning expungement of criminal records.  The ALRC subsequently further addressed that topic in its interim report Sentencing of Federal Offenders (Report No 15, 1980) and its final report Sentencing (Report No 44, 1988).  In several States and Territories there is now legislation for the expungement of records relating to spent convictions:  Criminal Records Act 1991 (NSW); Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld); Criminal Records (Spent Convictions) Act 1992 (NT); Spent Convictions Act 1988 (WA); Crimes Act 1914 (Cth).  There is no such legislation in South Australia.  Mr Coffey’s ‘Offender History’ is not even a criminal record.  It is a record of charges which were withdrawn.

38                  In the circumstances, I can well appreciate his frustration at the information still held by SAPOL concerning those charges.  It is hard to see any justification for the retention of such records.  Apart from their availability to government agencies being unregulated by law, they are available to the public subject to the controls of the Freedom of Information Act 1991 (SA).  It is in any event entirely inappropriate that the information maintained should be presented on a document entitled ‘Offender History’.  Mr Coffey is not an ‘offender’ against any provision of any statute in respect of the charges.

39                  It is reported (ANZ Equal Opportunity Law and Practice, CCH par 10-280) that SAPOL has a policy which allows for certain convictions to be put into an inactive file after a period of time, so the conviction will not be recorded on the person’s criminal record.  Minor offences are said to be put into an inactive file after a period of five years.  It is hard to reconcile that policy with the form of Mr Coffey’s ‘Offender History’ which appears to record charges of a minor nature, which did not even lead to a conviction but which were withdrawn, and were laid more than 10 years ago.

the ‘vexatious litigant’ application

40                  Order 21 r 1 of the Rules empowers the Court, in certain circumstances, to order that any proceeding instituted by a person may not be continued without leave of the Court and that the person may not institute a proceeding without leave of the Court.  The circumstances in which that power may be exercised are:

(1)               that the person has instituted a vexatious proceeding, and

(2)               that the Court is satisfied that the person has ‘habitually, persistently and without reasonable grounds instituted other vexatious proceedings’ in this or any other Australian Court.

Order 21 r 1(2) provides that such an order may be made on the Court’s own motion, or on the application of the Attorney-General or the Solicitor-General of the Commonwealth, or of a State or Territory, or on the application of the Registrar.

41                  The limited range of persons entitled to apply for an order under O 21 r 1 reflects the fundamental principle that every person has a right of access to a Court to seek remedies in consequence of an alleged infringement of that person’s rights:  see per Sackville J in Ramsey v Skyring (1999) 164 ALR 378 at [51], 389; [1999] FCA 907.  The right to do so should not readily be removed.  The scope of any order under O 21 r 1 may extend beyond proceedings concerning a particular issue or transaction to any proceedings at all.  It may extend to proceedings against any party.  Ramsey v Skyring involved an application by the Registrar.

42                  The respondents’ motion, and the supporting material, does not indicate the application is made by one of the eligible persons.  The issue of authorisation is not addressed in their written submissions.  On that limited basis, I think the order sought under O 21 r 1 should not be made.

43                  That does not leave the respondents without an avenue for their protection from further proceedings by Mr Coffey, if such protection is warranted.

44                  Order 21 r 2 of the Rules provides:

‘Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable ground institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by him without leave of the Court.’

45                  The general principles applicable are discussed by Sackville J in Ramsey v Skyring at 389, at [51] – [52], and by Weinberg J in Horvath v Commonwealth Bank of Australia [1999] FCA 504 at [95] – [103].  In considering the respondent’s application under O 21 r 2, I adopt and apply those principles.  The concepts are in essence the same, whether O 21 r 1 or O 21 r 2 is being addressed.  There is one significant difference between them (apart from the latter being restricted to prohibiting proceedings only against the aggrieved person or persons).  Order 21 r 1 entitles the Court to consider other proceedings in this Court or other Australian courts.  Order 21 r 2 confines its focus to proceedings in this Court.  I shall therefore separately consider O 21 r 2 and O 21 r 1 (putting aside the standing issue).

46                  In my view, the present application by Mr Coffey is a vexatious proceeding.  It is, for the reasons given, untenable and there was no basis upon which it might arguably have succeeded:  see Attorney-General v Wentworth (1988) 14 NSWLR 481.  As noted, in view of Mr Coffey’s explanation for having changed the respondents from the respondent named in the 1988 action, I treat the present application as being against the same person as the 1998 action.  It is his own submission that they are, or should be treated as, the one person or entity representing the decision-maker involved in raising the debt and procuring the laying of the charges.

47                  I am also, for the same reason, of the view that the present application by Mr Coffey was brought without any reasonable ground.  It is clear from the authorities referred to that the determination whether proceedings are brought without any reasonable ground is an objective one.  I accept that Mr Coffey is not acting maliciously or for any collateral purpose, and that he believes he is following a reasonable path.  But his personal attitude does not colour the objective assessment of the quality of those two proceedings. 

48                  In Ramsey v Skyring, Sackville J at 390, at [55] said the expression ‘habitually and persistently’ implies more than frequently.  His Honour also adopted the explanation of Roden J in Attorney-General v Wentworth at 492 that:

‘ “Habitually” suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; “persistently” suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness.’

49                  Under O 21 r 2, the only proceeding in this Court which might attract that description is the current application.  In my judgment, it does not do so.  The proceedings otherwise brought in the Court against the Secretary or the respondents are the 1998 action and the appeal.  Mr Coffee was entitled to explore the issues which he there sought to ventilate.  This present application is, I have found, vexatious but it is only one action.  It may not be repeated.  Without prejudging any subsequent attempt to invoke O 21 r 2 if Mr Coffey makes another attempt in the Court to somehow revive the issues raised in the 1998 action, he might by such a proceeding expose that he is then within the web of O 21 r 2.  But in my view that stage is not presently reached.

50                  If O 21 r 1 were available, I would also conclude that its operation has not yet been activated.  Under that rule, Mr Coffey’s present application would fall within the description of a vexatious proceeding.  The other proceeding in a Court which might then attract the description of being instituted habitually and persistently would be the application to the High Court to re-open the application for special leave to appeal.  I have no doubt that application was brought without reasonable grounds, and demonstrates a certain doggedness on the part of Mr Coffey in the face of his exhaustion of the normal processes of judicial decision-making and appeal.  But, either alone or in conjunction with the present application, it does not fall into the description of being ‘habitual’.  As I have said, any further similar proceedings might enliven the operation of O 21 r 1 or O 21 r 2.

51                  In my judgment, for the reasons given, the respondents are not presently entitled to any order under O 21 r 1 or O 21 r 2 of the Rules.

Associate:

Dated:              5 March 2004