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Hambleton v Labaj

 

[2010] QSC 124

 

 

SUPREME COURT OF QUEENSLAND 

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

29 April 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

28 October 2009.  Supplementary written submissions dated 9 and 12 April 2010

JUDGE:

Applegarth J

ORDERS:

1.John Labaj is declared to be a person who has frequently instituted or conducted vexatious proceedings in Australia.

2.The applicants submit within 7 days draft orders prohibiting the respondent from instituting proceedings (apart from an appeal from these orders) in Queensland without the prior leave of a judge of the Trial Division of the Supreme Court.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – application for declaration that respondent is a vexatious litigant – whether “vexatious” proceedings instituted “frequently” – whether circumstances justify a declaration

ACTS CITED

Vexatious Proceedings Act 2005 (Qld)

CASES

Brisbane City Council v Russell Gordon Haig Mathews [2006] QSC 25

Jones v Cusack (1992) 66 ALJR 815

National Australia Bank Ltd v Freeman [2006] QSC 86

Re Cameron [1996] 2 Qd R 218

COUNSEL:

V G Brennan for the applicant

S Fajardo for the respondent (28 October 2009)

SOLICITORS:

Irish Bentley Lawyers for the applicant

MLDG Lawyers for the respondent (28 October 2009)

The respondent was self-represented when making supplementary written submissions

[1] The applicants seek relief pursuant to the Vexatious Proceedings Act 2005 (Qld) (“the Act”), namely a declaration that the respondent (Mr Labaj) is a “vexatious litigant” and certain ancillary relief staying proceedings.  There is a preliminary issue about the applicants’ standing under the Act to bring the application.  The issue of substance is whether I should be satisfied that Mr Labaj has “frequently instituted or conducted vexatious proceedings in Australia”.[1]

[2] “Proceedings” includes, amongst other things, interlocutory proceedings and appeals within the jurisdiction of any court or tribunal.[2]

[3] The applicants submit that:

(a) Between 14 January 2004 and 27 May 2005, Mr Labaj filed 14 proceedings in the District Court of Queensland (three of which were appeals from Magistrates’ Court proceedings).

(b) Between 3 October 2003 and 15 June 2005, Mr Labaj filed 17 proceedings in the Supreme Court of Queensland (eight of which were appeals to the Court of Appeal).

(c) Mr Labaj was an undischarged bankrupt from 3 June 2005 until 11 August 2008.

(d) Mr Labaj filed two further District Court proceedings on 12 December 2007 and on 26 March 2009 (the latter being an appeal from Magistrates’ Court proceedings).

(e) Between 4 February and 24 June 2009, Mr Labaj filed four Supreme Court proceedings (three of which were appeals to the Court of Appeal).  Mr Labaj also filed an interlocutory application in proceedings against the applicants seeking a stay of certain orders pending appeal.

[4] Accordingly, and with respect to (a) and (b), Mr Labaj commenced 31 proceedings in the District and Supreme Courts within a relatively short period.  It appears that Mr Labaj was unsuccessful in, or did not prosecute, most of those proceedings.

[5] During the period of his bankruptcy, Mr Labaj commenced a proceeding for monies owing.  After his discharge and in the four months between February and June 2009 a further five proceedings were instituted.

[6] The Court of Appeal has made adverse comments about appeals and other proceedings instituted in that Court.  These include that certain proceedings were incompetent, without substance, untenable, had “no arguable prospect of success” or were “vexatious in that there is no arguable basis for them”.  Williams JA, Keane JA (as his Honour then was) and Holmes J (as her Honour then was) stated that “the manner in which he seeks to pursue his claims is aptly characterized as an abuse of the court's process”.[3]

[7] Counsel for Mr Labaj submitted that I should not simply rely on statements made by judges hearing these proceedings, but that I should consider whether those statements were justified.  It was not submitted on behalf of Mr Labaj that I was not entitled to act on those statements, merely that I should be satisfied with their correctness.  I accept that a statement made by a judge hearing a proceeding that the proceeding is “vexatious” or “an abuse of process” does not automatically make the proceeding a “vexatious proceeding” within the meaning of the Act.  However, statements to such an effect provide some evidence that the proceeding was vexatious.  One difficulty with the submission that I should consider the merits of each case is that, apart from an affidavit of Mr Labaj which responds to certain contentions made in an affidavit by the applicants’ solicitor, Mr Labaj has not placed any evidence before the Court which would enable me to find that the statements made by the judges hearing other proceedings were wrong.  I accept that I have to reach my own conclusion as to whether the proceedings were in fact vexatious, and not simply adopt statements to that effect made by the judges hearing those proceedings.[4]  However, Mr Labaj has not provided any evidence as to why I should not act on the evidence constituted by those judicial statements. 

Relevant provisions

[8] The Act does not affect any inherent jurisdiction of the Court to restrict vexatious proceedings.[5]  Section 5 of the Act permits certain identified persons to apply to the Court for a “vexatious proceedings order” in relation to a person mentioned in s 6(1).  The persons who may apply include:

 

  • a person against whom another person has instituted or conducted a vexatious proceeding;[6]  and

 

  • a person who has a sufficient interest in the matter.[7]

An application by such a person may be made only with the leave of the Court.

[9] A court may make a “vexatious proceedings order” under s 6(1)(a) if it is satisfied that a person is a person “who has frequently instituted or conducted vexatious proceedings in Australia”.[8]   “Vexatious proceeding”[9] is defined to include:

 

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

 

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

 

(c) a proceeding instituted or pursued without reasonable ground;

 

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

[10] In National Australia Bank Ltd v Freeman[10] Muir J (as his Honour then was) addressed the meaning of “frequently” in the context of the Act:

“Frequently” is defined in the Shorter Oxford English Dictionary as: “At frequent or short intervals, often repeatedly; numerously”. Whether proceedings have been instituted or conducted “frequently” must be looked at in the context of litigation. In that sense “frequently” is a relative term. [footnote omitted]

[11] Both parties cited Re Cameron[11] which was decided in relation to the Vexatious Litigants Act 1981.  Fitzgerald P stated:

 

“Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis.”

I have regard to this “broad test”.  Under the broad test, and under the statute, regard may be had to the motives or intent of the person against whom the order is sought.  A proceeding that is instituted to harass or annoy, to cause delay or detriment, or for another unlawful purpose is a “vexatious proceeding”.  However, an improper purpose is not necessary.  As Toohey J stated in Jones v Cusack[12] the question is whether the legal proceedings are vexatious, not whether they have been instituted vexatiously.  It is not the respondent’s belief in the correctness of his arguments with which the Court is concerned. [13]

[12] The Court has an inherent jurisdiction to ensure that its processes are not abused.  In considering the Court’s inherent jurisdiction Muir J in National Australia Bank Ltd v Freeman[14] quoted the following observation of Lord Phillips MR in Bhamjee v Forsdick:[15]

“The court, therefore, has power to take appropriate action whenever it sees that its functions as a court of justice are being abused.  The advent of the Civil Procedure Rules makes the nature of those functions more transparent.  A court’s overriding objective is to deal with cases justly.  This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases).  This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.  They thereby divert the court’s resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit.”  (emphasis added)

This observation is apposite in the light of the Court’s objective of avoiding undue delay and expense in the conduct of civil litigation.[16]

The issue of standing

[13] Mr Labaj submitted that the applicants did not have standing either under s 5(1)(d) or (e) of the Act.  In response, the applicants submitted that they did and pointed to two proceedings instituted against them by the respondent which were said to be vexatious.  These were two proceedings in the Court of Appeal in the matter of Re Castleplex Pty Ltd.  In appeal number 6483 of 2009 (“the first appeal”), Mr Labaj appealed against an order of Martin J dismissing a proceeding with costs.   The second proceeding, number 6698 of 2009 (“the second appeal”), was an application for an extension of time to appeal against a costs order.  P Lyons J on 11 May 2009 adjourned an application by Mr Labaj and ordered Mr Labaj to pay the costs thrown away as a result of the adjournment fixed in the sum of $497.20.  Mr Labaj’s ground of appeal was that “[T]here are no grounds in the UCPR to award costs for reasons stated”.  No reasons are stated in the notice of appeal.

[14] Mr Labaj sought a stay of these orders pending the outcome of the appeals.  That application was dismissed with costs by the Chief Justice on 17 September 2009.

[15] It is sufficient in order to determine the question of standing to refer to the “second appeal”, namely the application in respect of the order for costs made by P Lyons J in which the ground of appeal states that “There are no grounds in the UCPR to award costs for reasons stated”.  The contention appears to be that there is no power in the UCPR to award costs.  Of course, there is.[17]  Counsel for Mr Labaj (who was only engaged on his behalf shortly before the hearing before me, Mr Labaj having been self-represented in the relevant proceedings) accepted during the hearing of this application that the second appeal’s assertion that “there are no grounds in the UCPR to award costs” is without justification insofar as the statement suggests there is no power in the UCPR to award costs.  No other interpretation of the ground of appeal was advanced.

[16] It should be added that the “second appeal” was incompetent because it was an appeal as to costs only, which cannot be brought except by leave of the judge making the costs order.

[17] I am satisfied that the “second appeal” was instituted and pursued without reasonable ground, and therefore was a vexatious proceeding.  The applicants have standing to bring the present application.  My view in this regard is confirmed by the disposition of the “second appeal”.

[18] The applicants sought orders that Court of Appeal Proceeding CA 6698 of 2009 and CA 6483 of 2009 be stayed until further order.  Because the hearing of those proceedings was imminent and the costs had already been incurred in relation to them, I declined to grant a stay at the hearing of the matter, and deferred my decision on the application until the outcome of the appeal.  The outcome of the appeal makes it unnecessary to order a stay. 

The recent appeals

[19] On 19 March 2010 the Court of Appeal ordered that each proceeding before it be dismissed with costs.[18]  In the “second appeal” (Appeal No 6698 of 2009) McMurdo P observed that the application for an extension of time to appeal was futile.  Mr Labaj was unable to appeal the discretionary decision of P Lyons J as to costs only because he did not obtain leave from the judge as required under s 253 of the Supreme Court Act 1995 (Qld).  In the circumstances, the appeal from the costs order was described as “incompetent”.  McMurdo P observed that Mr Labaj had not provided any proper explanation for his delay in filing an appeal from that order “but in any case any such appeal would inevitably fail.”

[20] Fryberg J agreed that the application to extend time should be dismissed with costs.  His Honour briefly canvassed the circumstances under which Mr Labaj’s application was adjourned on 11 May 2009 and noted that Mr Labaj’s submissions before the Court “sounded like submissions on the merits of the decision”.  McMeekin J agreed that the application in Appeal No 6698 of 2009 should be refused with costs for the reasons given by McMurdo P.

[21] The “first appeal” was dismissed with costs.  Fryberg J dissented and would have allowed the appeal with costs.

Supplementary submissions

[22] After the delivery of the Court of Appeal’s judgment I gave the parties the opportunity to make supplementary submissions in relation to matters arising in respect of it.  Mr Labaj is now self-represented.  His outline of argument impermissibly sought to re-agitate issues that had previously been argued before me.  The applicants’ supplementary written submissions objected to this attempt to re-agitate those matters, and I uphold that objection. 

[23] Mr Labaj also sought to explain in his written submissions his conduct in commencing the numerous proceedings relied upon by the applicants.  His submissions relevantly read:

“In addition, the respondent is suffering from [a] serious  bipolar mental condition, which at the material time was in highly elevated manic faze.  In [a] criminal case, this condition would be considered as mitigating circumstances or a defense (sic).  I am not certain if this apply (sic) in civil litigation.  Nevertheless the respondent’s actions, judgments and reasoning’s (sic) were affected by his mental condition and coupled with the lack of knowledge are reflected in his conduct in the proceedings and various steps, many incorrect but not vexatious, taken in the proceedings.”

There was passing reference in the affidavit of Mr Labaj filed by leave on 28 October 2009 to a claim for damages he filed in 2005 resulting from a report by a psychiatrist.  The affidavit stated “because of the report, my mental illness was not treated and escalated to a point where I was hospitalised in Caboolture Mental Hospital”.  However, Mr Labaj’s affidavit and the submissions made by counsel on his behalf did not seek to explain his conduct in commencing frequent unsuccessful proceedings on the grounds that he was suffering from a particular mental condition “at the material time”.  There is no evidence concerning the nature and extent of what Mr Labaj describes in submissions as his serious bipolar mental condition, or what he describes in the submissions as “the material time” that it was in a highly elevated manic phase.  It is unsatisfactory to determine the application on the basis of assertions of this kind that appear in supplementary submissions.  However, the assertion that Mr Labaj suffers from a serious bipolar mental condition is a matter of concern in the absence of evidence that his condition has abated and is unlikely in the future to prompt him to initiate further unmeritorious proceedings. 

[24] To the extent that Mr Labaj’s further written submissions addressed the recent decision of the Court of Appeal, Mr Labaj noted in respect of the first appeal that the Court was divided and therefore “it must be (the) High Court to decide who is right.”  His submissions state that an “appeal” (presumably meaning an application for special leave to appeal) has now been filed.  Mr Labaj’s supplementary written submissions do not address the Court of Appeal’s decision in respect of Appeal No 6698 of 2009, but he submits that there is nothing in the judgments of the Court of Appeal that would support the applicant’s proposition that the proceedings in the Court of Appeal were vexatious.

[25] In response the applicants submit that the “second appeal” was dismissed for the reasons advanced by them in their October 2009 outline, namely the proceeding was incompetent.

[26] I uphold the applicants’ submission that this second proceeding in the Court of Appeal was incompetent.  The application to appeal out of time against an order for costs in respect of which no leave had been granted was instituted or pursued without reasonable ground.  It constituted a vexatious proceeding.  The fact that the vexatious proceeding had been instituted against the applicants gave them standing to bring the present application.  I grant them leave to do so pursuant to s 5(2) of the Act.

The substantive issue

[27] The applicants do not seek to justify the relief claimed by them by reference to Mr Labaj’s subjective intent, and do not submit that he has intended to annoy or harass or cause delay or detriment in instituting proceedings.  Instead, they rely upon the proliferation of matters, their “frequency”, their lack of success, the basis for that lack of success (including that the proceedings were incompetent, or found to be completely without merit) and the conclusions reached by courts as to their nature.  Irrespective of Mr Labaj’s subjective intent in instituting and conducting the proceedings, the applicants submit that the parties who have been subject to his frequent and unmeritorious claims have in fact been harassed or caused detriment.  The applicants submit, and Mr Labaj does not contest, that he instituted 12 proceedings against Lollo Plumbing Pty Ltd, which went into administration and later liquidation;  three proceedings against Trident Industrial Pty Ltd;  three against Mr Peter Bevan;  and four against Castleplex Pty Ltd or its liquidators.

[28] The applicants submit that having regard to the numerous proceedings that Mr Labaj has instituted or conducted the “frequency test”[19] has been satisfied.  The issue is whether the proceedings that have been frequently instituted or conducted are “vexatious proceedings”.

[29] These include proceedings that were dismissed by various courts and proceedings that were either discontinued or not prosecuted, without explanation.  In Labaj v Bevan,[20] Mr Labaj applied to transfer a matter from the Magistrates Court to the District Court.  On 23 July 2003 a transfer order was made.  Court records show an application was filed on 11 June 2004 for dismissal for want of prosecution.  There is no evidence of any further steps in the proceeding. 

[30] In Labaj v Lollo Plumbing Pty Ltd (proceeding no D15/04) Mr Labaj was the appellant.  He states in his affidavit that this was an appeal from the Magistrates Court and “related to breach of contract and unfair dismissal mater (sic) related to employment”.[21]  E-Courts records exhibited to the applicants’ solicitor’s affidavit in this matter show that an order was entered by the respondent to Mr Labaj’s appeal on 9 February 2004.  Mr Labaj did not address the outcome of the appeal. 

[31] Labaj v Tricom Equities Ltd (proceeding no D224/04) was discontinued on 26 September 2005.  Mr Labaj does not explain the circumstances under which it came to be discontinued.

[32] In Labaj v Lollo Plumbing Pty Ltd[22] Mr Labaj appealed against a decision of the Queensland Industrial Court for payment of unpaid wages, alleging that the Court had acted in excess of jurisdiction.  On a direction from the Deputy Registrar (Appeals) the Court of Appeal found the appeal to be incompetent and struck it out.  McMurdo P stated:

“Those grounds do not raise an excess of jurisdiction and do not in any way alter the position under s 349 of the Act, which makes the original decision sought to be appealed from final.  It follows that the appeal is incompetent and must be struck out.”[23]

[33] In 2005 Mr Labaj was involved in litigation against a psychologist.  In Labaj v Collins[24] Wilson DCJ  (as his Honour then was) dismissed Mr Labaj’s application for summary judgment and stated:[25]

“On no view can the Board’s finding about the defendant’s professional competence be said to have addressed elements arising around questions whether a duty of care existed under ordinary principles of the law of negligence, or was breached.”

Labaj v Collins[26] was an appeal from this decision.  The Court of Appeal stated:[27]

 

“The basis for such dismissal was clearly foreshadowed in the above passage by Williams JA, of which the applicant was reminded by the primary Judge;  and it is incontrovertible.  The application had no arguable prospect of success, as the applicant should have realized.  That being so, in dismissing the application for leave to appeal, we order that the applicant pay the respondent’s costs assessed on the indemnity basis.”  (emphasis added)

Mr Labaj states that the action was not vexatious because the Disciplinary Committee of the Psychologists Board of Queensland found that the respondent there (Collins) was guilty of unsatisfactory professional conduct.[28]  However, as the Court of Appeal observed, the primary judge took the view that that was essentially irrelevant to the resolution of the issues thrown up by the pleadings.[29]  Mr Labaj’s evidence does not address the fact that he sought summary judgment when he should have realised that he had no arguable prospect of success, and that his appeal likewise had no prospect of success.

[34] Labaj v Bevan (D351/04) is described by Mr Labaj as “a claim for damages resulting from action (442/05) and damages done in cause (sic) of business.”[30]  E-Court records indicate that no further material has been filed in that proceeding since 21 October 2004. 

[35] Labaj v Trident Industrial Pty Ltd & Brisbane City Council (D4122/04) was a claim initiated by Mr Labaj on 3 December 2004.[31]  Mr Labaj appealed against an interim order made by Tutt DCJ.  The appeal was struck out by McMurdo P as incompetent because it was not an appeal against a final order.[32]

[36] Wilson DCJ (as his Honour then was) made a final order dismissing the action on 18 January 2006, after an application was made by a defendant on 14 December 2005.[33]  Mr Labaj states in this application that proceeding D4122/04 was not vexatious as it was “against Brisbane City Council and Trident Industrial Pty/Lt (sic) ... for damages resulting from breach of employment contract by Trident Industrial Pty Ltd as agent for BCC.”[34]  Mr Labaj has not explained the outcome of the action and has not filed evidence to the effect that he had reasonable grounds for commencing and prosecuting the action.

[37] In Labaj v Mathew (D783/05) a judge of the District Court on 10 June 2005 granted an application that the plaintiff’s statement of claim be struck out.  An appeal from that order was dismissed with costs.[35]  No further statement of claim appears to have been filed.[36] Mr Labaj states in his affidavit that the application was due to a medical report by Dr Mathew that resulted in Mr Labaj’s hospitalisation because his “mental illness was not treated”.[37]  Mr Labaj does not address the merits of the original order, or the merits of the appeal that he unsuccessfully prosecuted.  In the absence of any explanation, I conclude that the appeal had no merit.

[38] Labaj v Contrax (Queensland) Pty Ltd (BD 1172/05) was a matter in which Mr Labaj sought summary judgment.  His application for summary judgment was dismissed.  The last document that was filed in the matter was on 17 June 2005.  Mr Labaj states that this proceeding was not vexatious “as it was a proceeding for damages for breach of a contract of employment”.  However, he has not explained why the proceeding was not prosecuted, and he has not given any evidence that he had reasonable grounds to bring the application for summary judgment.

[39] Labaj v Heffernan (D1910/05) was the subject of an application to dismiss for want of prosecution.  Mr Labaj does not address the proceeding, explain that he had grounds to initiate it or explain his failure to prosecute it.  Labaj v Heffernan (D4423/04) was discontinued by a notice of discontinuance on 10 January 2005 after a conditional notice of intention to defend and an application were filed on 24 December 2004.  Mr Labaj does not address this proceeding or its outcome.

[40] In Labaj v WorkCover Queensland (BS 8798/03) Mr Labaj applied for judicial review of a decision of the Industrial Court.  Douglas J on 21 May 2004 rejected the contention that the Industrial Court acted outside its jurisdiction in making findings in respect of the conduct of an earlier proceeding before an industrial magistrate.[38]  His Honour stated that “In fact, it was quite within its jurisdiction …”.[39]  Given the well-established limits on judicial review from a decision of the Industrial Court, I conclude that the application was instituted and pursued without reasonable grounds.

[41] In John Labaj v Q-Comp[40] the Industrial Court heard an appeal from an industrial magistrate’s decision affirming a WorkCover decision.  The appeal was dismissed.  The President of the Industrial Court stated:

 

“I do not propose to deal with the whole of the arguments raised in Mr Labaj’s written submissions.  With respect to Mr Labaj, some of the arguments are abusive and others are scandalous.  Two matters should however be mentioned.  First, the allegation that the Industrial magistrate breached s 130 of the Criminal Code 1899 by intervening to stop Mr Labaj from issuing two summons requiring the attendance of the WorkCover officer who dealt with his original claim and the Q-COMP officer who conducted the Statutory Review, is entirely vexatious.”  (emphasis added)

[42] Mr Labaj was involved in numerous proceedings against Lollo Plumbing Pty Ltd.  He commenced an originating application on 11 November 2003.  An application for summary judgment was dismissed.Mr Labaj appealed against a decision to transfer the matter from Brisbane to Townsville.  The case for transferring it was overwhelming.  In Labaj v Lollo Plumbing Pty Ltd,[41] Philippides J stated:

 

“The appellant contends that in ordering the transfer of proceedings his Honour erred in law and in fact.  Those grounds are not made out.  It is clear that the order made by his Honour was entirely within the appropriate exercise of his discretion and made having regard to correct legal criteria, relevant factual considerations and the competing contentions advanced.  Nor do I consider that any of the additional matters raised in the outline of argument of the appellant raise any matters of substance.”[42]

McMurdo P agreed and stated:

 

“I would only add one matter.  Orally, in his submissions today, Mr Labaj has suggested that as to costs there is no evidence that Ms Hinsman or her instructing solicitors are, in fact, appearing for the respondents but that submission is patently without any merit and is baseless.”[43]

The judgment supports the conclusion that the appeal was instituted and pursued without reasonable ground.

[43] In Labaj v Lollo Plumbing Pty Ltd (BS 2905/04) an originating application was filed by Mr Labaj on 30 March 2004.  It appears that the application was dismissed on 7 May 2004. 

[44] An administrator was appointed to Lollo Plumbing Pty Ltd.  Mr Labaj filed an originating application (BS 3248/04) on 13 April 2004 against the company in administration.  The final step on the court file appears to be an order made on 18 March 2005.

[45] In Labaj v Lollo Plumbing Pty Ltd (Brisbane SC No 10176 of 2003) Byrne J dismissed an application filed on 10 December 2004, with costs to be awarded to the respondent, and directed that the applicant was not able to file another application until that amount had been paid. 

[46] On 23 March 2005 the Court of Appeal heard three appeals from Mr Labaj.  The first was an appeal against a decision of Brabazon DCJ, who refused an application by Mr Labaj for judgment because of the absence of proof of personal service.  The Court of Appeal observed that it was doubtful that the appeal was competent because the order of Brabazon DCJ was not a final judgment.  In any event, the decision was not shown to be affected by error.

[47] Appeal No 11245 of 2004 was an application for an extension of time within which to appeal against a decision of Cullinane J whereby his Honour ordered that a separate action against Lollo Plumbing Pty Ltd be dismissed.  The Court of Appeal observed that there was no error in his Honour’s decision and that the statement of claim upon which Mr Labaj relied was liable to be struck out on the ground “that it did not disclose a reasonable cause of action and was embarrassing in its failure to plead material facts rather than conclusions”.  In any event, the appeal was not competent, having not been filed in time and no explanation was given for the substantial delay.

[48] The third appeal was against a decision of Douglas J whereby his Honour dismissed Mr Labaj’s application to admit to proof in the liquidation of Lollo Plumbing two claims.  The Court found no error.

[49] In its summary in respect of the three appeals, the Court of Appeal stated:

 

In arriving at the above conclusion the Court has carefully considered the points raised in the outline of argument and outline of argument in reply submitted by the applicant/appellant but has concluded that there is no substance in the matters raised therein.  The respondents claim that the appeals are vexatious in that there is no arguable basis for them.  That seems to us to be correct.  Whether or not the appellant has a genuine grievance against the respondents or any of them, the manner in which he seeks to pursue his claims is aptly characterized as an abuse of the court’s process.  The court will not allow its processes or the processes of other Queensland Courts to be deployed as an engine of oppression.[44]  (emphasis added)

[50] After ordering that each appeal be dismissed and that Mr Labaj pay the costs of the respondent to be assessed on an indemnity basis, the Court stated:[45]

 

“In the circumstances we also order in each appeal that the Registrar require the appellant to show cause before a judge of the trial division by written submission to the court why the court should not order that the appellant be barred from making any further application in proceedings being TS968 of 2003 and BD1968 of 2004 without the prior leave of a judge of the court in which the proceeding is pending.”

There is no evidence to suggest that Mr Labaj attempted to show cause.

[51] On 7 August 2009 in Carwyn Constructions Pty Ltd v J & WL Consulting Services and Ors[46] the Court of Appeal dismissed an appeal from a decision of Byrne SJA, who on 7 January 2009 set aside a statutory demand.  Mr Labaj was a second respondent to that application, and the first respondent was a business through which he performed consultancy services.  Keane JA (as his Honour then was, and with whom Holmes JA and Philippides J agreed) concluded that the appellant’s argument involved an “untenable” construction of s 459H(a) of the Corporations Act 2001 (Cth) and that the only issue raised by the notice of appeal was “without substance”.

[52] Mr Labaj’s more recent, futile attempt to obtain an extension of time to appeal against a costs order fixed in the amount of $497.20 tends to indicate that, despite extensive experience in litigation, he has learned very little about not pursuing hopeless or incompetent proceedings.  The fact that Appeal No 6483 of 2009 involved one point of substance does not alter the conclusion that Mr Labaj has pursued numerous hopeless proceedings in recent years, including “the second appeal” against the applicants. 

[53] His failure to address in his affidavit many of the proceedings that he unsuccessfully pursued is significant.  The account that I have given does not purport to list each of the many proceedings that Mr Labaj has initiated in recent years without success.  The proceedings to which I have referred show that his lack of success on numerous occasions was because a court or tribunal concluded that the proceeding was incompetent or he had no reasonable grounds to pursue it.  In the absence of any satisfactory evidence from Mr Labaj, I have no sound reason to question the correctness of the conclusions reached by courts on a number of occasions that proceedings filed by Mr Labaj were incompetent, without merit or vexatious.

[54] Mr Labaj’s bald assertions that certain proceedings were “not vexatious” carry little weight.

[55] The evidence satisfies me that Mr Labaj has instituted or pursued proceedings without reasonable ground.  These include unmeritorious attempts to challenge decisions made by the Industrial Court and appeals to the Court of Appeal that had no merit.  The proceedings that were instituted or pursued without reasonable ground constitute “vexatious proceedings” within the meaning of the Act.

[56] Whether vexatious proceedings were “frequently” instituted or conducted must be looked at in the context of litigation.  Frequency is a relative term.  I am satisfied that Mr Labaj has frequently instituted or conducted vexatious proceedings. 

[57] In addition to the proceedings that were pursued without success and without any prospect of success, and which ended in orders for their dismissal with costs, Mr Labaj instituted other proceedings which were either discontinued or not prosecuted.  No adequate explanation has been given for the failure to prosecute them.

[58] It is, of course, for the applicants to prove that Mr Labaj has frequently instituted or conducted vexatious proceedings, not for Mr Labaj to prove the contrary.  I find that the applicants have done so by reference to the numerous proceedings that culminated in their dismissal by courts.  Mr Labaj’s inadequate explanation for his failure to prosecute many other proceedings and the discontinuation of others is noteworthy.  Overall, his conduct of numerous unsuccessful proceedings over a relatively short time, and the reasons for his lack of success in the proceedings that were dismissed or struck out, persuade me to make a declaration.

Conclusion

[59] I conclude that the respondent is a person who has “frequently instituted or conducted vexatious proceedings” within the meaning of s 6 of the Act. 

[60] If I had not been so satisfied, the respondent’s institution and conduct of numerous unmeritorious or incompetent proceedings justifies the discretionary exercise of the Court’s inherent jurisdiction to restrict vexatious proceedings.

[61] Mr Labaj has instituted and conducted numerous proceedings over recent years to the unfair detriment of other litigants, being proceedings that were instituted or pursued without reasonable grounds.  In addition to their impact on other litigants, such proceedings “divert the Court’s resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources”.[47]

Appropriate relief

[62] A declaration should be made that the respondent is a person who has frequently instituted or conducted vexatious proceedings in Australia.

[63] Subject to clarification of the status of Mr Labaj’s application for special leave to appeal from the decision of the Court of Appeal in Re Castleplex Pty Ltd (in liq)[48] the further orders of the Court will be:

 

(a)The respondent by himself, his servants and agents, is prohibited from instituting proceedings (apart from an appeal from these orders) in Queensland without the prior leave of a judge of the Trial Division of the Supreme Court.

 

(b) The respondent is to pay the applicants’ costs of and incidental to the application on a standard basis.

[64] Such an order does not preclude the respondent from instituting proceedings that have merit.  Instead, it requires the prior leave of a judge before further proceedings are instituted.

[65] I do not propose to make an order that would prevent Mr Labaj from pursuing appropriate relief in the event that the High Court grants him special leave in the matter of Re Castleplex Pty Ltd (in liq) and allows his appeal.  However, any proviso to the order I propose to make in respect of that contingency should be appropriately worded.  This is because Mr Labaj has pursued unmeritorious litigation in the past against another company in liquidation and its liquidator.  The pursuit of vexatious proceedings which must be defended at substantial cost diminishes the assets available to a company’s creditors. 

[66] Mr Labaj’s supplementary submissions on 9 April 2010 concluded with the submission that the present application should be declared a vexatious proceeding, and the applicants be declared vexatious litigants.  He further submitted that the Court “should considers (sic) some exemplary damages or some other sanctions be imposed on applicants for breaching of their duties under the Corporations Act.”  Such a submission accords with the philosophy that the best form of defence is attack.  However, it is indicative of Mr Labaj’s propensity to assert doubtful or baseless claims.  The applicants should be protected against the real prospect of having to defend vexatious proceedings instituted by Mr Labaj.  So should other persons.

[67] The applicants should submit draft orders within seven days.

Footnotes

[1] Section 6(1)(a) of the Act.

[2] See the dictionary in the Act’s Schedule.

[3] Labaj v Lollo Plumbing Pty Ltd (in Liq) & Ors [2005] QCA 86.

[4] Cf Brisbane City Council v Russell Gordon Haig Mathews [2006] QSC 25 at 4.

[5] Section 4 of the Act.

[6] Section 5(1)(d) of the Act.

[7] Section 5(1)(e)of the Act.

[8] Section 6(1)(a) of the Act.

[9] See dictionary in the Act’s Schedule.

[10] [2006] QSC 86 at [30].

[11] [1996] 2 Qd R 218 at 220.

[12] (1992) 66 ALJR 815 at 816, followed in Lohe v Tait [2002] QSC 399 at [21].

[13] Ibid.

[14] [2006] QSC 086 at [26].

[15] [2004] 1 WLR 88 at 93.

[16] Uniform Civil Procedure Rules 1999 (“UCPR”) r 5.

[17] UCPR rr 681, 682.

[18] Re Castleplex Pty Ltd (in liq) [2010] QCA 59.

[19] Lohe v Tait (supra) at [23].

[20] [2003] QDC 233 (D442/02).

[21] Affidavit of John Labaj, filed by leave on 28 October 2009, at 3.

[22] [2004] QCA 331.

[23] [2004] QCA 331 at 3 per McMurdo P.

[24] [2005] QDC 28.

[25] Labaj v Collins [2005] QDC 028 at [17].

[26] [2005] QCA 221.

[27] Ibid at [11].

[28] Affidavit of John Labaj, filed by leave on 28 October 2009, at 3.

[29] Labaj v Collins [2005] QCA 221 at [3].

[30] Affidavit of John Labaj, filed by leave on 28 October 2009, at 5.

[31] Exhibit “ST-14” to the first affidavit of Scott Taylor filed 9 October 2009 (CFI 2).

[32] Labaj v Trident Industrial Pty Ltd [2005] QCA 217 at 2.

[33] Exhibit “ST-15” to the first affidavit of Scott Taylor filed 9 October 2009 (CFI 2).

[34] Affidavit of John Labaj, filed by leave on 28 October 2009, at 5.

[35] [2005] QCA 410 at 2.

[36] ST-17 to CFI 2.

[37] Affidavit of John Labaj, filed by leave on 28 October 2009, at 5.

[38] [2004] QSC 189 at 4.

[39] Ibid.

[40] (2005) 179 QGIG 365.

[41] [2004] QCA 96.

[42] Labaj v Lollo Plumbing [2004] QCA 96 at 4.

[43] Labaj v Lollo Plumbing [2004] QCA 96 at 6.

[44] [2005] QCA 86 at [15].

[45] Ibid at [18].

[46] [2009] QCA 225.

[47] Bhamjee v Forsdick (supra).

[48] [2010] QCA 59.

Close

Editorial Notes

  • Published Case Name:

    Hambleton & Anor v Labaj

  • Shortened Case Name:

    Hambleton v Labaj

  • MNC:

    [2010] QSC 124

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    29 Apr 2010

Litigation History

Event Citation or File Date Notes
Primary Judgment [2010] QSC 124 29 Apr 2010 -
Appeal Determined (QCA) [2011] QCA 17 15 Feb 2011 -

Appeal Status

{solid} Appeal Determined (QCA)