Hambleton v Labaj[2011] QCA 17

SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P: I agree with White JA’s reasons for dismissing this appeal with costs, and with her Honour’s proposed orders.

[2]  WHITE JA: The respondents who are the liquidators of Castleplex Pty Ltd (“the liquidators”), sought orders pursuant to the Vexatious Proceedings Act 2005 (“the Act”) declaring the appellant (“Mr Labaj”) to be a person who has frequently instituted and conducted vexatious proceedings in Australia within the meaning of those terms in s 6 of the Act.  The liquidators also sought orders staying certain proceedings instituted by Mr Labaj, namely,

●   CA 6698 of 2009 – Labaj v Hambelton and Murphy as liquidators of Castleplex Pty Ltd (extension of time application to appeal order of Peter Lyons J made 11 May 2009)

●   CA 6483 of 2009 – Labaj v Hambleton and Murphy as liquidators of Castleplex Pty Ltd (appeal of decision of Martin J) BS 4198 of 2009 of 22 May 2009 re proof of debt

Those proceedings were disposed of by this Court on 19 March 2010[1], which obviated the need for a stay.  The liquidators sought a general order restraining Mr Labaj from instituting any proceedings in any Queensland court (apart from an appeal in the instant proceedings) without leave of a judge in the Trial Division.  In the alternative, the liquidators sought an order restraining the proceedings against the liquidators of Castleplex Pty Ltd.

[3] On 29 April 2010 the learned primary Judge made the following orders:

“1.It is declared that the respondent, John Labaj, is a person who has frequently instituted or conducted vexatious proceedings in Australia.

It is further ordered that:

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

3.The respondent is to pay the applicants’ costs of and incidental to the application on the standard basis.”

His Honour had waited until this Court gave its decisions in Mr Labaj’s appeal and application for leave to appeal in what it is convenient to describe as the Castleplex matters before delivering judgment.  Before doing so, his Honour invited the parties to make any further submissions[2] if they were so advised arising out of the reasons for those decisions.  Mr Labaj wished to respond by further submissions and by filing an affidavit on 7 April 2010 which sought to revisit what was or could have been argued on 29 October 2009 when the application first came before his Honour.  His Honour declined to consider this further material.  The further submissions and affidavit have been included in the Appeal Book by Mr Labaj over objection by the liquidators.  I will return to that matter.

[4] In their counsel’s outline of argument the liquidators submitted that:[3]

“7.…

(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 a [further] interlocutory application in proceedings against the applicants seeking a stay of certain orders pending appeal …

8.Within a 20 month period, Mr Labaj commenced 31 proceedings in the District and Supreme Courts (without reference to the primary proceedings in the case of appeals to the District Court).  Subject to Mr Labaj’s submissions to the contrary it appears that he was unsuccessful (or did not prosecute) all but one of those proceedings.

9.The proliferation of matters was only stopped by his bankruptcy.  During the period of his bankruptcy, Mr Labaj commenced a proceeding for monies owing. Since his discharge a further five proceedings have been instituted in the four months between February and June 2009.”

[5] To support their application the liquidators’ solicitors searched the District and Supreme Court files electronically and produced the file summary of each matter commenced by Mr Labaj and any reasons for judgment in respect of any of those matters.  The learned primary Judge made brief reference to many of those proceedings.  From the material supplied, for the most part, it was not possible to do anything more than mention the proceeding because the file summary told little about the litigation and the defendants in those proceedings were neither involved in nor contacted (where still in existence) for this application.

The Castleplex proceedings

[6] Mr Labaj’s firm, J & L Consulting Services, entered into a contract with Castleplex on 1 May 2007, described as a consultancy agreement, to provide services to Castleplex.  Mr Labaj was to be paid under the terms of that agreement $110,000 per each 12 months of services rendered by instalment.  Mr Labaj terminated the consultancy agreement on 26 October 2007 for reasons which, if made out, were reasonable.  He sued Castleplex in the District Court for fees owing under the agreement.  The proceedings were defended and Castleplex brought a counterclaim for damages.  As related in the reasons for decision in Labaj v Hambleton and Murphy[4], on 18 March 2008, on the eve of the hearing of a winding-up application against it, Castleplex appointed Messrs Hambleton and Murphy as administrators.  On 30 April 2008 a meeting of creditors resolved that Castleplex, which was a building contractor, be wound up and the administrators be appointed as liquidators.  As a consequence, the proceedings in the District Court were stayed.  Mr Labaj filed a proof of debt with the liquidators in the amount of $110,054.83 which he had claimed in the District Court proceedings.  The liquidators allowed two aspects of the proof of debt.  An order had been made in the Supreme Court in favour of Mr Labaj against Castleplex relating to an application for an adjournment on 10 December 2007.  Costs were assessed and the liquidators did not contest those costs.  The second related to the claims pursuant to the consultancy agreement.  The liquidator allowed part of those claims up until the date of termination but not the claim for damages thereafter.

[7] Mr Labaj filed an application in the Trial Division seeking that his proof of debt be allowed in full.  That application was listed to be heard on 11 May 2009.  On that day Peter Lyons J granted an adjournment to accommodate a request by the liquidators because of the late service of material by Mr Labaj.  His Honour ordered that Mr Labaj pay the liquidator’s costs thrown away as a result of the adjournment on the standard basis fixed in the sum of $497.20. 

[8] The matter came on before Martin J on 22 May 2009.  His Honour dismissed the application with costs.  It was from that order that Mr Labaj appealed to this Court.  He also sought an extension of time within which to seek leave to appeal the costs order made by Peter Lyons J on 11 May 2009.[5]  In his application (and supporting affidavit) he wrote that since it was a costs order in current proceedings he understood it could be appealed within the appeal of the judgment proper – an error occasionally made, even by practitioners.  In his affidavit in support of the extension of time he deposed that he had argued below that:

“… there are no [bases] in UCPR to grant the adjournment for the reasons stated and/or resulting cost, however, I was overruled by his Honour.”[6]

[9] This Court dismissed Mr Labaj’s appeal.[7]  The President agreed with McMeekin J while Fryberg J, in extensive reasons, formed a different view about the characterisation of what was described as the liquidated damages after the cessation of the consultancy agreement.  While Fryberg J expressed some disquiet about the adjournment order he accepted that, being a matter of procedure and a discretionary decision, there were few prospects of successfully challenging it.[8]  The President noted that by the time the application to extend time had been filed, Martin J had heard and determined the substantive application.  It would then be futile to grant the application.  Furthermore he was precluded from appealing that decision because he had not obtained the leave of Peter Lyons J as required by s 253 of the Supreme Court Act 1995.  An appeal from a costs order only is incompetent.[9]  Mr Labaj’s application for special leave to appeal these decisions was dismissed on the papers on 17 June 2010.[10]

[10]  Mr Labaj’s application for leave to appeal the costs order was characterised by the primary judge as “unreasonable” within the meaning of “without reasonable ground” in the Act.  The grounds of his appeal were he to be granted an extension of time were that there “are no grounds in UCPR to award the costs for reasons stated”.  There was discussion with Mr Labaj’s then legal representatives before the learned primary Judge that that was a wrong understanding of the Rules.[11]  A full reading of Mr Labaj’s material now makes it clear that he was not arguing that there was no power to order costs.  His experiences in a range of proceedings meant that he well knew that costs orders could be made. On an adjournment he had been the beneficiary of such an order by Justice Daubney on 10 December 2007.[12]  The more likely understanding of his argument is, that in the circumstances where he had filed his material the day before and the liquidators were not ready to deal with it, an adjournment ought not to have sounded in a costs order against him.  This understanding does not affect the order made in this Court on 19 March 2010 because Mr Labaj had, in any event, not obtained the leave of the judge to appeal that costs order.

[11]  Before the learned primary Judge the liquidators referred to the numerous proceedings commenced by Mr Labaj against other entities and persons to support their contention that Mr Labaj had frequently and vexatiously instituted proceedings.  It will be necessary to consider those proceedings but first the provisions of the Act need to be mentioned.

The Vexatious Proceedings Act 2005

[12]  In 2005 the Vexatious Litigants Act 1981 was abolished and in its place the Vexatious Proceedings Act 2005 was enacted.  As the Explanatory Notes reveal, the Vexatious Litigants Act 1981 did not clearly permit the court to take into account legal proceedings brought in other jurisdictions in Australia to determine the required level of recurrence.  The introduction of the Act was an initiative of the Standing Committee of Attorneys-General for a nationally consistent approach to legislation to deter and curtail the activities of vexatious litigants.[13]  The new Act contained some important changes.  In Pt 2 those who may apply for a vexatious proceedings order in relation to a person has been expanded.  In addition to the Attorney-General, the Crown Solicitor and the Registrar of the court,

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

(e)a person who has a sufficient interest in the matter”

may apply.  However, by s 5(2)

“An application may be made by a person mentioned in subsection (1)(d) or (e) only with the leave of the Court.”

Before the learned primary Judge the liquidators sought to bring themselves within s 5(1)(d), namely, that Mr Labaj had instituted or conducted a vexatious proceeding against them.

[13]  The court may make a vexatious proceedings order if it is satisfied that a person is

“s 6(1)(a)a person who has frequently instituted or conducted vexatious proceedings in Australia; or

…”

If the court reaches the necessary satisfaction on that matter it may make any or all of certain orders, relevantly,

“s 6(2)(a)an order staying all or part of any proceeding in Queensland already instituted by the person;

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

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

[14]  The court may make a vexatious proceedings order on its own initiative or on the application of a person mentioned in s 5(1).  It may not make such an order without hearing the person or giving the person an opportunity to be heard.  The court may have regard to proceedings instituted or conducted in any Australian court or tribunal including before the commencement of that provision and any orders made in any Australian court or tribunal.[14]

[15]  By s 7 the court may vary or set aside a vexatious proceedings order on its own initiative or on the application of the person the subject of the vexatious proceedings order or a person mentioned in s 5(1).  If the court sets aside a vexatious proceedings order prohibiting a person from instituting proceedings or proceedings of a particular type in Queensland, and is satisfied that within five years of the vexatious proceedings order being set aside the person has instituted or conducted a vexatious proceeding in an Australian court or tribunal, the court may reinstate the vexatious proceedings order and make any other order it considers appropriate.  It may do so on its own initiative or on the application of a person mentioned in s 5(1) but must give the person an opportunity of being heard.

[16]  The Registrar of the court must arrange for a copy of the vexatious proceedings order to be published in the Gazette and entered in a publicly available register kept for the purposes of the Act and may also arrange for details of the order to be published in another way.[15]

[17]  Part 3 of the Act deals with the consequences of vexatious proceedings orders.  A person may not institute proceedings or proceedings of the particular type in Queensland without the leave of the court.[16]  Neither may another person acting in concert with the person do so without the leave of the court.  If a proceeding is instituted in contravention of that prohibition then it is permanently stayed.[17]

[18]  A person who is subject to a vexatious proceedings order may apply to the court for leave to institute a proceeding subject to the order.  That person must file an affidavit with the application listing all occasions on which the applicant has applied for leave, all other proceedings instituted by the applicant in Australia, including before the commencement of the Act and disclose all facts material to the application “whether supporting or adverse to the application, that are known to the applicant”.[18]  An applicant applying for leave may not serve a copy of the application or the affidavit on anyone unless directed to do so by the court. 

[19]  The court must dismiss an application made under s 11 for leave to institute a proceeding if it considers that the affidavit does not substantially comply with s 11(3) or the proceeding for leave is itself a vexatious proceeding, and may dismiss the application even if the applicant does not appear at the hearing.[19]

[20]  Before the court grants an application for leave to institute a proceeding it must order that the applicant serve each relevant person with a copy of the application and affidavit and a notice that the person is entitled to appear and be heard on the application.[20]  A relevant person is the person against whom the applicant proposes to institute the proceeding[21], the Attorney-General, the Crown Solicitor and the Registrar of the court if the Registrar applied for the vexatious proceedings order initially, and any person, who with the leave of the court, applied for a vexatious proceedings order being a person mentioned in s 5(1)(d) or (e) and whom the court considers should be served.

[21]  As is plain, the consequences for a person against whom a vexatious proceedings order is made are serious and onerous.  The application for leave casts a significant burden upon such a person seeking to set aside that order.  The wide-ranging nature of the Act’s reach can be seen from the definitions in the Dictionary.[22]  A “proceeding” includes:

“(a)any cause, matter, action, suit, proceeding, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal; and

(b)any proceeding, including any interlocutory proceeding, taken in connection with or incidental to a proceeding pending before a court or tribunal; and

(c)any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.”

[22]  “Institute” in relation to proceedings includes:

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

…

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

[23]  “Proceedings of a particular type” includes:

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

(b)proceedings against a particular person; and

(c)proceedings in a particular court or tribunal.”

[24]  “Vexatious proceeding” includes:

“(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; and

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

[25]  The Act does not affect any inherent jurisdiction of the court or any powers a court has other than under the Act to restrict vexatious proceedings.[23]

Rule 389A of the UCPR

[26]  At much the same time as the Act came into force[24] r 389A was introduced into the UCPR.[25]It provides:

“(1)This rule applies if the court is satisfied that a party (the relevant party) to a proceeding (the existing proceeding) has made more than 1 application in relation to the existing proceeding that is frivolous, vexatious or an abuse of process.

(2)The court may make an order under this rule on application by a party to the existing proceeding or on its own initiative.

(3)The court may order that –

(a)the relevant party must not make a further application in relation to the existing proceeding without leave of the court; or

(b)the relevant party must not start a similar proceeding in the court against a party to the existing proceeding or against a party to the existing proceeding and any other person without leave of the court.

(4)The Supreme Court may also order that the relevant party must not start a similar proceeding in another court against a party to the existing proceeding or against a party to the existing proceeding and any other person without leave of that court.

(5)A court may dismiss an application made to the court in contravention of an order made under subrule (3) or (4) without hearing the applicant or another party to the application.

(6)A court may at any time vary or revoke an order made by it under this rule.

(7)If the Supreme Court makes an order under subrule (4) or varies or revokes an order made under subrule (4), the registrar of the Supreme Court must advise the registrars of the other courts.

(8)Practice directions may set out procedures in relation to an application or order made under this rule.

(9)This rule does not limit any inherent or other power of a court or judge.

(10)In this rule –

application in relation to the existing proceeding includes an appeal in relation to the existing proceeding.

similar proceeding, in relation to an existing proceeding, means a proceeding in which –

(a)the relief claimed is the same or substantially the same as the relief claimed in the existing proceeding; or

(b)the relief claimed arises out of, or concerns, the same or substantially the same matters as those alleged in the existing proceeding.”

There are no definitions of “frivolous”, “vexatious” or “an abuse of process” but, it might be inferred, in addition to the meaning which has been accorded to those expressions where they appear in other rules, for example, rr 15, 162 and 171, and in authorities such as Williams v Spautz[26] considering “abuse of process”, resort might also be had to the provisions of the Act. 

[27]  The liquidators did not seek relief under this rule although they did employ the catchall “such further or other Order …” in their application.  It is a useful rule and not confined, as are applications under the Act, to applications in the Supreme Court.

Previous proceedings commenced by Mr Labaj

[28]  In his affidavit filed on 28 October 2009 Mr Labaj responded to the liquidators’ solicitor’s affidavit giving his explanation for a number of the mentioned proceedings.  Mr Labaj deposed that during his 30 years of conducting business in South Australia he had commenced only two legal proceedings, one related to his business and the other to a workplace injury claim.  He denied that any of the proceedings set out in the solicitor’s affidavit were vexatious or frequently instituted.  He deposed that the majority of the proceedings arose from his employment with Lollo Plumbing Pty Ltd (in liquidation) and a WorkCover claim arising from a workplace injury whilst employed by Lollo Plumbing.

[29]  Mr Labaj was made bankrupt on the application of the Commonwealth Bank of Australia in the Federal Magistrates Court in South Australia on 18 September 2000 and released on 5 October 2003.  A creditor’s petition by Tricom Equities Limited filed on 30 March 2005 was dismissed on 20 April 2005, but a further petition resulted in Mr Labaj’s second bankruptcy from 3 June 2005 to 11 August 2008.

[30]  Mr Taylor, the liquidators’ solicitor, arranged the material by referring to the court in which they were instituted, including appeals to that court rather than by reference to the parties and subject matter of the proceedings, which makes it difficult to summarise those proceedings and to give a clear overview.  Mr Labaj’s response was not always responsive but he has attempted in the affidavit which he filed below to resist the application to refer to issues between the parties.  He explained:

“… [The] majority of these actions stems from my employment with Lollo Plumbing Pty/Ltd (In liquidation) and breach of contract on part of Lollo Plumbing Pty/Ltd (In liquidation) in relation to that employment, and WorkCover claim resulting from workplace injury I suffered while in employment of Lollo Plumbing.  None of these actions was vexatious or frequently instituted or conducted.”[27]

[31]  The following is a summary of some of those proceedings, most of which were referred to in his reasons by the learned primary Judge.

●  Labaj v Bevan

[32]  There are a number of proceedings involving these parties.  Mr Labaj appealed from a Magistrate’s decision in Townsville dated 20 November 2002 concerning a solicitor, Peter Curtis Bevan, who had withheld certain of Mr Labaj’s documents.  The Magistrate dismissed the claim which he appealed to the District Court, successfully, he deposed.  The file summary shows that in 2004 the proceedings were dismissed for want of prosecution in the District Court. 

[33]  Mr Labaj filed a claim on 5 July 2004 against Mr Bevan for damages for negligence.  He also filed a second statement of claim on the same day pleading as material statements of fact that Mr Bevan obtained from Mr Labaj a bundle of legal and personal documents in order to provide him with legal advice.  Some two years later Mr Labaj required those documents for a court appearance which Mr Bevan declined to return.  A third statement of claim was filed in the Townsville registry of the Supreme Court.  On 3 August 2004 Douglas J transferred the claim in the Brisbane Supreme Court to the District Court in Townsville.  His Honour noted:

“The pleading as it currently stands is defective in a number of respects.  It lacks the normal particularity that one would expect to permit the pleading to conform to the Uniform Civil Procedure Rules.  That, no doubt, is a matter for the defendant to pursue in the proceedings in Townsville, but it seems to me that, with proceedings already on foot in Townsville covering substantially the same area of factual dispute as this claim, it would be appropriate for me to order that this proceeding be remitted to the District Court in Townsville for hearing with proceeding number D442 of 2002, between the same parties.”[28]

Labaj v Lollo Plumbing Pty Ltd

●  Labaj v Lollo Plumbing Pty Ltd (15/04) filed 14 January 2004

[34]  Mr Labaj explained that this was an appeal from a decision of the Magistrates Court related to a breach of contract and unfair dismissal arising out of his employment with Lollo Plumbing.  The last notation on the file is an order of 9 February 2004 filed on behalf of Lollo Plumbing.

●  Labaj v Lollo Plumbing Pty Ltd and Others (968/03)

[35]  Proceedings were commenced by originating application in Townsville and subsequently a statement of claim was filed.  The court order sheet shows that Mr Labaj requested default judgment on 15 June 2004. 

●  Labaj v Lollo Plumbing Ltd (in liq) and Others (BS10176/03)

[36]  Byrne J ordered that an application filed on 10 December 2004 be dismissed and Mr Labaj pay the respondent’s costs fixed in the sum of $200.  Mr Labaj was ordered to make no further application in or in connection with the proceedings commenced in Townsville by 968/03 or 10176/03 in the Brisbane registry until those costs were paid.

●  Labaj v Lollo Plumbing Pty Ltd and Others (11557/03) filed 12December2003

[37]  Mr Labaj appealed to this Court[29] against an interlocutory order transferring his proceeding to the Townsville Registry.  These proceedings arose out of claims for breach of employment and statutory breaches under the Industrial Relations Act and the WorkCover Act Queensland against Lollo Plumbing and others associated with the company.  This appeal was dismissed on 2 April 2004.  Some of Mr Labaj’s submissions recorded in the judgment demonstrate that Mr Labaj completely misunderstood the court processes.  It also appears that a degree of irrationality had entered his submissions because the President noted that he had submitted that there was no evidence that opposing counsel or her instructing solicitors were actually appearing for those persons.  Her Honour described that submission as “patently without any merit and … baseless”.

●  Labaj v Lollo Plumbing Pty Ltd and Jessup (2905/04) filed 30 March 2004

[38]  There is little to learn from the file summary except that the last order is by Douglas J on 7 May 2004 dismissing the application.

●  Labaj v Lollo Plumbing Pty Ltd (Administrator Appointed) & Jessup (3248/04) filed 13April 2004

[39]  Mr Labaj commenced proceedings against Bennett, Jessup, Nicholson and Lollo Plumbing.  The file summary notes an order by Douglas J made 18 March 2005 as the last activity.

●        Labaj v Lollo Plumbing (in liq) and Others (CA Nos 8179, 11000 and 11245 of 2004)

[40]  Mr Labaj lodged appeals in this Court from orders of Brabazon DCJ of 2 September 2004 whereby his Honour refused an application for judgment in default of appearance by the defendants; an application for an extension of time within which to appeal against a decision of Cullinane J given on 3 September 2004 whereby his Honour ordered that a separate action by Mr Labaj, then pending in Townsville, be dismissed against Lollo Plumbing Pty Ltd and the claim be struck out as against the other defendants with leave to re-plead; the liquidator of Lollo Plumbing was joined as a respondent to the appeal; and an appeal from an order of Douglas J given of 15 December 2004 dismissing Mr Labaj’s application to admit his claims in the liquidation of Lollo Plumbing.  This Court dismissed each appeal:

“[15]… 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.  Accordingly, the appellant should be ordered to pay the respondents’ costs including reserved costs on the indemnity basis.

…

[18]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.”[30]

●  Labaj v Tricom Equities Limited (224/04) filed 20 January 2004

[41]  Mr Labaj deposed that the proceedings were initiated by Tricom in New South Wales and transferred to the District Court in Queensland.  He stated “this action is in fact defence and counterclaim against the original claim against me by Tricom”.  He deposed that the action related to business conducted by the parties in share trading.  The whole proceeding was discontinued on 26 September 2005.

●  Labaj v Collins (225/04) filed 20 January 2004

[42]  Mr Labaj brought proceedings against a psychologist retained by WorkCover.  In the District Court it was held that s 576 of the Workers’ Compensation and Rehabilitation Act 2003 prohibited bringing an action by a claimant against the author of a report to WorkCover.  Mr Labaj appealed that decision[31] successfully.  Subsequently an application for summary judgment was dismissed.  On 2 September 2004 Brabazon QC DCJ dismissed Mr Labaj’s application for default judgment and dismissed the claim.

●  Labaj v Trident Industrial Pty Ltd (3377/05) filed 26 April 2005

[43]  Mr Labaj commenced an appeal against Trident Industrial Pty Ltd.  On 17 June 2005 the President dismissed the appeal[32] on the grounds that it was incompetent because it was not an appeal from a final order and leave to appeal was required.

●  Labaj v BCC and Mark Brown; Labaj v Heffernan and the Department of Corrective Services (2001/04 and 4423/04 and 1910/05); Appeal No. 403 of 2004

[44]  These were proceedings brought by Mr Labaj in relation to a prosecution and fine by the Brisbane City Council for not having his dog on a lead.  Mr Labaj deposed that he preferred to deal with the matter in court rather than pay the fine.  This Court dismissed his application for leave to appeal.[33] 

●  Labaj v Mathew (D783/05) filed 9 March 2005

[45]  These proceedings were instituted by Mr Labaj for damages because Dr J Mathew, a psychiatrist, reported to WorkCover in a way that meant his mental illness was not treated and escalated so that he was hospitalised in “Caboolture Mental Hospital”.  The court file reveals that the statement of claim was struck out with leave to file a further statement of claim.  Mr Labaj appealed that order which was dismissed with costs.[34]

●  Labaj v Contrax (Queensland) Pty Ltd (1172/05) filed 6 April 2005

[46]  Mr Labaj deposed that these proceedings were for damages arising out of breach of an employment contract with Contrax.  He sought summary judgment which was dismissed.  Nothing is recorded after 17 June 2005.

●  Labaj v Bone and Queensland Police Service (1267/05) filed 12 April 2005

[47]  Mr Labaj deposes that he was defending an allegation of speeding and exercised his option to appear in court instead of paying a fine.  On 24 August 2007 the court endorsement indicates that appeal from the Magistrate’s decision pursuant to s 222 of the Justices Act 1886 was dismissed.

●  Labaj v WorkCover Queensland (BS 8798/03) filed 3 October 2003

[48]  Mr Labaj applied for judicial review of a decision of the Industrial Court hearing an appeal from an Industrial Magistrate rejecting Mr Labaj’s claim for benefits under the WorkCover Queensland Act 1996.  Douglas J dismissed the application on 21 May 2004.[35]  His Honour said:

“The issues dealt with by the President included whether the evidence before the Industrial Magistrate justified the factual finding made by him that he was not satisfied that there was any medical evidence supporting the proposition that the applicant’s employment significantly contributed to his injury.

The President concluded that while other persons may have taken a different view of the medical evidence, the view adopted by the Industrial Magistrate was plainly open to him.  From what I have seen of that evidence, that conclusion by the President seems to me to be correct.”

●  Carwyn Constructions Pty Ltd v J & WL Consulting Services and John and Wendy Labaj (10291/08) filed 14 October 2008

[49]  Proceedings were commenced by Carwyn Constructions Pty Ltd against Mr and Mrs Labaj and their consultancy firm to set aside a statutory demand.  On 7 January 2009 Byrne SJA set aside the statutory demand and ordered costs on the indemnity basis.  Mr Labaj and the other parties commenced an appeal challenging his Honour’s construction of s 459H(1) of the Corporations Act 2001 (Cth).  The statutory demand had arisen when Mr Labaj’s firm served a statutory demand upon Carwyn Constructions for $67,826.18 under a consultancy agreement.  It was held that there was a genuine dispute between the parties.  In his reasons, Keane JA, with whom Holmes JA and Philippides J agreed, stated that Mr Labaj’s construction of s 459H was “untenable” and rejected other submissions which would have involved this Court making findings of fact about the dispute.[36]

●  Tricom Equities Ltd v Labaj[37]

[50]  Tricom Equities Ltd presented a creditor’s petition on 30 March 2005.  On 20 January 2004 Mr Labaj had commenced proceedings in the District Court against Tricom claiming damages for negligent advice relating to share transactions.  Losses were said to be in the order of $100,000.  Mr Labaj made three applications for summary judgment against Tricom.  On the last he was ordered to pay costs on the indemnity basis.  The petition for bankruptcy arose out of orders for costs and costs assessments in relation to proceedings in the District Court.  The Federal Magistrate found that any cause of action that Mr Labaj might have against Tricom was after acquired property during his bankruptcy and did not re-vest in the debtor upon his discharge so as to maintain a counter-claim.

Standing

[51]  Mr Labaj challenges the standing of the liquidators to bring these proceedings.  The learned primary Judge concluded that they should be given leave to make the application because they fell within s 5(1)(d).  His Honour did not make a formal order granting leave.  That would seem to have been an oversight since he refers to doing so in paras 17 and 26 of his reasons.[38]  Although the liquidators’ submissions before his Honour referred to both s 5(1)(d) and (e), their reply submissions in response to Mr Labaj’s submissions relating to s 5(1)(e) said it was

“no part of the Applicants’ case at the October hearing that they relied upon subs. 5(1)(e) of the Act to establish standing for the Application”. 

Mr V Brennan who was counsel below and counsel on appeal did not specifically address standing in his written submissions on the appeal.

[52]  The category of persons who have standing to bring an application was extended by the Act from the previous statutory regime.  Under the Vexatious Litigants Act 1981 only the Attorney-General, the Solicitor-General, the Crown Solicitor or the Registrar of the Supreme Court could bring an application.  Prior to that enactment, O 60A of the Rules of the Supreme Court provided that a Crown Law Officer or the Crown Solicitor or the Registrar of the Court could apply for an order that a person who “frequently and without reasonable ground instituted vexatious legal proceedings…” may not without leave of the court institute legal proceedings.  That rule was inserted in 1943.[39]  When legislative intervention was first deemed necessary to control certain litigants only specified persons holding some responsible office could bring the application.[40]  The first legislative intervention in England was the Vexatious Actions Act of 1896[41] introduced to curb the litigious enthusiasm of one person.  Only the Attorney-General could bring such an application.  The extension of standing to persons other than the traditional holders of public office was not discussed in the Explanatory Note to the Vexatious Proceedings Bill. 

Inherent jurisdiction

[53]  The learned primary Judge said:[42]

“If I had not been so satisfied [that Mr Labaj fell within s 6 of the Act] 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.”

Keane JA, with whom McPherson JA and Philippides J agreed, noted in von Risefer v Permanent Trustee Co Pty Ltd[43], that it has long been established that a court has the power to ensure that its own processes are not abused.  The starting point was said in Bhamjee v Forsdick (Practice) Note[44] to be the judgment of Alderson B in Cocker v Tempest[45] where his Lordship explained:

“The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice.  The exercise of the power is certainly a matter for the most careful discretion…”

In AB v John Wyeth & Brother Ltd[46] Brook LJ[47], after a review of the English authorities concluded:

“The first [theme] is that the court has an inherent jurisdiction to step in and prevent its process being abused for the purpose of injustice, or in order to maintain its character as a court of justice.  The second is that the court should be very slow to exercise this summary power … The third is that the category of case in which the court should be willing to exercise this power is, almost by definition, never to be closed.”[48]

[54]  That the inherent power was not at large was made clear in Commonwealth Trading Bank v Inglis.[49]  An application was brought by a defendant in the original jurisdiction of the High Court that:

“no legal proceedings should be instituted or applications in existing proceedings made or appeals lodged by the respondents … without leave of a Justice of the court ‘by reason of their having habitually and persistently and without any reasonable ground instituted vexatious legal proceedings …’”[50]

Order 62 r 6(1) of the High Court Rules permitted public officials to bring such an application but not private individuals.  The court concluded that while the inherent jurisdiction of the court permitted restraining orders to be made to prevent an abuse of its process in pending proceedings, no previous authority had extended the power of intervention to prevent the commencement, except by leave, of future legal proceedings.  Barwick CJ and McTiernan J said:[51]

“It may be that the exercise of supervision, by means of a requirement that leave should be obtained for the bringing of proceedings, could have been justified logically as a proper safeguard against abuse of the court’s process in cases where it was shown to be probable that a person would continue bringing groundless proceedings.  But, in our opinion, it is apparent that the courts, both in England and in this country, have declined to regard themselves as having power to do so, except where such power has been conferred upon them by an Act of Parliament or by rules promulgated under statutory authority.  This is demonstrated, not merely by the absence of reported cases in which such orders have been made under the inherent power of the court, but by the fact that it has been thought necessary to deal with specific cases of the bringing of numerous unfounded proceedings by legislation rather than by invoking the inherent power of the court.  There have been cases in which the vexatious character of the proceedings was so clear that it cannot be supposed that the court would have hesitated to exercise such a power if it had been regarded as existing.”

[55]  Later in their reasons their Honours said that the nature of the legislation about vexatious litigants and the history leading to enactment showed that the provisions were intended as grants of additional power:

“It is unacceptable, in our opinion, to say, as the applicant submits, that the enactment of such a provision as that contained in O 63, r 6 leaves unaffected an inherent power which the court is said to have to make an order of the kind for which that rule provides.” [52]

Their Honours declined, therefore, to make an order that no legal proceedings could be instituted by the respondent without the leave of the court but held that the inherent jurisdiction encompassed a power to restrain in relation to pending proceedings.  Their Honours concluded:[53]

“In our opinion, the cases to which we have referred provide authority for the proposition that there is an inherent power in the court to control the bringing of applications in the course of an action of which the court is seized for the purpose of preventing a party abusing the process of the court.  When positive provisions directed to the same end have been made by statute or by rules of court, it may be necessary to consider whether the inherent power has been wholly or partly superseded.  But, in our opinion, the power by virtue of which the applicant seeks to obtain an order that no applications in existing proceedings should be made without leave has not been abrogated by the rules of court.”

[56]  In von Risefer Keane JA, having quoted that passage from Commonwealth Trading Bank v Inglis, said:[54]

“… the Vexatious Litigants Act 1981 (Qld) is concerned with the creation of the status of the vexatious litigant and the restriction of that person’s ability to institute any proceedings, save by leave of the Supreme Court, while the status subsists.  The inherent jurisdiction caters specifically for the protection of identified parties to existing litigation.”

As mentioned above, the inherent jurisdiction is expressly preserved in the Act.  Keane JA suggested[55] that the Supreme Court need not resort to the inherent jurisdiction to prevent abuse of its processes as whatever power might be needed may be found in s 58 of the Constitution of Queensland 2001.[56]

[57]  Insofar as the liquidators sought to restrain Mr Labaj from bringing further proceedings against them as liquidators of Castleplex or future proceedings of the same or a very similar kind, resort could be made to the inherent jurisdiction of the court.  For orders more extensively couched, as here, preventing any proceedings from being instituted, that power is found in the Act.

Discussion

Standing

[58]  Mr Labaj objected to the learned primary Judge describing the liquidators’ standing in this way:

“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’.”[57]

He argued, correctly, so far as it goes, that without standing the liquidators cannot proceed with their application.  However, the issue of standing in s 5(d), upon which they rely, depends upon the liquidators being persons against whom “another person has instituted or conducted a vexatious proceeding”.[58]  Thus it is necessary to characterise at least one proceeding brought by Mr Labaj against the liquidators as “vexatious” to give them standing.  This, the learned primary Judge did by referring to the two appeals in this Court concerning Castleplex: 

“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.” [59]

His Honour noted that Mr Labaj sought a stay of those orders pending the outcome of the appeal which was dismissed with costs by the Chief Justice on 17 September 2009.

[59]  His Honour thought it sufficient to determine the question of standing to refer to the “second appeal”, that is, the application for an extension of time to appeal the order for costs made by P Lyons J.  Mr Labaj submitted that this was not “an appeal”.  The definition of “institute” in relation to proceedings includes making an application to start an appeal.  The learned primary Judge thought that the contention was that there was no power in the UCPR to award costs.  The lawyer who appeared for Mr Labaj accepted that such an argument would be without justification.  As has been discussed above, Mr Labaj explained that the point he wished to make was that there was no power to award costs in the circumstances that the adjournment was granted on the application of the liquidators.  That was not explained to his Honour and the expressed ground of appeal is obscure.  His Honour noted that the “second appeal” was in any event incompetent because it was an appeal as to costs only without first obtaining the leave of the judge who made the order:

“I am satisfied that the ‘second appeal’ was instituted and pursued without reasonable ground, and therefore was a vexatious proceeding.”[60]

His Honour was entitled to come to that view of the “second appeal” and accord standing to the liquidators.  The next step was to exercise his discretion whether to make an order and its extent. 

The Castleplex appeals and supplementary submissions

[60]  His Honour noted that on 19 March 2010 this Court had ordered that each Castleplex proceeding brought by Mr Labaj be dismissed with costs.[61]  He noted the President’s observation that the application for an extension of time was “futile” because Mr Labaj had not obtained the leave of the primary Judge as required by s 253 of the Supreme Court Act 1995.  His Honour noted that Fryberg J had dissented in respect of the first appeal.

[61]  His Honour considered the issue of the supplementary submissions.  His Honour had given the parties an opportunity to make supplementary submissions in relation to matters arising in respect of the appeal and application for leave.  Mr Labaj sought to re-agitate issues which had been argued fully on the application.  The liquidators objected to the re-opening of submissions which was upheld by his Honour.  It is a ground of Mr Labaj’s appeal that he was denied the opportunity to be heard.  He referred to s 6(4) of the Act which requires a court to allow a person who might become the subject of a vexatious proceedings order the opportunity to be heard.  He also relied upon a statement by Fryberg J in Brisbane City Council v Mathews.[62]In that proceeding counsel for the Brisbane City Council had appended a schedule to his submissions identifying features in other proceedings which had been instituted by Mr Mathews.  His Honour said, in a passage relied upon by Mr Labaj,

“I have also permitted Mr Mathews to go behind the reasons for judgment and to explain to the Court why, in his view, the proceedings were not vexatious.”[63]

[62]  Mr Labaj had ample opportunity to explain those many proceedings in his affidavit filed by leave on 28 October 2009 when he responded to Mr Taylor’s affidavit.  He chose not to provide a fuller description of the proceedings and why he brought many inappropriate applications, for example, for summary judgment, or why he commenced duplicate proceedings.  Instead, he tended to confine his response on occasion to a brief summary of the cause of action and to assertions that they were not vexatious.  The finality of proceedings must be preserved.  If new material is to be sought to be introduced it must satisfy the description of “fresh” evidence or, at the least, “new” evidence.  Mr Labaj was given appropriate opportunity to explain his previous extensive litigation which founded the application to declare him vexatious but chose to do so in a very limited way.  His Honour was correct to refuse him leave to rely on the affidavit of 7 April 2010.  Neither may he rely on it in this Court.

[63]  His Honour noted[64] that Mr Labaj had sought to explain in his written submissions of 9 April 2010 his conduct in commencing the numerous proceedings relied upon by the liquidators:

“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 reasonings’ (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.”[65]

His Honour observed that Mr Labaj’s explanation for commencing frequent unsuccessful proceedings that he was suffering from a particular mental condition at the material time was not advanced at the hearing in October.  His Honour noted:

“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 this condition has abated and is unlikely in the future to prompt him to initiate further unmeritorious proceedings.”[66]

[64]  In his written submissions to this Court Mr Labaj said that he found those remarks “appalling and personally offensive”.  He contended, correctly, that there was nothing in the legislation which would restrict access to the courts to a person suffering from a depressive mental illness.  If Mr Labaj’s mental condition was an explanation for much of his litigious activity, particularly repeated summary judgment applications which were doomed to failure given the nature of the proceedings, his Honour was concerned that this was not raised at the hearing and that there was no evidence that the condition had abated.  He was not shifting the onus of proof, as Mr Labaj concluded, but identifying that if there were any explanation of that kind only Mr Labaj could give evidence about it.  If the condition was the explanation, it was important to know if Mr Labaj’s condition was controlled by medication so that the court could be confident it was no longer a significant aspect of his inclination to litigation and irrational interlocutory proceedings.  There is nothing to suggest that his Honour’s observations were in any way discriminatory.  His Honour had merely referred to a possible avenue of argument which Mr Labaj had put before the court.  His Honour made no error in declining to re-open the application, nor did he discriminate against him on the basis of his mental health.

Is Mr Labaj a person who has frequently instituted vexatious proceedings?

[65]  The learned primary Judge noted that the liquidators did not seek to justify the relief claimed by them by reference to Mr Labaj’s subjective intent and did not submit that he has intended to annoy or harass or cause delay or detriment in instituting proceedings.  As his Honour noted[67], they relied upon the proliferation of matters, their frequency, their lack of success, the basis for that lack of success and the conclusions reached by various courts as to their nature.  His Honour said:[68]

“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.”

[66]  His Honour referred to many of the proceedings exhibited to Mr Taylor’s affidavit and the reasons for judgment where they were available.  He extracted observations from the reasons of courts in which the proceeding was described as “incompetent” or “having no arguable prospects of success” or “no reasonable grounds for commencing” those proceedings.  He summarised this Court’s conclusion in Labaj v Lollo Plumbing Pty Ltd[69] that those appeals were vexatious in that there was no arguable basis for them.  Mr Labaj submitted that the learned primary Judge was obliged to examine each proceeding for himself to conclude if it were vexatious:  that is, his Honour was not entitled to rely on what other judges have said about the proceeding.  Section 6 of the Act requires the court to be satisfied that a person may be the subject of a vexatious proceedings order.  This will entail a consideration of previous litigation, what courts have said about it, and any explanation offered by the person.  If a court has described proceedings brought by the person as “vexatious”, “untenable”, “oppressive” or in some similar fashion, that will be a strong circumstance to consider with all the other relevant evidence.  Plainly, if descriptors of that kind have been employed that will be influential, but not necessarily determinative.  His Honour gave due and independent consideration to previous proceedings to the extent that the material permitted him to do so.

[67]  Mr Labaj submitted that since there were dissenting reasons on a point of substance (Fryberg J dissenting) the appeal in Labaj v Lollo Plumbing Pty Ltd[70] was not without merit and could not be characterised as vexatious.  His Honour responded that this

“does not alter the conclusion that Mr Labaj has pursued numerous hopeless proceedings in recent years, including ‘the second appeal’ against the applicants.”[71]

His Honour regarded Mr Labaj’s failure to address in his affidavit many of the proceedings which he pursued unsuccessfully as ‘significant’:

“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.

…

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.”[72]

As a consequence his Honour was satisfied that Mr Labaj had frequently instituted or conducted vexatious proceedings. 

[68]  Mr Labaj complained that the learned primary Judge impermissibly altered the onus of proof by referring to his failure to provide a satisfactory explanation for instituting so many proceedings.  His Honour noted that it was for the liquidators to prove their case and not for Mr Labaj to prove to the contrary.  He concluded that they had done so by referring to numerous proceedings which culminated in the dismissal of those proceedings.  His Honour concluded that the liquidators had raised sufficient evidence to discharge that onus and it was for Mr Labaj to bring forward other evidence to weaken or negate the liquidators’ evidence.  That, his Honour, concluded, he had not done.  His Honour’s was an orthodox approach to proof and no error can be discerned.

Appropriate relief

[69]  The “second appeal” concerning Castleplex fell within the statutory definition of a vexatious proceeding to give the liquidators standing.  The learned primary Judge was content to make an order as sought by the liquidators prohibiting the commencement of any proceedings by Mr Labaj without the leave of the court.  His Honour was entitled to look at the whole of Mr Labaj’s litigation history to conclude that he “frequently instituted or conducted vexatious proceedings in Australia”.[73]  No error has been revealed in making that declaration.  Many of the proceedings instituted by Mr Labaj appear not to be irrational.  They concern damages for breach of contract; employment disputes; alleged negligent professional advice; even challenging the BCC about the dog leash is not irrational.  It was his mode of prosecuting those claims by multiple initiating proceedings, absurd summary judgment applications, and foolish appeals instead of bringing the dispute to trial which harassed the opposite parties and caused needless costs to be incurred. 

[70]  Unlike many vexatious litigants Mr Labaj has not obsessively pursued one idea.[74]  These numerous proceedings, for the most part, came to an end by the end of 2005 by the intervention of Mr Labaj’s second bankruptcy, although there are others later.[75]  A litigant is entitled to be found “wrong” without fear of being declared vexatious.  The Castleplex matters alone would not, I would suggest, give rise to such a declaration.  It is the history of the many vexatious proceedings against others which does so.  The question is should the court below have made an order limited only to the liquidators of Castleplex?  Mr Labaj did not seek, as an alternative to setting aside the order, that a more limited order be made.

[71]  A list of persons against whom a vexatious proceedings order has been made pursuant to the Act[76] is publically available on the court website.[77]  Orders have been made against 18 persons, including three with the same surname and in respect of the same subject matter and Mr Labaj.  Eleven were made prior to 2005.[78]  Orders in five of the post-2005 applications brought under s 5(1)(d) or (e) are limited to restraining commencing proceedings against the applicants.  The other two orders[79] prohibit the persons declared vexatious from instituting proceedings generally.  His Honour could have limited the order in that way but the history suggested that the broader order was appropriate.  As Kirby J observed in Re Skyring[80] it is a serious thing to keep a person out of the courts and the rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction.  But the resources of the court are not limitless and must be deployed responsibly.  Those against whom proceedings are commenced which are vexatious at their inception, or which become so by frequent, irrational interlocutory processes, may expect to be protected from the abusive use of the court’s processes.  If there was cogent evidence to rebut the liquidators’ case for a vexatious proceedings order, Mr Labaj ought to have produced it when the application was heard.  His Honour did not fall into error in making a general order prohibiting Mr Labaj commencing any proceedings in Queensland without the leave of the court.

[72]  It is necessary to amend the order to reflect his Honour’s intention that the liquidators have leave to bring the application.[81]  I would do so by adding as order 1A:

“David James Hambleton and Robert Eugene Murphy as liquidators of Castleplex Pty Ltd (In Liquidation) ACN 086 604 793 have leave to make this application pursuant to s 5(1)(d) of the Vexatious Proceedings Act 2005.”

[73]  The appeal should be dismissed with costs.

[74]  The orders I propose are:

1.The order made below is amended pursuant to rule 388(2) to add:

“David James Hambleton and Robert Eugene Murphy as liquidators of Castleplex Pty Ltd (In Liquidation) ACN 086 604 793 have leave to make this application pursuant to s 5(1)(d) of the Vexatious Proceedings Act 2005.”

2.The appeal is dismissed with costs.

[75]  CULLINANE J: I have read the reasons of White JA in this matter and agree with those reasons and the orders she proposes.