Re Freeman[2008] QSC 200

SUPREME COURT OF QUEENSLAND 

1. On 5 May 2006, Muir J (as he then was) ordered that the applicant by himself, his servants and agents, be restrained from commencing any new proceedings (apart from an appeal in the proceedings before Muir J) in any Queensland court against the National Australia Bank Limited, its servants or agents, arising out of or concerning any of the allegations made in proceedings BS 4103 of 1998 at first instance or on appeal, without the prior leave of a judge of the Trial Division of the Supreme Court.^[1]

2. That order was made pursuant to s 6 of the Vexatious Proceedings Act 2005 (“the Act”). That section provides:

“6 Making vexatious proceedings orders

(1)This section applies if the Court is satisfied that a person is -

(a)a person who has frequently instituted or conducted vexatious proceedings in Australia; or

(b)a person who, acting in concert with a person who is subject to a vexatious proceedings order or who is mentioned in paragraph (a), has instituted or conducted a vexatious proceeding in Australia.

(2)The Court may make any or all of the following orders -

(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.

(3)The Court may make a vexatious proceedings order on its own initiative or on the application of a person mentioned in section 5(1).

(4)The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)For subsection (1), the Court may have regard to -

(a)proceedings instituted or conducted in any Australian court or tribunal, including proceedings instituted or conducted before the commencement of this section; and

(b)orders made by any Australian court or tribunal, including orders made before the commencement of this section.”

3. The effect of such an order is set out in s 10 of the Act:

“10 Vexatious proceedings order prohibiting institution of proceedings

(1)If the Court makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in Queensland--

(a)the person may not institute proceedings, or proceedings of the particular type, in Queensland without the leave of the Court under section 13; and

(b)another person may not, acting in concert with the person, institute proceedings, or proceedings of the particular type, in Queensland without the leave of the Court under section 13.

(2)If a proceeding is instituted in contravention of subsection (1), the proceeding is permanently stayed.

(3)Without limiting subsection (2), the Court, or the court or tribunal in which the proceeding is instituted, may make -

(a)an order declaring that a proceeding is a proceeding to which subsection (2) applies; and

(b)any other order in relation to the stayed proceeding it considers appropriate, including an order for costs.

(4)The Court, or the court or tribunal in which the proceeding is instituted, may make an order under subsection (3) on its own initiative or on the application of a person mentioned in section 5(1).”

4. A person who is the subject of an order under the Act may only institute a proceeding if leave is granted under the Act. The circumstances in which such an application can be made are set out in s 11:

“11Application for leave to institute a proceeding

(1)This section applies to a person (the applicant) who is -

(a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in Queensland; or

(b)acting in concert with another person who is subject to an order mentioned in paragraph (a).

(2)The applicant may apply to the Court for leave to institute a proceeding that is subject to the order.

(3)The applicant must file an affidavit with the application that-

(a)lists all occasions on which the applicant has applied for leave under -

(i)this section; or

(ii)before the commencement of this section, the Vexatious Litigants Act 1981, section 8 or 9;1 and

(b)lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section; and

(c)discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.

(4)The applicant must not serve a copy of the application or affidavit on any person unless -

(a)an order is made under section 13(1)(a); and

(b)the copy is served in accordance with the order.

(5)The Court may dispose of the application by--

(a)dismissing the application under section 12; or

(b)granting the application under section 13.

(6)The applicant may not appeal from a decision disposing of the application.”

5. The Act goes on to direct the court as to how it must deal with an application made under s 11 in s 12 and s 13 which provide:

“12 Dismissing application for leave

(1)The Court must dismiss an application made under section 11 for leave to institute a proceeding if it considers -

(a)the affidavit does not substantially comply with section 11(3); or

(b)the proceeding is a vexatious proceeding.

(2)The application may be dismissed even if the applicant does not appear at the hearing of the application.

13 Granting application for leave

(1)Before the Court grants an application made under section 11 for leave to institute a proceeding, it must -

(a)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; and

(b)give the applicant and each relevant person, on appearance, an opportunity to be heard at the hearing of the application.

(2)At the hearing of the application, the Court may receive as evidence any record of evidence given, or affidavit filed, in any proceeding in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.

(3) The Court may grant leave to institute a particular proceeding or a proceeding of a particular type (the proceeding), subject to the conditions the Court considers appropriate.

(4) However, the Court may grant leave only if it is satisfied that the proceeding is not a vexatious proceeding.

(5) In this section -

relevant person, in relation to the applicant for leave to institute the proceeding, means each of the following persons -

(a) the person against whom the applicant proposes to institute the proceeding;

(b) the Attorney-General;

(c)the Crown solicitor;

(d) the registrar of the Court if the registrar applied for a vexatious proceedings order in relation to the applicant;

(e) any person mentioned in section 5(1)(d) or (e)--

(i)who, with the leave of the Court, applied for a vexatious proceedings order in relation to the applicant; and

(ii)who the Court considers should be served;

(f) any person--

(i)who made an application in relation to the applicant under the Vexatious Litigants Act 1981, section 3(2) or 5(2)2 before the commencement of this section; and

(ii) who the Court considers should be served.”

6. The history of the litigation between the applicant and the National Australia Bank (“NAB”) has been detailed in the reasons of Muir J which supported the declaration under the Act.^[2] It demonstrates that the applicant has been the unsuccessful party in trials and appeals in this Court, in proceedings in the Federal Court, and in a special leave application in the High Court of Australia. In this Court the matters arose out of, or were associated with, proceedings in which NAB sought moneys alleged to be owing by Freeman to the bank and in which NAB sought recovery of possession of a grazing property over which Freeman had given security in favour of NAB. The proceedings in the Federal Court were concerned with applications in the bankruptcy jurisdiction against Freeman.

7. In 2002 the applicant’s estate was sequestrated. He was discharged from bankruptcy on 25 April 2005.

8. The applicant, in addition to seeking leave under s 11 of the Act, also seeks:

1. Orders setting aside orders of this court in –

• NAB v Freeman [2000] QSC 295

• NAB v Freeman [2001] QCA 473

• Freeman v NAB [2006] QCA 260

• A decision of de Jersey CJ said to have been made on 15 October 2003;

2. Declarations that the contracts the subject of the various actions in this Court are void; and

3. Orders for restitution or compensation in the sum of $24,050,000 and $1,200,000.

9. I am required, by s 12 of the Act, to dismiss this application if:

1. the applicant’s affidavit does not substantially comply with s 11(3); or

2. the proceeding is a vexatious proceeding.

10. I turn first to the question of the applicant’s affidavit. There appear to be three affidavits by the applicant before the Court. The first, sworn on 7 May 2008, purports to be with respect to an application made under r 668 of the UCPR. It does not purport to comply with s 11(3) in any way. Another affidavit sworn on 12 May 2008 also purports to be supporting the application under r 668 and does not comply in any way with s 11(3). The third affidavit which is sworn on 20 May 2008 is an affidavit of service which, I note, demonstrates that the applicant is in breach of s 11(4) in that he has served a copy of the application on NAB. The affidavits which have been put before the Court do not comply in any way with s 11(3), nor do they attempt to comply. I am, therefore, compelled to dismiss the application.

11. I should note, for completeness, that the grounds advanced to support a reopening of the matters which have been debated many times in this Court do not raise any issues which have not already been considered. In his affidavit of 7 May, the applicant says that the application is “based on fresh evidence”. As far as can be made out from the material which has been filed, all the references to evidence are references to events which occurred in the period 1998 to 2006. None of those matters would be capable of being categorised as “fresh evidence”. The proposed proceeding falls squarely within the definition of “vexatious proceeding” contained in the schedule to the Act, as it would constitute an abuse of the process of the Court and would be instituted without reasonable ground.

12. The application is dismissed.