FEDERAL COURT OF AUSTRALIA

Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614

PRACTICE AND PROCEDURE – vexatious litigants – application under O 21 r 2 of the Federal Court Rules – whether the respondents habitually and persistently instituted vexatious proceedings against the applicants without any reasonable cause

Statutes

Federal Court Rules O 21 r 2

Federal Court of Australia Act 1974 (Cth) s 4

Cases

Attorney-General (Cth); Ex parte Skyring (1996) 70 ALJR 321 Cited

Attorney-General v Wentworth (1988) 14 NSWLR 481 Followed

Granich & Associates v Yap [2004] FCA 1567 Cited

Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 Cited

In Re Cameron [1996] 2 Qd R 218 Cited

Jones v Skyring (1992) 109 ALR 303 Followed

Ramsey v Skyring (1999) 164 ALR 378 Followed

JONES LANG LASALLE (QLD) PTY LTD (ACN 010 411 140) v SYDNEY RONALD DART, SHIRLEY NORMA DART AND FREDERICK WILLIAM DART

QUD 243 OF 2004

PETER ANDISON ROBERTS, DAVID ROBERT GLASGOW, ALAN RAYMOND LINDSAY, RODNEY CECIL BARNES, STEPHEN JOHN WEAVER, PETER JOHN MORRISON AND ROHAN JOHN ARMSTRONG formerly trading as ROBERTS LEU & NORTH (A FIRM) and PETER ANDISON ROBERTS, PETER JOHN MORRISON, PHILLIP ASKIN, TIM MCKEE, HEATHER WATSON, ROHAN JOHN ARMSTRONG AND TREVER COWLING trading as ROBERTS NEHMER MCKEE (A FIRM) v SYDNEY RONALD DART, SHIRLEY NORMA DART AND FREDERICK WILLIAM DART

QUD 256 OF 2004

NORWICH UNION LIFE AUSTRALIA LIMITED (ACN 006 783 295) AND VYNOTAS PTY LTD (ACN 007 093 601) v SYDNEY RONALD DART, SHIRLEY NORMA DART AND FREDERICK WILLIAM DART

QUD 025 OF 2005

KIEFEL J

BRISBANE

10 NOVEMBER 2005

THE COURT ORDERS THAT:

1.                  The respondents shall not, without leave of the Court, institute any proceedings against the applicant in the Court.

2.                  Any proceedings instituted by the respondents against the applicant in the Court before the making of these Orders, shall not be continued by the respondents without leave of the Court.

3.                  The respondents pay the applicant’s costs of the application.

4.         Liberty to the applicant to apply to add a further applicant.

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

THE COURT ORDERS THAT:

1.         The respondents shall not, without leave of the Court, institute any proceedings against the applicants in the Court, either personally or in the name of their firm.

2.         Any proceedings instituted by the respondents against the applicants or their firms in the Court before the making of these Orders, shall not be continued by the respondents without leave of the Court.

3.         The respondents pay the applicants’ costs of the application.

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

THE COURT ORDERS THAT:

1.                  The respondents shall not, without leave of the Court, institute any proceedings against the applicants in the Court.

2.                  Any proceedings instituted by the respondents against the applicants in the Court before the making of these Orders, shall not be continued by the respondents without leave of the Court.

3.                  The respondents pay the applicants’ costs of the application.

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

AND:

AND:

REASONS FOR JUDGMENT

1                     In three separate but related applications orders are sought against Sydney Ronald Dart, Shirley Norma Dart and Frederick William Dart (‘the Darts’) seeking orders pursuant to Order 21 rule 2 of the Federal Court Rules that they shall not, without the leave of the Court, institute or continue any proceedings against any of the applicants in this Court.  The applicants say that the Darts have repeatedly and unsuccessfully sought to make claims against them in proceedings in this Court and prior to that in the Supreme Court of Queensland.  Despite determinations that the claims were either incompetent or incomprehensible they persisted in instituting further proceedings against the applicants.

2                     Order 21 rule 2 of the Federal Court Rules provides:

‘Vexatious proceeding against a person

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.’

3                     The background to the actions brought by the Darts is the taking of a tenancy of shop premises in the Willows Shopping Town in Townsville, Queensland, by a company controlled by them.  An agreement to lease dated 20 October 1994 and a lease agreement dated 20 August 1995 were executed by the company Mystic Crystal Franchises (Australia) Pty Ltd (‘the Company’) as lessee and Vynotas Pty Ltd as lessor.  The lease was terminated and re-entry of the premises was taken in December 1998.

4                     In each of the proceedings brought by the Darts, Vynotas has been named as a defendant or respondent together with its holding company Norwich Union Life Australia Limited.  JLW (Qld) was named as a defendant in the Supreme Court proceedings.  This is an abbreviated reference to the managing agent of the shopping centre, Jones Lang Wootton (Qld) Pty Ltd.  The Darts sued the company Jones Lang Lasalle (Qld) Pty Ltd in proceedings in this Court.  It is not however apparent from the material what became of Jones Lang Wootton (Qld) Pty Ltd.  The firm of solicitors who acted for Vynotas at all relevant times was Roberts Leu & North.  This firm was named as a defendant in the Supreme Court proceedings.  Following a merger in April 2000, the firm known as Roberts Nehmer McKee came into existence.  The Darts named that firm in later pleadings in this Court, although on occasions also identified it as ‘formerly Roberts Leu & North’.  On the hearing of the applications I made orders that Roberts Nehmer McKee have leave to amend its application to name as applicants in those proceedings the partners of the former firm Roberts Leu & North and the current partners of the firm Roberts Nehmer McKee.

the proceedings

5                     The Darts brought proceedings in the Supreme Court of Queensland before initiating proceedings in this Court.  Their relevance to the proceedings brought in this Court will be dealt with later in these reasons. 

6                     Proceedings No 780 of 1998 were commenced in the Supreme Court on 23 October 1998 in the name of the Company.  On 11 March 1999 Muir J struck out the Statement of Claim against Roberts Leu & North, granting leave to replead, and stayed the proceedings against the other applicants pending the provision of security for costs.  The broad allegations contained in the Statement of Claim were that the Company was induced to enter into the lease of the shop premises by a number of false representations made by a representative of JLW (Qld) as to: (i) the number of customers presently attending at the shopping centre and the increase in that number which was expected;  (ii) the Company’s right to construct a shop in accordance with certain drawings;  and (iii) a representation to the effect that other tenants would not be permitted to trade in the same goods as the Company.  The Statement of Claim also referred to a Deed of Settlement entered into in November 1996 prepared by Roberts Leu & North.  Muir J, in reasons for judgment in connexion with the refusal to set aside a statutory demand against the Company for rent, refers to it as a release of liability of a respondent so presumably Vynotas was a party to it.  The Statement of Claim alleged generally that the document was procured through duress and other methods.

7                     An appeal was brought from each of the orders made by Muir J.  The Queensland Court of Appeal made orders requiring the Company to give security for the costs of the appeal.  An application for special leave to appeal from those orders was refused.  The appeals were struck out when the security was not provided. 

8                     The Darts delivered an Amended Statement of Claim in the same proceedings on 7 April 1999.  The earlier representations were again pleaded, as was a reference to the Deed of Settlement and some later negotiations.  The pleading also referred to the fact of re-entry by JLW (Qld) acting on behalf of Vynotas.  It is not apparent from the pleading what claims were said to be those of the Darts, as distinct from the Company.

9                     At about the same time the Darts instituted the second set of proceedings in the Supreme Court (No 369 of 1999).  The Statement of Claim was essentially the same as the Amended Statement of Claim in the first proceeding.  Two further pleadings amending the Statement of Claim were delivered.

10                  On 29 September 1999 de Jersey CJ struck out the first proceeding as against Roberts Leu & North.  His Honour refused Mr Sydney Dart leave to appear for the Company, holding that his desire to re-agitate the correctness of Muir J’s orders was not a sufficient reason for doing so.  The Darts had joined themselves as plaintiffs by the Amended Statement of Claim and without leave being granted.  The consequence of these matters was that the second Statement of Claim was struck out as an abuse of process.  His Honour stayed the proceedings.

11                  On the same day de Jersey CJ stayed the second proceeding brought by the Company, struck out the last Amended Statement of Claim in it and gave the Darts leave to replead.  His Honour appears to have been of the view that there was a failure to discriminate against the claims of the Company and of the Darts personally.

12                  The Darts delivered a Further Amended Statement of Claim in accordance with that leave on 26 October 1999.  On 28 February 2000 the Chief Justice struck out the pleading as failing to disclose a reasonable cause of action.  The problem evident in the earlier Statements of Claim, that of a lack of definition of the claims pursued by the Darts, remained.  His Honour said:

‘…the new statement of claim exhibits the following relevant deficiencies: it does not distinguish in a particular way between the claims of the individual members of the Dart family; it has not distinguished in a particular way between their respective causes of action; it has not particularised the specific basis of any cause of action said to accrue to the individual members of the Dart family and it has not specified the damages which they respectively claim relating then in an appropriate way to the other elements of the causes of action upon which they would rely.’

His Honour then dismissed the action, as against Roberts Leu & North, Vynotas and Norwich Union, observing that this followed upon Mr Sydney Dart’s concession that the Darts had done their best to plead the matter and could not do any better.  The proceedings were dismissed against JLW (Qld) by consent shortly thereafter.

13                  The winding up of the Company was ordered on 21 July 1999.  That decision was the subject of an unsuccessful appeal and an unsuccessful application for special leave to appeal.

14                  The first proceedings in this Court (Q67 of 2000) were filed on 13 July 2000.  The initial Statement of Claim was followed by an Amended Statement of Claim.  In reasons for judgment of 19 September 2000, striking out the Amended Statement of Claim, Spender J observed that, with one exception, the causes of action were substantially similar to the causes of action sought to be prosecuted in the second Supreme Court proceedings.  In particular they concerned representations which may have founded a cause of action for the Company but not members of the Dart family.  His Honour however identified one cause of action which might not fall into that category.  It concerned the alleged new agreement said to have been entered into between Norwich Union and one or more of the Darts concerning occupation of the shop.  This is a reference to the settlement agreement and perhaps also involves questions relating to re-entry.  His Honour gave leave to replead within 21 days.  Although his Honour’s order was expressed generally, his reasons disclose that leave was intended to be limited to the issues so identified.

15                  On 9 October 2000 the Darts filed another Statement of Claim.  It reiterated the previous claims and added, for the first time, an allegation that the agreement to lease was assigned to the Darts by the Company prior to the execution of the lease and referred to the business having been conducted by the Darts and not the Company.  On 4 September 2001 Spender J ordered that the pleading and the proceedings be struck out.  In his Honour’s view the facts pleaded could not establish the members of the Dart family as the legal tenants.  In other respects the pleading was the same as that previously ordered to be struck out.  It still failed to distinguish between causes of action which might accrue to individual members of the Dart family and did not disclose the basis for the causes of action.  His Honour was satisfied that the proceedings were frivolous, vexatious and constituted an abuse of process.  On 22 October 2001, and although being ‘far from persuaded that there [were] any arguable grounds for appeal’, Spender J granted leave to appeal from these orders but limited leave to the grounds of appeal filed on 25 September 2001.  The Dart family filed a further supplementary Notice of Appeal, without leave, containing additional grounds.

16                  The appeal was dismissed by the Full Court on 1 March 2002.  The Full Court held that Spender J was correct in concluding that the claim of an assignment was untenable.  The Court also observed a new aspect to the pleading.  It sought to introduce what appeared to be claims by the applicants as a partnership as well as claims by them as individuals and, impermissibly, the Company.  It was not possible to discern by whom the claims were made.  The Court went on (at [38]):

‘When this new dimension to the pleading is added to the deficiencies of its predecessors, it becomes apparent that no advance at all has been made in rendering the pleading a viable one.  It suffers the same types of defect identified by de Jersey CJ in the second proceeding in the Supreme Court though it is now encumbered, additionally, with the overlay of claims related in some fashion to the partnership.  His Honour’s comments, which were mirrored in the language of the primary judge to which we have also referred, need not be repeated here.  We would add that the primary judge’s failure to refer to the possible partnership “claims”in the statement of claim provides no basis for interfering with his strike out order.  As we have said, the injection of the partnership claims only exaggerates the deficiencies of the pleading.’

The Full Court observed that the Darts had been given a number of opportunities to plead a cause of action and there seemed no reasonable prospect of their doing so.  Their Honours agreed with the conclusion that the proceedings were frivolous and vexatious, adding (at [47]):

‘… the continued use so made of the processes of the Court without apparent prospect of achieving an unobjectionable pleading, and the disregard of the judicial assistance that has been given, can now properly be categorised as giving rise to an unfair and oppressive use of the processes of the Court: see Walton v Gardiner (1993) 112 ALR 289 at 298-299.’

An application for special leave to appeal from the decision of the Full Court was dismissed on 25 June 2003.

17                  On 28 September 2004 the Darts commenced the second set of proceedings in this Court against the applicants (No Q203 of 2004).  They again attempted to distance the Company from the business and the representations made.  In reasons for judgement of 10 February 2005, Dowsett J found that, with one exception, the Statement of Claim in these proceedings raised no new issue which had not previously been raised.  The new allegation was one of undue commercial pressure having been applied in connexion with the entry into the lease.  Additionally the Darts claimed that the orders made by Spender J were obtained by fraud, because the applicants had not advised the Court and had concealed the fact that the Darts had taken a lease and become tenants after rescission of the Company’s lease, amongst other allegations.

18                  Dowsett J held that were he to allow the proceedings to continue, other than with respect to the issue of ‘commercial pressure’, the decision of the Full Court, that any further prosecution of the claims would be an abuse of process, would be seriously undermined.  The Court had held that the Darts’ contention that they, and not the Company, were tenants was untenable.  In relation to the new issue, only the Company could maintain it and there was no prospect that it would do so.  His Honour set aside the Statement of Claim and dismissed the application.

19                  In addition to numerous and extravagant claims of fraudulent conduct on the part of the applicants, the Darts’ Statement of Claim also alleged that some documents in previous proceedings had been forged.  His Honour did not deal with the allegation at any length, noting only that he was ‘far from convinced’ about it.  His Honour made orders that affidavits containing the allegations be sealed and not opened without an order.

20                  His Honour considered the Darts further proposed amendments to the Statement of Claim but was of the opinion that they could not save the situation.  Application to amend the proceeding was not further pursued by the Darts.

21                  On 10 February 2005 Dowsett J also refused the Darts’ application to stay the winding up of the Company and to grant the directors leave to commence proceedings in the Court.  The order for winding up was said to have been obtained by fraud.  The application was brought within the second proceedings and named the applicants as respondents.

22                  Dowsett J refused leave to appeal from the orders of 10 February 2005.  A further application for leave to appeal was refused by Spender J on 30 March 2005 on the basis that it was incompetent.  The application was heard in the absence of the Darts.  As his Honour’s reasons disclose, it had been arranged to hear the application by telephone following upon Mr Sydney Dart’s request to do so because of the ‘financial difficulties’ of the applicants.  He had also sought an adjournment of it.  When the matter proceeded to a hearing, Mr Dart did not answer his telephone.

23                  The Darts did not appear on the hearing of the applications before me.  Two days had been set aside for the hearing of them in March 2005.  Directions were made as to the filing of written submissions.  One week prior to the hearing Mr Sydney Dart filed an affidavit in which he sought a hearing by way of telephone or video link from North Queensland.  The basis given was ‘financial stress’.  I did not consider proceedings of this nature and length could conveniently be conducted by either of those mediums and was not persuaded by the unsubstantiated assertion that no member of the Dart family could be present at the hearing. I am informed by the District Registrar that he spoke to Mr Sydney Dart and advised him of my decision and that he could not assume that the matter would not proceed in his absence.  The District Registrar further advised that he should make arrangements to attend or put forward further information to establish his allegations concerning his financial ability.  No further information was received from Mr Dart.  The family did not appear at the hearing.  No written submissions were received from them.  Although I initially leaned towards giving a further opportunity to the Darts to provide written submissions, I was persuaded that that was not a proper course.  The Dart family had had the applicants’ written submissions since about 4 August 2005 and had failed to comply with the direction concerning the provision of their submissions, without providing any reason for that failure.  Further, there were indications from the prior conduct of the Darts and from an affidavit filed by them which pointed to a decision on their part not to participate in these proceedings.

24                  In the same affidavit concerning the mode of hearing, a request was made by the Darts to adjourn the application pending the determination of applications before the High Court to have the decisions of Dowsett J quashed and to remove that matter to the High Court.  In that affidavit all three members of the Dart family advised the Court:

‘(i)       Applications now before the High Court will exhaust all avenues available to seek rights and remedies under the law and, to obtain justice in matters of fraud that cast poverty upon them.

(ii)       A solemn undertaking is hereby given to the Court that all matters between the parties will be acknowledged as having come to a final conclusion should applications to the High Court be unsuccessful.

(iii)      No attempt to further litigate matters that have been in dispute between the parties will be sought by the respondents to these matters at any time.’

These statements may be relevant to the exercise of the discretion to make the orders sought.

APPLICATION OF ORDER 21 RULE 2

25                  An order which denies a person access to a Court is regarded as a serious matter: Attorney-General (Cth); Ex parte Skyring (1996) 70 ALJR 321 at 323 per Kirby J, cited by Sackville J in Ramsey v Skyring (1999) 164 ALR 378 (at [51]) (‘Ramsey v Skyring’).  Sackville J however went on to observe (at [52]) that there are also countervailing policies.  The Courts own processes require protection, as do persons who may face loss from actions which have no substance.

26                  Ramsey v Skyring was concerned with an application for an order under Order 21 rule 1, which would prevent the institution of any proceedings in this Court by a person found to be a vexatious litigant, without leave being first obtained.  His Honour considered that the serious consequences of an order made under the rule are acknowledged in the stringent requirements of the rule itself and the further consideration that the Court must give as to whether an order should be made.  In my view the requirements of rule 2 are no less demanding.

27                  Order 21 rule 2 requires it to be shown that the Darts have:

·                   habitually and persistently

·                   and without any reasonable ground

·                   instituted

·                   a vexatious proceeding

·                   against the applicants

28                  The Federal Court of Australia Act 1974 (Cth) s 4 defines ‘proceeding’ relevantly  as:

‘a proceeding in a Court … and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.’

29                  The proceedings to which Order 21 rule 2 refers are those instituted ‘in the Court’ namely the Federal Court of Australia.  The rule has not been amended to refer to proceedings in another Court, as has rule 1 (Federal Court Amendment Rules 1999 (No 6) 1999 No 295).  Nevertheless it has been held that, in considering whether proceedings brought in this Court are vexatious, regard may be had to proceedings in another Court where they have involved the determination of an issue sought to be vindicated again in this Court:   Ramsey v Skyring (at [54]).  This accords with the view expressed by Pincus JA that proceedings in another Court may throw light upon the characterisation of proceedings in the Court hearing an application to have a litigant declared vexatious:  In Re Cameron [1996] 2 Qd R 218 at 221. 

30                  Some earlier authorities, notably Attorney-General v Wentworth (1988) 14 NSWLR 481 (A-G v Wentworth’), held that the motive or intention of the litigant in question may be relevant to the issue whether the legal proceedings they have instituted are vexatious.  I respectfully agree with Sackville J’s conclusion in Ramsey v Skyring (at [56]) that the test whether a person ‘without any reasonable ground institutes a vexatious proceeding’ is an objective one.  As his Honour explained, the question concerns the proceedings, not the person:

‘[56]   The test of whether a person “without any reasonable ground institutes vexatious proceeding” is an objective one.  In Jones v Skyring (at ALJR 813) Toohey J endorsed the observation of Ormerod LJ in Re Vernazza [1960] 1 QB 197 at 208, in relation to almost identical language contained in the Supreme Court of Judicature (Consolidation) Act 1925 (UK) s 51(1): 

            [The words] are referring to legal proceedings, and the question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious.

As Toohey J observed, the question must be decided on the facts, not by reference to whether the person against whom the order is sought has acted in good faith.  It is therefore immaterial that the respondent may believe in the justice of his or her argument and may not understand that the argument has been authoritatively rejected.’

31                  A proceeding which seeks to re-litigate an issue which has been authoritatively determined may be considered as vexatious within the meaning of Order 21.  French J was of this view in Granich & Associates v Yap [2004] FCA 1567 (at [9]).  This will often be the hallmark of proceedings the subject of an application under the Order, although the Order is not confined to proceedings of this kind .  Where issues have previously been determined, it would usually follow that the institution of proceedings with respect to them would lack reasonable grounds.

32                  A consideration of the judgments of the Supreme Court, especially those of de Jersey CJ, leads inevitably to the conclusion that the first proceeding brought in this Court were vexatious and instituted without reasonable grounds.  It had been determined that proceedings brought on behalf of the Company were not competent.  The causes of action and any resulting loss could not be shown to be those of the Darts.  Despite numerous attempts to do so, they were unable to formulate a case.  Nevertheless they sought to agitate the same claims in this Court.  The proceedings were doomed to failure, as Spender J held.  The additional issue raised by the Darts, which in any event went nowhere, does not alter this view of the litigation.  The conclusion that the proceedings were vexatious and an abuse of Court process was stated in the clearest terms by the Full Court.

33                  The appeal to the Full Court from the orders of Spender J may be considered as a separate proceeding for the purposes of Order 21 rule 2.  His Honour granted leave to appeal, but I do not think that forecloses an opinion, for the purposes of this application, that the institution of the appeal was without reasonable grounds and vexatious.  His Honour was in any event not persuaded that there were any arguable grounds.  The judgment of the Full Court confirms that there were not.

34                  The second proceeding brought in this Court was also clearly vexatious and without reasonable grounds within the meaning of the rule.  The Full Court had determined there was no tenable basis for the litigation and that the continued use of the Court was oppressive.  Special leave had been refused.  The only new allegations, of undue pressure and fraudulent conduct, were found by Dowsett J to have no substance. 

35                  The applicants also seek to identify the second application for leave to appeal from the orders of Dowsett J as a further proceeding.  No appeal resulted.  The applicants rely upon the decision of Toohey J in Jones v Skyring (1992) 109 ALR 303 at 310.  His Honour considered that an application to a justice of the High Court for leave to bring proceedings should be regarded as the institution of proceedings.  His Honour explained:

‘However, there is no reason why an application to a justice made consequent upon a direction under O 58, r 4(3) should not itself be regarded as the institution of a legal proceeding.  If that were not so, a most extraordinary situation could develop.  A person might deluge the registry of the Court with writs or other process that were patently an abuse of process or frivolous or, indeed, vexatious.  A direction to the Registrar under O 58, r 4(3) might be given, a subsequent application for leave to issue might be refused by a justice, yet the application for leave to issue the writ or process would not count in deciding whether the person had “frequently” instituted legal proceedings.’

36                  Likewise a vexatious litigant might bring applications for leave to appeal from any number of orders made in the course of proceedings.  There appears to be no reason why they should not be taken into account as proceedings, for the reasons given by Toohey J.  They fall within the definition of a ‘proceeding’.  They involve one of the concerns of the rule - continued attempts to re-litigate the same matter.  It is of course unsuccessful applications for leave which will assume importance for the purposes of the rule, for the reason that, in most cases, the grant of leave may imply that the application was not vexatious.  They are nevertheless proceedings.  The second application for leave here was vexatious because the issue of leave had already been determined and it was incompetent.

37                  The applicants also rely upon the application brought by the Darts to stay the winding up proceedings as separate proceedings.  Although brought within the second proceedings in this Court I consider it should be treated as a proceeding.  The question is one of substance not form:  Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488, applied in Ramsey v Skyring (at [59]).  The application was vexatious at the least because the Court of Appeal had dismissed an appeal from the order winding up the Company and special leave had been refused.  Other orders sought in the application were inconsistent with earlier orders.

38                  In Ramsey v Skyring Sackville J (at [55]) applied the explanation of the terms ‘habitually’ and ‘persistently’ provided by Roden J in A-G v Wentworth at 492:

‘“Habitually” suggests that the institution of such proceedings occurs as a matter of course, as 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.’

39                  The question whether the Darts have habitually and persistently brought proceedings against the applicants cannot in my view take account of the proceedings in the Supreme Court.  Those proceedings can be considered in connexion with whether the proceedings in this Court are ‘vexatious’, but that is because there is nothing in the terms of Order 21 rule 2 to limit the characterisation of the proceedings here.  Whether the litigant in question has acted ‘habitually and persistently’ however is confined by the rule to a reference to the institution of proceedings in this Court.  It is perhaps regrettable that rule 2 was not amended at the same time as rule 1.

40                  It can be concluded that the Darts persisted in their claims against the applicants from the institution of the first proceeding in this Court in July 2000.  When those proceedings were struck out as an abuse of process they brought an appeal which was without substance.  When proceedings could no longer be pursued, because special leave had been refused, the applicants simply brought proceedings again on the same claims, adding only some further groundless claims.  They did so in the face of a finding by the Full Court that the previous proceedings were vexatious and an abuse of the Court.  There could hardly be a clearer example of persistence.  The strength of their determination was highlighted by their applying for leave to appeal twice.  To this may be added their belated attempt to stay the winding up of the Company and obtain orders which would provide them with another avenue by which to pursue their claims against the applicants.

41                  The question which remains is whether it may be concluded that the Darts were habitual in the bringing of their proceedings.  They appealed, or sought leave to appeal, as a matter of course and brought further proceedings, including those relating to the Company, when they had no further recourse against the applicants.  These actions are in my view sufficient to meet the description of ‘habitually’ referred to in A-G v Wentworth. The Darts brought proceedings against the applicants as a matter of course. 

42                  It may be said that the proceedings brought by the Darts against the applicants in this Court are not great in number.  It does not however appear to me that the rule requires proceedings to have been brought frequently and over a long period of time before an order may be made. The question whether they have been brought habitually and persistently is one of fact, to be determined by reference to the circumstances of the case.   In the present case the pattern of litigation and the qualities of which the rule speaks are present in the proceedings brought and continued in this Court over a five year period.

43                  Where the substantive requirements of the rule are met, the question which arises is whether an order should be made.  Relevant to that question is the prospect of the vexatious litigant bringing further proceedings against the applicants if an order is not made.  The view the Court has reached about the conduct of the litigation to that point will necessarily inform the exercise of that discretion.  I consider that an order is warranted.  In connexion with the exercise of the discretion under the rule, I consider that it is appropriate to have regard to the full history of proceedings in both this Court and the Supreme Court, in order to determine whether the Darts might bring further proceedings.  To that lengthy history may be added the statement made by Mr Sydney Dart on 15 October 2004 in proceedings before the Court that ‘I have the rest of my life to litigate this fraud’.  Of further relevance is the fact that, at the time the undertakings were made by the Darts, their applications had not been dismissed by the High Court and it is likely that they believed they had prospects of continuing their litigation in that Court.  Whilst I would hope that the Darts have realised that their litigation against these applicants is at an end, I consider the applicants should have the protection of an order.  They have been exposed to baseless claims since 1998 and incurred substantial costs which they have not recovered and which Mr Dart has said they will not recover.

44                  There will be orders in terms of the applications.  In QUD 256 of 2004 the orders will be made in favour of both firms of solicitors and the members of them.  In QUD 243 of 2004 the applicant will have liberty to apply for orders concerning the entity sued in the earlier Supreme Court proceedings, if it be necessary.  Each of the Darts should pay the applicants’ costs in the proceedings, including any reserved costs.

Associate:

Dated:              10 November 2005

IN THE MATTER OF QUD 243 OF 2004

IN THE MATTER OF QUD 256 OF 2004

IN THE MATTER OF QUD 025 OF 2005