Lohe v Bird[2004] QSC 23

SUPREME COURT OF QUEENSLAND

1. McMURDO J:  The Crown Solicitor for the State of Queensland applies to have the respondent declared a vexatious litigant pursuant to the Vexatious Litigants Act 1981 (Qld).  A person so declared is unable to institute, take or continue any legal proceedings without the leave of the Supreme Court or a judge thereof, and proceedings instituted or taken by such a person without leave are invalid and of no force or effect in law: s 8 of that Act.

2. The power to make the declaration is conferred by s 3 which provides as follows:

“3Declaration of vexatious litigants upon application by public officials

1. If the Supreme Court or a Judge thereof is satisfied that a person has frequently and without reasonable ground instituted vexatious legal proceedings or procured vexatious subpoena, summonses to a witness, warrants or process to be issued or that any other person acting in concert with such a person has without reasonable ground instituted vexatious legal proceedings or procured vexatious subpoena, summonses to a witness, warrants or process to be issued, the Supreme Court or such Judge may after hearing such person and, if the case require it, such other person, or giving him, her or them an opportunity of being heard, by its, his or her order, declare such person and such other person to be a vexatious litigant.

2. An order under this section shall be made only upon the application of the Attorney-General, the Solicitor-General, the Crown Solicitor or the registrar of the Supreme Court at Brisbane, Rockhampton, Townsville or Cairns in the State.

3. The Supreme Court or a Judge thereof may make an order under subsection (1) so as to contain such conditions or qualifications or to have such limited application as appear to it, him or her to be appropriate and may upon the application of an official specified in subsection (2) or of the person declared to be a vexatious litigant vary an order so made by varying or rescinding the conditions or qualifications or limits to which such an order is for the time being subject.

4. Where an order by which any person is declared to be a vexatious litigant contains any condition or qualification that continues to have effect or has limited application the provisions of this Act shall apply in relation to that person subject to the order.”

3. “Legal proceedings” means any cause, matter, action, suit, or proceeding of any kind within the jurisdiction of any court or tribunal and includes any proceeding taken in connection with any such legal proceeding pending before any court or tribunal: s 2. The court or tribunal in this context is a Queensland one: Re Cameron (1996) 1 Qd R 218.

4. The principal question for determination is whether the respondent, Mr Bird, has frequently and without reasonable ground instituted vexatious legal proceedings. The expression “vexatious legal proceedings” is undefined. In Re Cameron, Fitzgerald P at 220 described such proceedings in these terms:

“It is also necessary to decide what makes legal proceedings vexatious.  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 process to circumvent its decision 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: see, for example, Attorney General v Wentworth (1988) 14 N.S.W.L.R. 481; Jones v Skyring (1992) 66 A.L.J.R. 810; Jones v Cusack (1992) 66 A.L.J.R. 815, and Attorney-General (N.S.W.) v West (N.S.W. Common Law Division No 16208 of 1992, 19 November 1992, unreported).”

In Attorney-General v Wentworth (1988) 14 NSWLR 481, in which the meaning of the then New South Wales equivalent of s 3(1) was discussed, Roden J said at 491:

“It seems then that the litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds.  I believe that the test may be expressed in the following terms:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

4. In order to fall within the terms of s 84:

(a)proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfy that requirement);

(b)the proceedings must have been “habitually and persistently” instituted by the litigant.”

5. Accordingly, it is unnecessary for the applicant to establish that the relevant proceedings have been instituted with an improper motive. Absent such a motive, Roden J held that proceedings could be regarded as vexatious if they were so unmeritorious as to be “utterly hopeless”. In Attorney-General v Michael [1999] WASCA 181, the Full Court of the Supreme Court of Western Australia agreed that proceedings could be vexatious in this context although not brought with an improper motive, if they were sufficiently unmeritorious.  But Anderson J, with whom Pidgeon and Steytler JJ agreed, thought that the description “utterly hopeless” imposed too narrow a test.  At [126] he said:

“I think proceedings may be vexatious for the purposes of the Western Australian statute without necessarily being “utterly hopeless”, which I take to mean plainly devoid of any merit whatever.  The litigant who sees dark conspiracies and the threat of great harm to himself or herself in the trivial wrongs of another may provide an example.  The commencement of an action by such a person, containing outlandish allegations and seeking forms of relief that the courts do not grant, may be vexatious, notwithstanding that it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy.  In this case, and speaking generally, the Tully Court litigation against the Maughans and “Della’s Print” could fall into that category.  Whilst it is not possible to say that the claims of nuisance in respect of the loud playing of music is “utterly hopeless”, the allegations as to that, and the relief sought in respect of it, are so deeply buried in bizarre allegations and untenable claims for relief that the court ought to be able to say, as a matter of judgment, that it is a vexatious proceeding within the meaning of the section.”

The Western Australian provision there considered is not materially different from the Queensland one, and I respectfully adopt what Anderson J there said. 

6. In Jones v Skyring (1992) 66 ALJR 810, Toohey J discussed the meaning of vexatious legal proceedings in this context.  At 813, he said:

“Before an order may be made under O.63 R 6(1) of the Rules, I must be satisfied that Mr Skyring “frequently and without reasonable ground has instituted vexatious legal proceedings”.  There is perhaps some tautology in this expression in so far as proceedings commenced frequently and without reasonable ground might be thought thereby to be vexatious.  If that is not so, what does “vexatious” add to the words preceding it?  In Hutchison v Bienvenu (Unreported, High Court of Australia, 19 October 1971, at p 11) Walsh J spoke of “a vexatious proceeding instituted … without reasonable ground”, thereby suggesting a distinction.  But his Honour did not elaborate on this aspect.  What does appear from the judgment is that the test whether proceedings are vexatious “is not simply a subjective one” (at p 11).  In expressing that view Walsh J endorsed (at p 11) what Ormerod LJ had said in In re Vernazza [1960] 1 QB 197 at 208:

“[T]he question is not whether [legal proceedings] have been instituted vexatiously but whether the legal proceedings are in fact vexatious.”

That question is one for the Court to decide on the facts; it is not decided by reference to whether the person against whom an order is sought was acting maliciously or in bad faith.  So, in deciding the present application, it is not to the point that Mr Skyring may believe and believe strongly in his view of s 115 of the Constitution and the associated points he wishes to agitate.”

7. Section 3(1) refers to legal proceedings “instituted” by a person, and some cases have discussed the meaning of that term in corresponding statutes or rules. For example in Jones v Skyring, Toohey J, citing In Re Venazza, thought the expression would include not only the issue of a writ but also an appeal in an action already disposed of, as did Hasluck J in Attorney-General v Hunter [2002] WASC 189 at [100].  It is to be noted however that s 3(1) refers not only to a person who has instituted vexatious legal proceedings, but also to one who has procured vexatious subpoena, summonses, warrants or process to be issued.  Under this provision then, the relevant enquiry can involve a consideration of the motive or the merit of steps taken within legal proceedings, as well as in relation to proceedings as a whole.

8. Although the proceedings which are the subject of s 3(1) are proceedings in Queensland courts or tribunals, proceedings brought in other jurisdictions could be relevant in the assessment of whether proceedings brought in Queensland are vexatious, or relevant to the exercise of the discretion to make the declaration sought, where it is shown that there is a basis for it: Re Cameron at 222, 224.

Mr Bird’s proceedings in outline

9. Since December 2001, Mr Bird has brought six claims or originating applications in this court. Each has its origin in his stated concern for the welfare of two persons. One is a woman whom I shall call “M” and the other is M’s daughter, whom I shall call “D”. M, who was born in 1960, has lived in the same house as Mr Bird for several years. M has been found by the Guardianship and Administration Tribunal (“the Tribunal”) to have chronic schizophrenia, resulting in an inability “to make many decisions for herself without significant support, and in her being open to influence by others”.

10. D was born in 1988. Since July 1990, she has resided with her mother’s parents, pursuant to an order of the Family Court of Australia on their application that they have custody of D. It was consented to by M, who was represented by a firm of solicitors.

11. By October 2001, Mr Bird and M had lived in the same house for about five years. He managed her income which was a fortnightly social security payment. On 23 October 2001, Mr Bird lodged with the Tribunal an application for the appointment of Mr Bird and M’s father as joint guardians for M, and for the appointment of M’s father and the Public Trustee of Queensland as joint administrators of her financial affairs. In his written application, Mr Bird provided information to the effect that M was sufficiently incapacitated as to require these appointments to be made. Although he proposed that M’s father be appointed in these respects, his application contained strong criticism of M’s parents in the ways in which they were said to have acted towards M. In particular, Mr Bird alleged that they had unfairly excluded M from contact with her daughter and had not provided M with proper financial support.

12. Mr Bird attached to his application a letter which he described as “a submission about the composition of the tribunal”. The effect of that submission is revealed within the Tribunal’s decision dated 18 December 2001. It was that the tribunal should be made up of persons coming from “the same cultural background” as M, which he described by saying that M was “of German Protestant background, her family are Anglicans and she has been baptised in the Mormon Church”. His submission was that the Tribunal members should “all be people who have been brought up in the Anglican, Lutheran or Mormon denominations”. He specifically objected to his application being heard by anyone educated at a school conducted by the Uniting Church or the Roman Catholic Church. The submission was rejected.

13. After a hearing, in which those present were Mr Bird, M, M’s parents, and a representative of the Public Trustee, the Tribunal made various factual findings, and determined that M’s father alone should be appointed M’s guardian for all personal matters, and M’s administrator for all financial matters.

14. Mr Bird then commenced two proceedings to challenge the Tribunal’s decision. The first was a judicial review application filed on 21 December 2000, which Muir J dismissed on 2 January 2002. On 24 December 2001, Mr Bird filed an interlocutory application seeking an order that the Tribunal’s order be suspended and that he be allowed to interrogate the persons who had constituted that Tribunal. That application was also dismissed on 2 January 2002.

15. The second proceeding was an appeal pursuant to s 164 of the Guardianship and Administration Act 2000 (Qld), which was No S 372 of 2002 and was commenced on 14 January 2002.  No ground of that appeal was upheld, although the appeal was allowed for reasons, discussed below, which had nothing to do with the merits or otherwise of Mr Bird’s case.  He instituted two appeals to the Court of Appeal in No S 372 of 2002, each of which was unanimously dismissed.

16. The matter was before the Tribunal again on 11 March 2003, when it appointed the Adult Guardian as M’s guardian and the Public Trustee as M’s administrator for financial matters. The imminent hearing of the Tribunal gave rise to proceedings which Mr Bird issued on 3 March 2003 by originating application S 1883 of 2003. The sole respondent to these proceedings was M. As I will discuss, the purpose of these proceedings was to frustrate the operation of orders by the Tribunal of the kind it did make on 11 March. On 10 March 2003 these proceedings were dismissed.

17. On 8 April 2003, Mr Bird filed claim No S 3181 of 2003, in which he sued M, M’s parents, a former Adult Guardian, and a lawyer employed by the Adult Guardian. Within those proceedings he also sought to appeal the Tribunal’s decision of 11 March 2003. A further claim there made was for a declaration that certain orders of the Family Court, including that awarding custody of D to M’s parents, be declared “ { margin-top: 12pt!important; margin-left: 30.35pt; text-indent: -23.15pt; text-align: justify; font-weight: normal and void”. The statement of claim in these proceedings was struck out in its entirety by Fryberg J on 8 July 2003, and a second statement of claim was struck out by me on 22 August 2003.

18. On 1 May 2003, Mr Bird filed originating application No S 3846 seeking orders that M’s parents be held in contempt with respect to the proceedings before the Tribunal and proceedings before this court. On 11 June 2003, he was ordered to provide security for the costs of those proceedings, and they have not been prosecuted since.

19. The applicant’s case is that each of the proceedings I have mentioned, including the appeals within those proceedings, has been a vexatious legal proceeding, and in certain cases, has involved some vexatious process within those proceedings. For the purposes explained in Re Cameron, the applicant also relies upon Mr Bird’s conduct in certain Family Court proceedings.

20. At the time this application was filed and argued, there was a further proceeding No S 5971 of 2003 in which Mr Bird appealed, or sought to appeal, the Tribunal’s decision of 11 March 2003. That appeal has now been dismissed by a judgment given on 7 January 2004, from which there has been no appeal. This itself was not a proceeding relied upon by the applicant and I shall not consider whether it was vexatious.

21. I shall now to discuss the various proceedings relied upon by the applicant.

Application to the Guardianship and Administration Tribunal

22. Mr Bird’s application was substantially successful. The Tribunal was well satisfied that M’s condition and circumstances required the appointment of a guardian and financial administrator. Mr Bird’s application in that way was meritorious. His conduct of his case before the Tribunal in 2001 was discreditable, at least in his personal attacks upon the members. His opposition to the appointment of M’s father alone, when he was applying to have him appointed jointly with himself or the Public Trustee, was rejected by the Tribunal for reasons which involve a rejection of all of his criticism of M’s father. However, I do not regard the proceedings he instituted in the Tribunal as being vexatious. They served the very good purpose of the protection of M’s interests. It is Mr Bird’s proceedings in this court, which tended to undermine the benefit of the Tribunal’s orders, which provide the substantial basis for the applicant’s case.

S 11589 of 2001

23. By this application for judicial review Mr Bird sought an order to set aside the decision of the Tribunal by which M’s father was appointed her guardian and administrator. He sought a further order that the matter be remitted to a differently constituted tribunal to reconsider his application.

24. The stated grounds of this judicial review application were as follows:

“1.A breach of the rules of natural justice occurred in connection with the making of the decision, namely that the composition of the tribunal was such that the parties and the public would entertain a reasonable apprehension that the members of the tribunal did not bring an impartial and unprejudiced mind to the making of the decision.

2. There was no evidence or other material to justify the making of the decision to give unrestricted guardianship and administration powers in respect of a person with only a slight disability.
    

3. The making of the decision was an improper exercise of the power conferred by the Guardianship and Administration Act 2000 in that the tribunal failed to take into account a relevant consideration, namely the conflict of interest between the second respondent and the person who is the subject of the tribunal’s decision, in that there is a dispute between them over access by the latter to her daughter (D).

4. The procedures that are required by law to be observed in respect of the making of the decision were not observed, in that the tribunal did not allow the access to the documents to which the applicant is entitled under Section 108(2) of the Guardianship and Administration Act 2000, such as the police reports on the proposed guardians.

Particulars of fraud or bad faith

1. The president of the tribunal wilfully ignored the applicant’s submission on the composition of the tribunal.

2. The members of the tribunal ignored the applicant’s request that they disqualify themselves.

3. The tribunal members discriminated against the applicant on sectarian and political grounds.

4. The tribunal members sought to impose their values and beliefs on the person who is the subject of the decision despite her having different values and beliefs to the tribunal members.”

25. The first and fourth of those grounds involved the same point, which is a recurring theme in Mr Bird’s litigation. He maintains that he cannot have a fair hearing from a court or tribunal constituted by someone who has been to a Uniting Church or a Catholic school, or who has any Jewish heritage. And on at least one occasion, he has claimed that judges of this court who were appointed during the terms of certain governments could not give him a fair hearing. Even in response to this application, he has sworn an affidavit complaining that “the improper failure of various courts to make orders for (M’s) daughter (D) to be brought up in accordance with (M’s) culture amounts to illegal ethnic cleansing of our culture”.^[1]  I have already mentioned his letter sent to the Tribunal in advance of its hearing of December 2001, in which he submitted that the Tribunal members should all be “people brought up in the Anglican, Lutheran or Mormon denominations”.  I add that there is no evidence that M herself has espoused these views.  These particular grounds for his judicial review application should be considered with the affidavit he filed in support of it on 21 December 2001, in which he made these assertions:

“18.The tribunal that heard my application was constituted by three people of obvious Irish Catholic appearance, and when we went in to a hearing room it was like arriving at a Sein Fein press conference.

…

20. Catholic values are so different from mainstream values that having my application for the Tribunal about (M) heard by three people of Irish Catholic origin is like having an application about an Albanian heard by three Serbs.”

This must also be considered with a further application he filed^[2] on 24 December 2001 by which he sought a suspension of the Tribunal’s order and a further order that he be allowed to interrogate the persons who constituted that Tribunal as to the schools they had attended, the years of their schooling and whether the schools were in each case “a government school, a Catholic school, an Anglican school, or as the case may be”.

26. An alternative ground of his application for judicial review was that there was no evidence to justify the orders which were made “in respect of a person with only a slight disability”. It was, of course, Mr Bird who applied for orders for the appointment of guardians and administrators, and this assertion was contrary to the case he had brought to the Tribunal. There was indeed considerable evidence to support the Tribunal’s order.

27. His other ground was that the Tribunal had failed to consider the asserted conflict between the interests of M and her father, “in that there is a dispute between them over access … to her daughter (D)”. But again, it was Mr Bird who had sought the appointment of M’s father, albeit jointly with him. In any case, the Tribunal’s written decision shows that it clearly and fully considered whether it was appropriate to appoint M’s father alone, and in particular considered this assertion of a conflict of interest.^[3]

28. Not unsurprisingly then, Muir J on 2 January 2002 summarily dismissed these applications. In my view, they were vexatious.

Notice of Appeal No S 372 of 2002

29. On 14 January 2002, Mr Bird filed a notice of appeal against the Tribunal’s decision. By s 164 of the Guardianship and Administration Act, an eligible person may appeal against a Tribunal decision.  Mr Bird was an eligible person because he was the applicant before the Tribunal.  The court’s leave was required for such an appeal except insofar as it involved a question of law only.^[4]

30. On 1 February 2002, Mr Bird filed an application for directions in this appeal, which came before Fryberg J on 7 February 2002. Mr Bird then objected to his Honour hearing the matter, asserting actual or apprehended bias by reason of what Mr Bird described as his Honour’s Jewish background and further by the fact that his Honour had not been appointed during any term of a government led by Sir Johannes Bjelke-Petersen. His Honour rejected these submissions.

31. Also before his Honour was an application for a stay of the Tribunal’s decision. His Honour’s reasons^[5] record that the stay application was not pressed in the light of undertakings to the court by M’s father that pending the determination of Mr Bird’s appeal, he would not prevent M from living with Mr Bird, he would not move any of M’s property from Mr Bird’s house and he would continue to pay M’s living expenses (as he had for many years).   

32. On 22 February 2002, he filed a further application within this appeal, which came before Douglas J on 1 March. Twelve orders were sought by that application. Most of them were in terms directed to restricting the publication of information relating to this appeal. But he also sought an order the effect of which would have been to permit Mr Bird to look at records concerning M which were before the Tribunal but which the Tribunal had decided should not be disclosed to him. In para 3.4 of its decision, the Tribunal, acting pursuant to s 109(2) of the Guardianship and Administration Act, ordered that disclosure of a report by a psychiatrist who had treated M be denied to the parties, and in particular to Mr Bird, on the basis that instead the Tribunal would inform him of the effect of the psychiatrist’s opinion.  He also sought an order for the examination of a certain solicitor to take place before a judge of this court.  This was the solicitor who had represented M in the Family Court when the order was made in 1990 for M’s parents to have custody of D.  Further, despite the outcome of this stay application on 7 February, he again sought an order to stay the Tribunal’s decision.  On 1 March 2002, Douglas J dismissed the application in its entirety.

33. Ten days later, on 11 March, Mr Bird filed a further application within this appeal. This one came before the Chief Justice on 21 March. The first order sought was for leave pursuant to s 164(2) for a rehearing of the matter. The Chief Justice refused that order, holding that the appeal should be confined to whatever questions of law were raised within the Notice of Appeal. The other orders sought were ones for which he had previously applied. They included an order staying the decision of the Tribunal. The Chief Justice dismissed this application in its entirety, pointing out that an application for a stay made to the Tribunal had been refused and again, most recently, by Douglas J on 1 March.

34. On 9 and 10 May 2002, the appeal was heard by Fryberg J. By then the notice of appeal contained what were put forward as ten distinct grounds, each being said to involve a question of law. None of them was upheld by Fryberg J, but it is necessary to describe them to permit an understanding of their demerit.

35. The first was that the Tribunal’s decision was unreasonable (in a Wednesbury sense), because it was said, it would result in Mr Bird and M not living together.  The second and third grounds attacked the Tribunal’s decision on the basis that the members of the Tribunal “had apparently attended Catholic schools” so that there was a reasonable apprehension of bias and the power thereby exercised by the Tribunal was made “for an improper purpose, that is, to impose on (Mr Bird and M) the beliefs and values taught by the Catholic Church in its Australian schools, these being beliefs and values that are continually rejected by the Australian public in elections and referenda”.  The fourth ground asserted an improper exercise of the Tribunal’s power in accordance with an alleged rule or policy, which was described as “being that relatives of people who provide them with financial support are presumed to speak on their behalf”.  The fifth ground is difficult to summarise, but it asserted that the Tribunal’s decision “does not give effect to the legal rights of (M), but renders these legal rights of no effect, and in particular renders of no effect the right of (M) to be paid damages by (M’s parents), and renders of no effect the right of M to be provided by (M’s parents) with access to (D)”.  The right to damages seems to relate to an alleged contract the subject of the next ground.

36. The sixth ground alleged an error of law, in that “the Tribunal held that there was no contract formed when (M) agreed not to contest orders that (M’s parents) had sought in the Family Court of Australia, in consideration of promises that (M’s parents) made to (M) to provide (M) with accommodation and financial support and other benefits, these promises in the circumstances having given rise to a contract”. On this contract case as Mr Bird has attempted to articulate it, M’s consideration must be regarded as not only a consent to that order but an agreement not to seek its variation. It is difficult to see that such an agreement would have been enforceable given the jurisdiction of the Family Court to make orders in relation to D which were in D’s best interests. In any case, Mr Bird’s subsequent attempts to plead this contract case^[6] strongly indicate that whatever was discussed between M and her parents in relation to this custody order, it did not involve a common intention to be contractually bound.^[7]  The Tribunal’s decision^[8] refers to evidence by Mr Bird which alleged such a contract and its breach.  The Tribunal made no finding as to whether there was such a contract or whether any such contract had been breached.    It did find that M’s parents “have a lifelong commitment to (M) and have shown a preparedness as her parents to protect her welfare and the welfare of her teenage daughter”.

37. The seventh ground asserted a breach of the rules of natural justice in that Mr Bird was not given an opportunity, so it was said, to be heard on whether M’s father should be appointed. But the Tribunal’s decision^[9] shows that there were submissions by all parties at the hearing in relation to whether M’s father should be appointed alone to these roles.

38. The next ground was a complaint that Mr Bird had been denied natural justice by not being permitted to read the report of M’s psychiatrist. The next ground asserted that the Tribunal had not decided the matter according to its published reasons, but that those reasons, which were published subsequently to the making of its orders, would lead to a reasonable apprehension that they were “concocted by the members of the Tribunal … with a view to unlawfully preventing the appeal from succeeding”. As an assertion of fact, this had no foundation in the evidence adduced by Mr Bird.

39. Lastly there was a ground that the decision was affected by actual fraud. That ground contained a number of purported particulars, some of which seemed a repetition of other grounds, but each of which lacked a factual foundation as did the broad assertion of fraud which it was intended to support.

40. The appeal therefore raised no arguable error of law. However the inevitable outcome of this appeal was avoided by what happened at its hearing. M’s father was a respondent to the appeal. By then, he had had to respond to the various applications within it which I have discussed. He told the court that he wished to be relieved of the burdens of his appointment. Accordingly, he said that he did not oppose two of the orders sought by Mr Bird’s appeal, which were that the appeal be allowed and the order appointing him as guardian and administrator be set aside. The Adult Guardian was a respondent to Mr Bird’s appeal. He opposed the making of those orders, arguing that the appeal should not be allowed because no ground had been made out. Without deciding the merits of any ground of appeal, Fryberg J held that he should accede to the appointee’s request that he be relieved of his appointment and to that end the appeal was allowed. His Honour set aside the Tribunal’s decision appointing M’s father and remitted the matter to the Tribunal for further consideration.

41. His Honour’s reasons refer to a declaration then sought by Mr Bird that “a reasonable apprehension exists that Mr Bird and (M) will not get a fair hearing from a tribunal member or judge who has attended a Catholic Church or is of Jewish descent”. His Honour noted in that respect:

“Mr Bird, the second appellant, frankly informed me that the major purpose of this declaration – its utility as he put it – was to attempt to affect the allocation of a Judge in the Family Court in proceedings which are pending in that Court.  The question of such a declaration is based upon the assertion by Mr Bird that because of the views of persons who have attended Catholic schools or are of Jewish descent there would be a reasonable apprehension of bias on the part of any objective observer who considered the matter.”

42. After refusing to make some further orders sought by Mr Bird, his Honour ordered Mr Bird to pay some of the costs of the appeal, on the basis that at least some of the hearing was concerned with matters which were frivolous or vexatious.^[10]

43. As Mr Bird emphasises, his appeal was indeed allowed: but that says nothing about its merit. It was allowed only to facilitate the resignation of M’s father, not because he was unsuitable but because by then he was no longer willing to act in this capacity. The orders sought by this appeal, in so far as they were comprehensible, would have imposed an impracticable regime on M and her father and one conducive only to further litigation. In my view his appeal was so devoid of merit as to make it vexatious in the relevant sense. Further, Mr Bird’s repeated applications for a stay of the Tribunal’s decision were themselves vexatious, especially against the fact that he had at an earlier stage not pressed his application for a stay upon undertakings being given to the court by M’s father.

44. The outcome of his appeal left the Tribunal to decide on the suitable replacement for M’s father. Rather than putting his case about that to the Tribunal, Mr Bird went to the Court of Appeal.

Appeal No S 5108 of 2002

45. On 5 June 2002 he filed a notice of appeal naming him and M as appellants. By that notice, he sought to appeal not only the judgment of Fryberg J on 10 May 2002, but the decisions of Douglas J and the Chief Justice which I have discussed. One of his purported grounds asserted an error by Fryberg J in not upholding his claim involving Catholic schools or persons of Jewish descent.

46. On 26 June 2002, he filed an outline of argument in that appeal. That outline repeated the same theme, adding an attack upon the Family Court of Australia to the effect that “Catholic judges decide cases involving Protestant families in accordance with Catholic values, instead of disqualifying themselves as is required by law”.

47. On 19 July 2002, he filed an application in this appeal for a stay of the orders of Fryberg J. On 15 October 2002, he filed a further application in this appeal again seeking, amongst other orders, a stay of the orders of Fryberg J. He also sought by that application an order staying or suspending an order of Moynihan SJA, which was an anticipated but not then an actual order. To try to explain that, between filing his appeal to the Court of Appeal and filing this application of 15 October, Mr Bird had filed applications in the Trial Division, within S 372 of 2002 (which Fryberg J had decided on 10 May). On 2 August he asked a judge in the Trial Division to stay the orders of Fryberg J and for orders restraining the Adult Guardian and the Public Trustee from acting as M’s guardian or administrator. His affidavit in support that application showed his expectation that the matter would be back before the Tribunal in October 2002, and that it would appoint the Adult Guardian and the Public Trustee. That application came before Moynihan SJA on 12 September. On the same date, his Honour heard applications by the Adult Guardian and by M’s parents for security for costs of the appeal to the Court of Appeal. His Honour’s decision was reserved when Mr Bird filed his application on 15 October in which he sought, in effect, to stay any order which might be made by Moynihan SJA. On 17 October, Mr Bird’s applications of 19 July and 15 October came before the Court of Appeal which adjourned them to a date to be fixed.

48. On 1 November 2002, Moynihan SJA delivered his judgment, ordering Mr Bird to provide, in favour of the Adult Guardian and M’s parents, security for costs in his appeal and ordering the appeal to be stayed until such security was given. His Honour also ordered that the Adult Guardian should be M’s litigation guardian for the purposes of that appeal or any further proceedings in S 372 of 2002.

49. By 11 December 2002, Mr Bird had filed three further interlocutory applications within S 372 of 2002. Fryberg J heard them and dismissed them (save for one which Mr Bird abandoned) on that day. One was an application, originally sought to be made by Mr Bird ex parte, for (yet again) a stay of Fryberg J’s orders of 10 May. The second (filed 22 November) sought orders which included such a stay. The third sought various directions for his appeal to the Court of Appeal, but also an order staying the orders of Moynihan SJA.

50. By the end of 2002, the position was that the Tribunal was yet to consider the matters remitted to it by the judgment of Fryberg J on 10 May, and Mr Bird’s appeal against that judgment was stayed pending the provision of security for costs. Mr Bird’s appeal had been given a hearing date in March 2003, but that date was vacated when Mr Bird failed to provide security for costs as ordered. He was so informed by a letter from the Registry dated 11 November 2002. Mr Bird’s response was not to provide security for costs but to write to the author of the Registry’s letter threatening him in these terms:

“Quite apart from the remedy of applying for an order in the nature of Mandamus I would draw your attention to other remedies that are available.  In particular, there is listing your name, residential address and photograph on an internet site.  There is nothing illegal in posting your details to the internet, and what anti-corruption agencies, politicians and terrorists do with the information is not my concern.  In a country with an increasingly Lebanese style judicial system, one needs to have recourse to Lebanese style methods of getting one’s just desserts.”

51. On 6 January 2003, Mr Bird filed a further notice of appeal in the Court of Appeal, which was No CA89 of 2003. This was an appeal against the decision of Fryberg J of 11 December 2002.

52. On 2 July 2003, the Court of Appeal heard and dismissed Mr Bird’s two appeals. The court held that Fryberg J was clearly correct in his decision of 10 May 2002, and that the appeal from that decision was “entirely without merits”. Appeal CA89 of 2003 was also held to have no basis. Mr Bird was ordered to pay the costs of each appeal. In my view, each of these appeals was a vexatious proceeding.

No S 1883 of 2003

53. In the meantime, Mr Bird had gone back to the Trial Division. The Tribunal had fixed 11 March 2003 as the date for hearing of the matter remitted to it. The Adult Guardian had made it clear that he wished to be appointed as M’s guardian. Mr Bird wished to oppose that appointment. But he also took another course designed to frustrate its effect.

54. He caused to be prepared a 16 page document entitled “Accommodation Agreement”, being a purported contract between him and M dated 5 February 2003. It is signed by them. On its face, its purpose is to record an agreement by which M could be Mr Bird’s boarder. It recited that M had been provided with that “accommodation service for the last six years” which M had found to be “entirely satisfactory”. The document then set out the terms under which M could continue to board with Mr Bird. Some of those terms would have provided Mr Bird with extraordinary powers of the control of M’s life, including any right to leave the premises after 8 p.m.

55. The so called agreement then contained extensive provisions for arbitration. Those terms were typical of what could be found in commercial agreements, save that there were added some remarkable terms as to the qualifications of the arbitrator and otherwise.

56. The provisions as to arbitrator’s qualifications were as follows:

“9.8Persons who are qualified to be an Arbitrator for an arbitration in accordance with this Deed include anyone who has been brought up from birth in any of the following Christian denominations, that is, Greek Orthodox, Lutheran, Church of Jesus Christ of Latter Day Saints, or Seventh Day Adventist, who has attended Boy Scouts or Cub Scouts or Girl Guides or Brownies for at least one year, who is married, and who has a degree in accountancy or law.

9. Persons who are qualified to be an Arbitrator for an arbitration in accordance with this Deed include anyone who has attended a school run by the Anglican Church or the Baptist Church, who may have also attended a government school, who has not attended any other kind of religious school, who is married, who is a Freemason or the wife of a Freemason, and who has a degree in accountancy or law.

10. Persons who are qualified to be an Arbitrator for an arbitration in accordance with this Deed include anyone who has been a commissioned officer in the Rhodesian Army or the British South Africa Police before 1980, or who has held a corresponding position in a corresponding organisation in South Africa before 1990, and who no longer holds such a position.

…”

I shall not list here the many unusual terms which Mr Bird included in this document, but they include provisions by which the arbitrator would have to reject evidence given by Roman Catholics or public servants, at least where that evidence conflicted with an account of a person who “has attended Boy Scouts or Cub Scouts or Girl Guides or Brownies for at least one year”.

57. On 3 March 2003 Mr Bird filed S 1883 of 2003. He was the applicant and M was the only respondent. The application was supported by affidavits sworn by each of them on 14 February 2003. His affidavit indicates his awareness of the hearing to take place in the Tribunal on 11 March. The application sought orders to restrain or direct M in certain respects whether “in person or through an agent or guardian or administrator”. Those orders included a restraint on the removal of any of M’s property from Mr Bird’s house (including prescription medicines) without Mr Bird’s consent and an order that M (or her guardian or administrator) move any of M’s property in the possession of M’s parents to Mr Bird’s house. The affidavit of M was to the effect that she did not object to these orders. The orders were sought on the basis of Mr Bird’s entitlements under the so called Accommodation Agreement.

58. This originating application was given a return date of 10 March, being the day preceding the date for the Tribunal’s hearing. Mr Bird’s affidavit deposed to his belief that the Tribunal would appoint the Adult Guardian as guardian and the Public Trustee as administrator, and his apprehension that the Adult Guardian would cause his Accommodation Agreement to be breached.

59. Then on 5 March, Mr Bird sought and filed a further affidavit in support of this application. According to this affidavit, there had been a reference to arbitration under the Accommodation Agreement and the arbitrator had published an award, which Mr Bird exhibited to his affidavit. The arbitration was said to have occurred on 4 March. Mr Bird sought orders to give effect to the award. According to his affidavit, the arbitration was carried out by the mother of a person said to be a friend of Mr Bird and M, although she had no legal or accounting qualification as apparently required by the arbitration provisions. The award is a ten page document. It identifies the evidence before the arbitrator as the affidavits Mr Bird had filed in the court on 3 March. From the award, it is impossible to discern any dispute or difference between the parties which had been submitted to the arbitrator. Indeed her award contains this candid statement:

“My task in carrying out this arbitration is made somewhat easier by the fact that both Mr Bird and (M) are in agreement as to the award they want me to make.”

60. The arbitrator then discussed matters said to be relevant to her powers, before she proceeded to make various factual findings, all in Mr Bird’s favour. After a purported review of the fairness of the Accommodation Agreement, she expressed her satisfaction that the terms were fair to M and that Mr Bird “did not exert undue influence over (her) in advising her to sign the agreements”. She also held that M had the necessary capacity to enter into this agreement. Indeed she reviewed the opinions of psychiatrists who had diagnosed M and rejected them. There is no suggestion that the arbitrator had any medical qualification. She concluded by making purported orders against M in terms which corresponded with the orders sought by Mr Bird’s originating application filed the previous day. There were also orders restraining Mr Bird (jointly with M) from (amongst other things) authorising any debit from the bank account into which M’s social security income was to be paid, absent the signature of each of them, as well as some restraints upon his dealing with funds save that he could disperse them “to a trustee … that has taken over from (Mr Bird) the responsibility of administering the funds.”

61. Holmes J summarily dismissed these proceedings on 10 March, holding them to be an abuse of process, and in particular an attempt to pre-empt the decision of the Tribunal. Her Honour added that her:

“… strong impression is that there has been a series of sham procedures in the form of the agreement purportedly reached between Mr Bird and (M) the arbitration itself and this application, all of those imposed on a respondent of doubtful capacity.”

62. In truth, Mr Bird caused the Accommodation Agreement to be prepared and signed to frustrate the performance of the duties of any person appointed in relation to M by the Tribunal, and that was also the purpose of these proceedings. The so called arbitrator’s award was something Mr Bird caused to be prepared to provide what he believed would be a further basis for orders of the Court to achieve that purpose. There was no dispute and this award was not by way of resolving any dispute. It was an artifice created by Mr Bird to promote what Holmes J rightly characterised as an abuse of process. The proceedings were vexatious in the relevant sense.

63. The Tribunal proceeded to hear the matter as remitted to it on the scheduled date of 11 March. It then appointed the Adult Guardian as M’s guardian and the Public Trustee as her administrator for financial affairs.

The damages claim: No S 3181 of 2003

64. Mr Bird filed claim No S 3181 of 2003 on 8 April. The first defendant was M. The second defendants were M’s parents. The third defendant was a person who was the Adult Guardian at the time certain orders in relation to D had been made in the Family Court. The fourth defendant was a lawyer employed by the Adult Guardian. Mr Bird alleged that the third and fourth defendants had engaged in corrupt conduct. There were other defendants. The claim against M’s parents was for damages, quantified at $3,179,200. The claims against the third and fourth defendants were for damages of $10M. In those same proceedings, Mr Bird also sought to appeal the Tribunal’s decision of 11 March. Then there was a further claim for a declaration that certain orders made by the Family Court were { margin-top: 12pt!important; margin-left: 30.35pt; text-indent: -23.15pt; text-align: justify; font-weight: normal and void. Mr Bird also sought a declaration that “the two Deeds of 5 February 2003, were valid”. One of them was his Accommodation Agreement. The other was a document under which he claimed to be the assignee from M of certain rights of action, including those for damages claimed against the second, third and fourth defendants.

65. Mr Bird filed a Statement of Claim with this Claim. The pleading consisted of 351 paragraphs. It pleaded allegations that the Tribunal’s 2003 decision was wrong because, amongst other reasons, the Tribunal failed to take into account the effect of Mr Bird’s Accommodation Agreement and that this agreement “removed the need for (M) to have a litigation guardian”. Against M’s parents the Statement of Claim sought to plead Mr Bird’s case that there was a contract made on the occasion of the custody order made by the Family Court in 1990, which Mr Bird alleged had been breached. As I have already indicated, the pleading revealed no arguable case that any enforceable contract was made. And the allegations of its breach and of the resulting damages show the substance or otherwise of his case. For example, M’s parents are said to have breached their contract with M, by sending D to a certain school for girls only, rather than a certain co-educational school. The alleged consequence of this breach was said to be the lessening of D’s prospects of marrying, and marrying a wealthy man, with a consequent loss of financial support by D for her mother. This component of the contract case involved a claim for damages quantified at $1,000,000.

66. I shall not attempt to summarise the many allegations within this pleading. For the most part they are nonsensical and scandalous. The statement of claim was struck out in its entirety by Fryberg J on 8 July 2003. The statement of claim demonstrates the vexatious nature of this claim. One particular problem with the cases pleaded as damages claims is that, with one possible exception, they were causes of action (if any) which belonged to M and not to the plaintiff who was Mr Bird. That possible exception was a suggested cause of action for damages for defamation of Mr Bird, but that matter was so tangled up with the other allegations as to require the statement of claim as a whole to be struck out.

67. On 10 April, Mr Bird filed an application within these proceedings seeking directions and orders, including an order to stay the Tribunal’s decision of 11 March. It sought an interlocutory order that the parties to his Accommodation Agreement until further order treat that agreement as valid and abide by the purported award of the arbitrator.

68. Mr Bird filed an affidavit sworn on 7 May in support of these proceedings. In that affidavit, he referred to his damages claim for $10M against the former Adult Guardian and a solicitor employed by the Adult Guardian. He there said that he was willing to consider settlement of this claim “if the State Government was to do $10 million worth of favours for myself and (M), with the favours being the sort of thing that the State is either obliged to do for us anyway, or as permitted to do with funds already allocated by Parliament, or is permitted to do and does not cost anything”.

69. On 8 May 2003, Fryberg J made orders that so much of the claim as consisted of an appeal from the Tribunal’s decision of 11 March be included in a notice of appeal to be filed by Mr Bird. His Honour also gave leave to Mr Bird to amend his claim and statement of claim. These proceedings were again before Fryberg J on 8 July, when his Honour struck out the statement of claim. His Honour also removed some of the defendants as parties.

70. In his reasons, Fryberg J noted that although the proceedings had issued with Mr Bird being the sole plaintiff and M being the first defendant, Mr Bird had taken to filing documents in the proceedings which purported to reconstitute them so that M had become a co-plaintiff. His Honour pointed out that this change had not been authorised by an order and was of no effect.

71. Mr Bird filed an amended statement of claim on 30 July 2003. He did not serve it on 18 August before he made an ex parte application that in these proceeding he be given judgment by default against the third and fourth defendants. They had not filed a Notice of Intention to Defend. I heard that application. He then submitted that they were required to file a Notice of Intention to Defend although they had not been served with his Statement of Claim, i.e. that which was filed on 30 July, its predecessor having being struck out. I dismissed that application. I held that the rules required a Statement of Claim to be served upon a defendant before a judgment in default of a Notice of Intention to Defend could be given, because a defendant is required to attach a Defence to the Notice,^[11] and absent a Statement of Claim, a defendant could not do so.  Alternatively, I said that in the circumstances of this case I would not be prepared to give judgment upon the case pleaded in the Statement of Claim of 30 July without those defendants having an opportunity to see that pleading.

72. Mr Bird did not appeal my decision, but he raised it at the outset of this hearing arguing that it gave rise to a reasonable apprehension of bias in my determination of this matter.

73. On 20 August Mr Bird served his amended statement of claim which he had filed three weeks earlier. It named M as a second plaintiff, contrary to what Fryberg J had said.

74. These proceedings were back before me on 22 August. I struck out the Amended Statement of Claim, because it was substantially the same as that which Fryberg J had struck out. There was an application by the third and fourth defendants, against whom Mr Bird had sought the default judgment, for orders that they be removed as parties or, alternatively, for a permanent stay of the proceedings against them. I held that given the two unsuccessful attempts to plead a case against them, the third and fourth defendants should be removed as parties. Counsel for the Adult Guardian, another defendant, then applied for a stay of these proceedings against the other defendants. I refused that application because Mr Bird had not been given notice of it and because the remaining defendants, apart from the Adult Guardian, did not seek the stay. There were also before me applications filed by Mr Bird on 9 July and 25 July. Mr Bird did not press those applications and I dismissed them.

75. The result of the hearing on 22 August was that Mr Bird was left to replead, if he could, a case within these proceedings (S 3181 of 2003). In so far as those proceedings had included an appeal against the Tribunal’s decision of 11 March, Mr Bird had by 22 August filed separate proceedings, which were No S 5971 of 2003. I made directions for the hearing of that appeal. As I have mentioned, that appeal was dismissed on 7 January 2004, and Mr Bird has not appealed to the Court of Appeal. As far as the evidence indicates, Mr Bird has taken no step to prosecute what remained of S 3181 of 2003.

76. I have concluded that S 3181 of 2003 are vexatious proceedings. When commenced, those proceedings included an appeal against the Tribunal’s 2003 decision. I am not prepared to say that that appeal was vexatious. Its merits were thoroughly considered in the judgment which dismissed S 5971 of 2003 but the judge who heard it was not prepared to hold that it was a frivolous or vexatious case when he was asked to do so for the purpose of deciding issues of costs. However, the fact that some arguable case to appeal the Tribunal’s decision was buried within the pile of the unarguable and often scandalous allegations pleaded in the statement of claim in these proceedings, does not prevent them from being fairly described as vexatious. In this context I refer again to what Anderson J said in Attorney-General v Michael at [126].

Mr Bird’s contempt case: No S 3846 of 2003

77. On 1 May 2003 Mr Bird filed originating application S 3846 seeking orders against M’s parents that they be held in contempt of court, for improper interference with the proceedings before the Tribunal and one or more of Mr Bird’s Supreme Court proceedings. In particular, he alleged that they had forced M to give false evidence for use in proceedings in this court.

78. On 11 June M’s parents brought an application for security of costs of these contempt proceedings. The application came before Ambrose J. Mr Bird objected to his Honour hearing it because his Honour had attended a Catholic school. Ambrose J rejected that submission and proceeded to hear the matter and order security for costs. These proceedings have not been prosecuted since.

79. The evidence in support of this contempt application was sworn by Mr Bird. To the extent that it is relevant, it consists of hearsay. It swears in general terms as to what M had told Mr Bird about discussions with her parents in relation to their litigation against Mr Bird. If this contempt proceeding went to a trial, it would be open to Mr Bird to seek to prove his case by original evidence from M. Mr Bird has not yet particularised his contempt allegations in a way in which the respondents could fairly respond to them, but at this point, I am unable to conclude that this case would have no prospects. On the present evidence, I am not yet satisfied that these contempt proceedings are vexatious.

Mr Bird’s evidence

80. Mr Bird read affidavits sworn by him in response to this application. I have not discussed them already because they are not directed to any justification of the proceedings which the applicant alleges were or are vexatious, with the exception perhaps that his affidavit filed 28 October 2003 emphasises that Fryberg J allowed his appeal (in part) against the Tribunal’s 2001 decision.

81. In the same affidavit Mr Bird deals with some other matters. Firstly he makes some reference to the Family Court proceedings I shall discuss, although the relevance of these passages is not apparent. Then he seeks to substantiate his claim to be the assignee of what he says were M’s causes of action against the former Adult Guardian and the solicitor for the Adult Guardian who were the defendants in S 3181 of 2002 and in relation to whom I refused Mr Bird a default judgment. This seems to be an attempt to reargue the matter decided against him by Fryberg J when his Honour struck out the statement of claim in S 3181 of 2002. When I struck out the second statement of claim, which was in substance a repeat of the first, I referred to the fact that Mr Bird was asking me to in effect review the correctness of the reasons of Fryberg J, particularly concerning the alleged assignment of the pleaded causes of action. I held that Mr Bird should not be permitted to continue to deliver effectively the same pleading until he persuaded a judge to disagree with Fryberg J: instead his proper course was to appeal. As my reasons given on 22 August show, Mr Bird raised one matter not argued before Fryberg J, which is that he claimed to be M’s “insurer” from which he asserted that by some means he had what were her rights of action. For that submission he relied upon the deed of assignment which had not persuaded Fryberg J. He was unable to show where that deed constituted him as an insurer beyond saying that he had agreed to indemnify M (against something or other) which appeared by necessary implication from the terms of the deed. I held that submission to have no substance. As far as I am aware, there has not been an appeal against my judgment striking out the second statement of claim, or against that of Fryberg J which struck out its predecessor. I have mentioned Mr Bird’s objection to my hearing this application to have him declared a vexatious litigant. There was no suggestion by him that I should not hear this because I had struck out his statement of claim, or for any reason other than there was apparent bias from my refusing his application for a default judgment. Nor did Mr Bird object to my hearing the current proceeding on the basis that I had displayed bias in dismissing his application for that default judgment. I mention that because Mr Bird’s affidavit filed 28 October says that his default judgment application should not have been heard by me “because of a reasonable apprehension of bias”, although that is not explained and he made no objection at the time I heard that application.

82. His affidavit of 28 October 2003 also exhibits what he says is a letter of complaint sent to the “Chief Prosecutor of the International Criminal Court” that judges of this court and the Family Court are being assigned to hear cases although there is a reasonable apprehension of bias on their part. I shall not go into the detail of this complaint but the assertions within it are absurd and scandalous. Mr Bird is entitled to his opinions, but their present relevance is that even in the face of this application against him, Mr Bird demonstrates such a distorted view of the justice system that if he is permitted to litigate without the control sought to be imposed by his being declared vexatious, those views will continue to infect his conduct of litigation.

83. In summary, I have found that each of these proceedings instituted by Mr Bird was vexatious in the relevant sense: No S 11589 of 2001, No S 372 of 2002 (including the appeals No S 5108 of 2002 and S 89 of 2003), No S 1883 of 2003 and No S 3181 of 2003. I also conclude that Mr Bird has thereby instituted vexatious proceedings “frequently” in the sense of that term in s 3, and it follows from what I have said that each of those proceedings was instituted “without reasonable ground”. Mr Bird may feel that there is some inconsistency between my conclusion that his appeal against the Tribunal’s 2001’s decision was vexatious, and the view of the judge who dismissed his appeal against the Tribunal’s 2003 decision that he was not prepared to say that that appeal was vexatious. They were of course different proceedings, challenging different decisions of the Tribunal. He will also be aggrieved that I have found that his appeal against the 2001 decision was vexatious when it was, in part, allowed: but the unusual circumstances which brought that result said nothing of the merits of the appeal.

84. It follows that it is open to me to declare Mr Bird to be a vexatious litigant. Before discussing what I see as the relevant discretionary considerations, it is necessary to discuss some proceedings in the Family Court of Australia, which are of possible relevance to the exercise of that discretion.

Family Court proceedings

85. On 7 March 2002 Mr Bird filed an application naming him and M as applicants in the Family Court of Australia. The application sought orders in relation to D, including an order removing M’s father as her next friend and appointing Mr Bird in this capacity. M’s parents were the respondents to that application. An affidavit in support was sworn by M, in which reference was made to Mr Bird’s then proceeding in this court which was S 372 of 2002. It specifically refers to the case there alleged that there was a contract made in 1990 between M and her parents in relation to D.

86. On 8 April 2002, M’s financial statement was filed for the purpose of these Family Court proceedings. Within that was an asserted entitlement in M to damages from her parents, this time estimated at $580,000, as damages for breach of contract.

87. On 9 April 2002, M’s parents filed their response seeking amongst other orders that the Adult Guardian be appointed the next friend of M. On that date a Registrar appointed the Adult Guardian to represent M in those proceedings.

88. On 11 April 2002 Mr Bird filed an application seeking to review the Registrar’s decision, and seeking an order that he be appointed M’s next friend. This was followed by an amended application for review filed by Mr Bird on 27 May 2002, by which time, it will be recalled, Fryberg J had decided Mr Bird’s appeal against the Tribunal’s 2001 decision. Although Mr Bird’s appeal was allowed by Fryberg J that was only to facilitate the resignation of M’s father to the end that his replacement would be chosen by the Tribunal. But in an affidavit filed by Mr Bird in the Family Court on 27 May in support of his application to be appointed M’s next friend in the Family Court proceedings in lieu of the Adult Guardian, he misrepresented what Fryberg J had decided by swearing that:

“The ‘Adult Guardian’ … who was a respondent to the appeal, nevertheless continued to contest the appeal, but the judge allowed the appeal anyway, after considering my argument that the tribunal had ‘failed to take into account a relevant consideration’, which was only one of many grounds on which the judge would have had to allow the appeal.”

89. On 29 May 2002 his application to review the registrar’s decision was heard and determined by Barry J. His Honour concluded that a next friend should be appointed and that it should be the Adult Guardian. Mr Bird had objected to his Honour hearing the matter because of his Honour’s Catholic schooling.

90. On 5 June 2002 Mr Bird filed a notice of appeal against the orders made by Barry J, including certain other orders in relation to D which had been agreed between counsel for the Adult Guardian and the solicitor for M’s parents. In that notice of appeal, Mr Bird alleged that Barry J had exceeded his jurisdiction and had made orders for an improper purpose “namely to prevent the child from being raised according to traditional Protestant values”. The Adult Guardian sought security for costs of the appeal as did M’s parents. These applications were heard by a Full Court of the Family Court on 21 August 2002. In an outline of argument for the purpose of his Full Court appeal, Mr Bird asserted that “the criticisms which Mr Bird made of the Guardianship and Administration Tribunal, and which were accepted by the Supreme Court can equally be made of the Family Court”, which again was a misrepresentation of the outcome of his appeal S 372 of 2002 as well as a scandalous assertion.

91. On 6 September 2002 the Full Court of the Family Court ordered him to provide security for costs. In the judgment of the court, Mr Bird’s claims in those proceedings “might be said to border on the vexatious”.

92. Mr Bird’s conduct of his Family Court proceedings fortifies my view that he has no appreciation of what amounts to the proper conduct of litigation.

Discretionary matter

93. At the hearing, Mr Bird handed up an undertaking to be given to the court on condition that he was not declared vexatious.^[12]  He substituted for that a proposed undertaking which he delivered to the court the day after the hearing.  His proposed undertaking is now as follows:

“1.This undertaking will apply for a period of five years from the date on which it is accepted, unless the Respondent is declared a vexatious litigant, in which case this undertaking will cease to apply.

2. The Respondent will (subject to paragraph 1 above and paragraph 3 below) refrain from commencing or continuing proceedings in Queensland Courts of Law unless the proceeding is commenced by a solicitor on the Respondent’s behalf and the Respondent is represented in Court by a barrister or solicitor.

3. Despite paragraph 2 above, the Respondent will still be able to commence proceedings himself and represent himself in the following types of cases:

(a)Supreme Court of Queensland proceeding S5971 of 2003 (but not proceedings S3181 of 2003 or S3846 of 2003);

(b)a proceeding or application to a Court that has been commenced by someone other than the Respondent or (M) (unless the proceeding has been commenced by some other person on behalf of (M) and in her name);

(c)a proceeding before a statutory tribunal including (without limiting the generality of the foregoing) a Small Claims Tribunal; and

(d)a proceeding arising out of criminal charges including (without limiting the generality of the foregoing) a bail application or an appeal against conviction.”

94. Going to paragraph 3(a) of that undertaking, I have mentioned that S5971 of 2003 has now been dismissed, and it appears that there is no appeal by Mr Bird. This undertaking would require the still current proceedings, which are S3181 of 2003 and S3846 of 2003 to be prosecuted, if at all, with legal representation although that would be limited to Mr Bird being represented “in court”. His undertaking would also permit him to represent himself in a proceeding before a statutory tribunal, which would include the Guardianship and Administration Tribunal. The undertaking would go some way towards avoiding the prospect of defendants or potential defendants, as well as the court and its registry staff, from being vexed by further proceedings by Mr Bird. In my view, however, it would not go far enough. For example, it would not prevent Mr Bird from himself filing pleadings or affidavits, such as another pleading replicating those struck out in S3181 of 2003. And the presence of a legal representative is not a certain protection against the advancement of a hopeless case, particularly if the legal representative is not properly briefed. In addition, as I have held S3181 of 2003 to be a vexatious proceeding, I would not accept an undertaking in terms which would permit Mr Bird to prosecute it, albeit with legal representation “in court”.

95. So far as S3846 of 2003 is concerned, which I have not found to be vexatious, Mr Bird’s ability and willingness to prosecute that proceeding seems doubtful, given the outstanding order for security for costs. If he is declared a vexatious litigant, with no condition which excepts those proceedings, it still remains open to the court to give him leave to prosecute them, if and when he provides security for costs and can properly articulate the contempt charges and demonstrate a real prospect of proving them.

96. Mr Bird gave no indication that he had any particular further proceedings in mind. He did not submit that the declaration sought would result in some injustice by impeding some particular case which he wishes to bring. Outside his disputes with M’s parents and the various government agencies concerned with M’s welfare, there seems to be nothing in his life which suggests a particular prospect of imminent litigation. He describes his occupation as “entrepreneur”, although some of the evidence suggests that he is not engaged in any business or occupation. So far as his litigating in relation to M or D is concerned, the present position in relation to M’s welfare is that his appeal against the Tribunal’s appointment of the Adult Guardian and the Public Trustee has failed. So far as his interest in D’s welfare is concerned, an order declaring him a vexatious litigant would not affect proceedings (if any) which he is able to bring in the Family Court of Australia.

97. A litigant declared to be vexatious is able to commence further proceedings with the leave of this court. The litigant must then file the material required by s 9A of the Act. If Mr Bird has a proper case which he wishes to commence, he or his legal representative ought to be able to persuade the court to give leave to commence it. There is also available to the declared vexatious litigant the avenue of applying for a revocation of the order pursuant to s 4, which permits this court to revoke the order if satisfied that the litigant does not intend to pursue or procure another person to pursue the course of conduct that occasioned the person being declared a vexatious litigant or a course of conduct that might occasion another order being made under s 3.

98. Any judge asked to make a declaration pursuant to s 3 is concerned by the seriousness of impeding access by a citizen to the courts. In addition, any judge is mindful of the difficulties which unrepresented litigants often encounter in properly articulating their cases, and the frustrations they might feel when their claims are dismissed for reasons which they may not fully comprehend. However, Mr Bird’s conduct in the frequent commencement of these vexatious proceedings over the past two years, considered with his sometimes scandalous conduct of them and his propensity to vex litigants and the court by seeking to reargue lost causes, has led me to conclude that he should be declared a vexatious litigant.

99. The order will be that Geoffrey James Bird is declared a vexatious litigant pursuant to s 3 of Vexatious Litigants Act 1981.