Mbuzi v Hall[2010] QSC 359

SUPREME COURT OF QUEENSLAND

Introduction

1. The applicant in the principal proceeding, Mr Mbuzi, is “an unrepresented but nonetheless experienced litigant”.^[1]  In this proceeding he applies for judicial review of certain decisions of the first respondent made on 11 June 2009 as a referee of the Small Claims Tribunal.  The second respondent (AAMI) was a respondent before the Small Claims Tribunal to the applicant’s claim for $3,276 in respect of a home building and contents insurance policy.  AAMI contended that accidental breakage to a stove’s cooktop was not covered by the policy.  The first respondent accepted AAMI’s contention and dismissed the applicant’s claim against it.

2. The applicant’s essential complaint in his proceeding for judicial review is that the first respondent should have disqualified herself from the Small Claims Tribunal proceedings “on grounds of apprehended bias and conflict of interest”, and that she should have allowed the applicant an adjournment to seek legal advice on documents given to him in the course of those proceedings. The proceeding for judicial review in this Court should have been fairly simple. Instead, it has generated numerous interlocutory applications, at least three applications by the applicant for leave to appeal to the Court of Appeal and an enormous volume of documents.^[2] 

3. By an amended application, AAMI and four individuals who the applicant joined as the third, fourth, fifth and sixth respondents in the proceeding for judicial review seek orders:

(a)pursuant to r 389A of the Uniform Civil Procedure Rules 1999 (UCPR) that the applicant not file any further applications in relation to the application for judicial review without the leave of the Court;

(b)for security for costs:

(i)pursuant to UCPR r 670 in relation to the application for judicial review;

(ii)pursuant to UCPR  r 772 in relation to an application for leave to appeal to the Court of Appeal.

The issues

4. UCPR r 389A relevantly 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;

…

(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 ….”

5. The first issue is whether I am satisfied that the applicant has made more than one application in relation to this proceeding for judicial review that is “frivolous, vexatious or an abuse of process”. If I am satisfied of that fact, then I have to consider if it is appropriate to exercise the discretion to order that he must not make a further application in relation to the proceeding without leave of the Court.

6. As to the applications for security for costs, I must decide whether a basis for making such an order exists under the rules or in the exercise of the Court’s inherent jurisdiction to order security for costs. This includes whether “the justice of the case requires the making of the order” under r 671(h) to order security for costs. I also must consider relevant discretionary matters. If I reach the conclusion that it is appropriate to make an order for security for costs, then I must decide the quantum of the security to be ordered.

A brief history of the litigation

7. On 12 June 2009 the applicant filed an application for judicial review. The respondents to the application were the magistrate who constituted the Small Claims Tribunal on 11 June 2009, AAMI and four of its directors (“the Directors”). On 23 June 2009 AAMI and the Directors filed an application to dismiss the application for judicial review. On 9 July 2009 White J (as her Honour then was) declined to dismiss the proceeding in its entirety, but made an order that the application against the Directors be dismissed, and ordered the applicant to pay the Directors’ costs of and incidental to the application, excluding the costs of 29 June 2009.

8. On 6 August 2009 the applicant filed an application for leave to appeal against the decision of White J. On 24 December 2009 the application was dismissed with costs.^[3]

9. On 6 January 2010 the applicant filed an application seeking a stay of the judgment of the Court of Appeal and relief pursuant to UCPR r 668.  The application was considered by Chesterman JA who decided the matter on 4 February 2010.^[4]  The application was based on the assertion that the applicant did not know until after the Court of Appeal gave judgment on 24 December 2009 that the Court intended to act upon certain further submissions, an affidavit and transcript, despite the applicant’s objection to the receipt of this material.  Chesterman JA concluded that the matter did not come within the terms of r 668.  His Honour concluded:

“There are no facts discovered which if discovered in time, would have entitled the applicant here to a different order.  He was made aware of what was being said by the respondents, he replied to it. 

What has happened is that the Court has preferred his opponent’s submissions to his, and made orders on the basis of evidence in submissions which were put before the Court by those on the other side.”

10. Chesterman JA referred to a second point that the applicant raised, namely that the affidavit, or the transcript annexed to it, was a forgery, and that no such order was made. His Honour concluded:

“That is needless to say a most serious allegation which to be taken seriously would require the most cogent evidence in support of it, and none whatsoever has been supplied.”

11. On 19 February 2010 Chesterman JA ordered the applicant to pay AAMI and the Directors’ costs of and incidental to the application filed on 6 January 2010 to be assessed on the indemnity basis.^[5]  Chesterman JA reiterated that he had dismissed the application brought pursuant to UCPR r 668 because he had no power under the rule to make the orders sought and because, in any event, the precondition for the power conferred by the rule had not been satisfied.  His Honour stated:

“The second consideration gave rise to the auxiliary concern that the application was based upon a serious misstatement of the relevant facts and a misrepresentation of what occurred during the hearing of the appeal and during the subsequent exchange of written submissions delivered pursuant to the direction of the court.”^[6]

Chesterman JA concluded:

“For these two reasons, the fact that the application was misconceived and because it was predicated upon facts which the applicant must have known were wrong, makes it appropriate to order indemnity costs, the order sought by the respondents.”^[7]

12. On 19 March 2010 the applicant filed an application for Special Leave to Appeal to the High Court against the judgments of the Court of Appeal given on 24 December 2009, 4 February 2010 and 19 February 2010. The High Court dismissed the application on 17 June 2010.

13. The Directors sought to have the costs ordered by White J on 9 July 2009 assessed. The Registrar made the necessary order for the costs to be assessed and appointed a Mr Bloom as the Costs Assessor.

14. On 29 January 2010 Mr Bloom forwarded correspondence to the Directors’ solicitors and to the applicant, enclosing his costs assessor’s certificate dated 29 January 2010.^[8]  Mr Bloom also wrote a letter dated 29 January 2010 to the Registrar referring to his appointment and enclosing in accordance with UCPR r 737 his costs certificate.  The costs certificate was filed on 1 February 2010.^[9]  On 26 February 2010 the Registrar made an order that the applicant pay the Directors’ costs in the sum assessed by Mr Bloom, namely $13,556.50. 

15. On 9 March 2010 the applicant filed an application seeking orders that the order dated 26 February 2010 be set aside, varied or stayed, and for the Registrar to refer the matter to a Judge. The application was heard and determined by Alan Wilson J on 10 May 2010. His Honour carefully considered the various complaints and arguments raised by the applicant. After addressing each of the applicant’s submissions, Wilson J concluded that the applicant was not entitled to the relief that he sought. The application was dismissed with costs to be assessed on the standard basis.

16. On 7 June 2010 the applicant filed a notice of appeal and application for leave to appeal against the whole of the judgment of Wilson J. That application has not been listed for hearing.

17. On 24 June 2010 the applicant filed an application to join Mr Bloom as a respondent in the judicial review proceedings and for other relief. The other relief sought to agitate issues in relation to the appointment of Mr Bloom as a cost assessor, his costs assessor’s certificate and other matters. The applicant’s affidavit in support of that application contained assertions in relation to Mr Bloom that he lacked impartiality and had written to the Court’s registry “making claims which I reasonably believe to be deceptive, misleading and false, for which I suspect is an attempt to cover-up his breaches of court rules.”^[10]  The affidavit did not provide a factual foundation for such serious allegations.  The applicant’s asserted suspicion and asserted belief that Mr Bloom acted as alleged were no substitute for evidence.  Having regard to the material concerning Mr Bloom’s correspondence to the court and the adjudication by Alan Wilson J of the applicant’s complaints concerning the process of costs assessment, I consider that the applicant’s serious allegation that Mr Bloom had engaged in “an attempt to cover-up his breaches of court rules” is without a proper foundation. 

18. Apart from lacking a proper factual foundation, the application brought against Mr Bloom faced the immunity provided by s 93LA of the Supreme Court Act 1991.

19. The application to join Mr Bloom as a party pursuant to UCPR r 69 was misconceived.  The application was heard by P Lyons J on 30 July 2010.  After considering r 69 his Honour stated:

“The underlying application for judicial review remains on foot.  It is concerned, however, with the correctness of the decision of the Small Claims Tribunal.  There is no reason whatsoever to think that Mr Bloom’s presence is necessary or desirable, just and convenient in relation to matters associated with that dispute.”

20. P Lyons J noted that there was an appeal on foot in relation to the decision of Wilson J. He had regard to the notice of appeal and was unable to glean “a proper basis for adding Mr Bloom as a party”. He concluded that the disputes raised in the appeal did not make it necessary that Mr Bloom be added as a party to the proceedings. His Honour went on to consider the other relief sought in the application and concluded that it did not provide a proper basis for the joinder of Mr Bloom. The application was dismissed. Mr Bloom did not seek his costs of the application despite, in my view, having good reason to do so. The directors sought their costs, and after considering the applicant’s opposition to this order being made, P Lyons J ordered that the applicant pay the costs of the Directors of and incidental to the application, including reserved costs.

21. On 27 August 2010 the applicant filed an application for leave to appeal against the decision of P Lyons J.^[11] 

22. The applicant’s amended application for judicial review, amended pursuant to UCPR r 378 on 5 July 2010, still names the Directors as the third, fourth, fifth and sixth respondents.  This is not simply a matter of oversight by including their names in the court document heading (something AAMI and the Directors have also done in their court documents).  The amended application filed 5 July 2010 was still directed against the first respondent, AAMI and the Directors.  The applicant asserts:

“There was only one Judicial Review application in relation to the decision of Mrs Hall made in favour of respondents two to six and that review application is still alive and in its original state with respondents two to six as still parties to the proceedings because there is no order to remove them as respondents to the review.”^[12]

23. His assertion that the Directors are still parties to the judicial review proceedings ignores the order of White J made on 9 July 2009 that the application for judicial review against the Directors be dismissed, being an order confirmed by the Court of Appeal. The Directors have been parties to applications within the judicial review proceedings because they have the benefit of costs orders. But they are not parties to the application for judicial review: a fact that the applicant is unable or unwilling to face.

Overview of the litigation

24. An application for judicial review of the first respondent’s decision on the grounds appearing in the original application and in the amended application for judicial review should have been a relatively simple matter to litigate. Instead, this proceeding and related applications for leave to appeal to the Court of Appeal have been unnecessarily complicated, protracted and costly. Most of the responsibility for that lies with the applicant. In his reasons for judgment in the Court of Appeal on 24 December 2009, Fryberg J referred to the applicant’s reply as comprising “mainly an offensive and rambling personal attack on the Directors, White J and counsel for his opponents”.^[13]  Many other affidavits and submissions filed by the applicant in the proceedings are of a similar character.

Relevant principles

25. A self-represented litigant, like any other litigant, impliedly undertakes to the Court and to the other parties to proceed in any expeditious way.^[14]  The purpose of the rules of civil procedure is to “facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”.^[15]  The just resolution of the real issues in civil proceedings may on occasions require a judge to give proper assistance to self-represented litigants to ensure that the proceedings are conducted fairly and to avoid “undue delay, expense and technicality”.^[16]  The proper scope for assistance depends on the particular litigant and the nature of the case.^[17]  The judge cannot become an adviser to the self-represented litigant, for the role of the judge is fundamentally different to that of a legal adviser.  Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented.^[18]

26. In determining the application I take account of the fact that the applicant is self-represented. However, his self-represented status does not entitle him to bring interlocutory applications that have no real prospect of success, delay the just and expeditious resolution of the principal proceeding and generate unnecessary costs to other parties. The applicant’s self-represented status does not entitle him to support his applications with documents that contain offensive, rambling and unfounded personal attacks on other parties, their legal representatives, costs assessors and judges.

27. A court is entitled to extend some latitude to a self-represented litigant who is not familiar with forms and procedure, provided in doing so injustice and prejudice is not occasioned to other parties, and also provided the court is able to achieve a just and expeditious resolution of the real issues of the proceeding at a minimum of expense. A self-represented litigant should not be permitted to disregard rules and to conduct litigation in a manner which is unjust to other parties and contrary to the interests of justice. As Keane JA (as his Honour then was) observed in Robertson v Hollings:^[19]

“… litigation is not a learning experience.  The Courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties.”

His Honour continued:

“Judge Learned Hand, one of the greatest of modern judges, is quoted as having said: ‘After now some dozen years of experience I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.’  Litigation in the superior courts is expensive, time consuming and extremely stressful for litigants.  These negative aspects of the adversarial system of civil justice are minimised and rendered tolerable by the rules which ensure that the process is conducted in accordance with irreducible minimum requirements of fairness and rationally.”^[20]

28. Lord Phillips MR in Bhamjee v Forsdick^[21] stated:

“A court’s overriding objective is to deal with cases justly.  This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases).  This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.  They thereby divert the court’s resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit.”  (emphasis added)

29. This Court has an inherent jurisdiction to prevent an abuse of its processes, including by requiring a vexatious litigant to obtain leave to issue a fresh application within an existing proceeding.^[22]  The introduction of r 389A does not displace this inherent jurisdiction.^[23]

30. Rule 389A does not require a determination that the applicant is a vexatious litigant. Whether or not he has frequently instituted or conducted vexatious proceedings in Australia so as to justify orders being made under the Vexatious Proceedings Act 2005 (Qld) is not a matter for my determination.  Those with standing to bring an application under that Act may wish to address that issue.  The issue under r 389A is whether the applicant has made more than one application in relation to this proceeding that is “frivolous, vexatious or an abuse of process”.

31. AAMI and the Directors submit that the words “frivolous” and “vexatious” should be interpreted in accordance with authorities that have considered those words in the context of vexatious proceedings. Mudie v Gainriver Pty Ltd (No. 2)^[24] considered the words in the context of the (now repealed) Local Government (Planning and Environment) Act 1990 (Qld), s 7.6(1) which permitted orders to be made if the Court considered a proceeding to have been “frivolous or vexatious”.  McMurdo P and Atkinson J stated:

“[35] The words ‘frivolous or vexatious’ are not defined in the Act and should be given their ordinary meaning, unfettered by their meaning in the very different context of striking out or staying proceedings for an abuse of process.  By the time an application for costs is made, the court knows the issues which have been litigated whilst a interlocutory applications, the court must to some extent speculate and must necessarily be cautious to ensure a deserving claimant is not unjustly deprived of the opportunity of a trial of the action.  The Macquarie Dictionary defines ‘frivolous’ as ‘of little or no weight, worth or importance; not worthy of serious notice: a frivolous objection.  2. characterised by lack of seriousness or sense: frivolous conduct …’ and ‘vexatious’ as ‘1. causing vexation; vexing; annoying …’.

[36] Unquestionably, something much more than lack of success needs to be shown before a party's proceedings are frivolous or vexatious.  Although in a different context, some assistance can be gained from the discussion of the meaning of these words in Oceanic Sun Line Special Shipping Company Inc v Fay where Deane J states that ‘oppressive’ means seriously and unfairly burdensome, prejudicial or damaging and ‘vexatious’ means productive of serious and unjustified trouble and harassment, meanings apparently approved by Mason C.J. Deane, Dawson and Gaudron JJ in Voth v Manildra Flour Mills Pty Ltd. Those meanings are apposite here.” (footnotes omitted)

Williams JA was also of the view that the words should be given their ordinary meaning, and followed earlier authority that “vexatious should be understood as meaning productive of serious and unjustified trouble and harassment”.^[25]

32. The applicant did not contest the submission that such a meaning should be given to the word “vexatious” in r 389A. I accept the submission.

33. A proceeding that is instituted to harass or annoy, to cause delay or detriment, or for another unlawful purpose is a “vexatious proceeding”. However an improper purpose is not necessary.^[26]  As Toohey J stated in Jones v Cusack^[27] the question is whether the legal proceedings are vexatious, not whether they have been instituted vexatiously.  It is not the respondent’s belief in the correctness of his arguments with which the Court is concerned.^[28]

34. The essential issue in determining whether r 389A applies in this case is whether the applicant has brought more than one application in relation to this proceeding (including an appeal in relation to it) that has been productive of serious and unjustified trouble and harassment.

Has the applicant brought more than one application in relation to this proceeding that is frivolous, vexatious or an abuse of process?

35. The application that was dismissed by Chesterman JA was misconceived, as his Honour found. In addition, it was advanced in reliance upon assertions that were wrong, and which Chesterman JA found the applicant must have known were wrong. The applicant alleged malpractice and misconduct in relation to the transcript of proceedings in the Small Claim Tribunal.^[29]  The essence of the allegation was an alternation of the transcript: a most serious allegation requiring clear evidence.  As Chesterman JA concluded, no such evidence was supplied by the applicant.

36. The inconvenient truth which the applicant unreasonably refused to accept is that the transcript of the Small Claims Tribunal records a decision of the first respondent on 11 June 2009 removing the Directors as respondents before she proceeded to hear and determine the merits of the claim against AAMI.^[30]

37. The misconceived application that was made to Chesterman JA was advanced with serious allegations against persons associated with AAMI and the Directors that the applicant failed to justify. Chesterman JA found that the applicant must have known that the facts upon which it was predicated were wrong, and I respectfully agree with that conclusion. The bringing of the application was productive of serious and unjustified trouble and harassment. I find that it was a vexatious application.

38. I next consider the application to join Mr Bloom, the costs assessor, as a party to these proceedings. It was misconceived. There was no proper basis to join Mr Bloom as a party. The applicant’s grievances against Mr Bloom had been agitated, without success, before Alan Wilson J on 10 May 2010. Leaving aside Mr Bloom’s broad immunity under s 93LA of the Supreme Court Act 1991, his presence as a party was not necessary, desirable, just or convenient to the resolution of the substantive proceeding for judicial review.  The application was brought without any reasonable basis.  It harassed Mr Bloom, AAMI and the Directors.  It was productive of unnecessary costs.  It was apt to cause trouble and annoyance to the respondents to that application, without justification.  I find that it was a vexatious application.

39. It is unnecessary to consider whether the other applications that AAMI and the Directors point to were frivolous, vexatious or any abuse of process. The precondition for r 389A to apply has been established: the applicant made more than one application in relation to this proceeding that was vexatious.

The discretion to make an order under r 389A

40. The applicant did not identify any pending application in this proceeding which he intended to file that would be affected by a requirement that he obtain leave of the Court before making the application. He did not submit that an order of the kind sought would unreasonably frustrate his ability to bring a further application.

41. I consider that an order of the kind sought is appropriate. It will require the applicant to obtain leave to make a further application in relation to this proceeding. This includes applications that have the effect of frustrating and delaying the assessment of costs that he has been ordered to pay, and applications for leave to appeal against decisions in relation to costs.

42. I consider that an order made under r 389A is necessary to ensure that the real issues in the judicial review proceeding are determined without excessive delay and without the incurring of unnecessary costs on interlocutory applications that have no substantial merit.

43. I make an order pursuant to r 389A in accordance with paragraph 2A of the amended application filed 20 July 2010.

Other matters in relation to the rule 389A application

44. I have found it unnecessary to make findings in relation to the applicant’s motivation in bringing various applications in relation to this proceeding, and in unsuccessfully resisting applications by AAMI and the Directors. I also have not delayed delivery of my decision by addressing in detail the numerous, serious personal attacks that the applicant has made in affidavits and submissions against other parties, their legal representatives, Mr Bloom and judges. Individuals who are defamed without justification on an occasion of absolute privilege have no remedy in defamation. Conduct which imposes improper pressure on other litigants may be the subject of contempt proceedings. Scandalous and other completely unjustified allegations against individuals that are contained in affidavits and submissions that are read in open court may be fairly reported in the media. Any fair report of the allegations would need to include counterveiling material that is relied upon in the same hearing. If judicial officers had the time, then a large amount of time would be required to consider whether material filed by the applicant should be removed from the court file or not open to public access. But such an exercise would divert judges and public resources from other cases that await hearings.

45. Judges of this Court have not had the time to dwell upon the large number of serious allegations made by the applicant against other parties, their legal representatives, a costs assessor and other judges. The limitations on judicial resources to dwell upon what the Court of Appeal described as offensive and rambling personal attacks may encourage the applicant to repeat these allegations or make similar allegations. I have sufficient confidence in the public to not accept allegations of corruption and similar scandalous allegations against judicial officers. Reference to the hundreds of pages of transcripts and other reliable material on the court file would confirm that such allegations are ill-founded.

46. The applicant is not constrained by the professional obligations of officers of the Court, and persistently makes serious allegations against the legal representatives of AAMI and the Directors. A recent example is an allegation that a solicitor made a false statement in an affidavit. The applicant served on AAMI and its Directors what appeared to be an application to join the solicitor as a party to the judicial review application.^[31]  The allegation was that the solicitor made a false statement in an affidavit sworn on 6 May 2010.  The affidavit was of a formal kind and exhibited correspondence in relation to the costs assessment undertaken by Mr Bloom.  I apprehend that the alleged false statement is that Mr Bloom assessed costs in the sum of $13,556.50 and filed his certificate with this Court on 1 February 2010.^[32]  The solicitor’s statement would appear to be correct, given the contents of correspondence addressed to the Registrar dated 29 January 2010 exhibited to Mr Bloom’s affidavit filed 14 May 2010, and the fact that the Court’s records state that the certificate was filed on 1 February 2010.  It is apparent that Mr Bloom caused his certificate to be filed and it was filed on 1 February 2010.  The allegation that the solicitor made a false statement in his affidavit appears to be without any reasonable foundation.  The applicant’s “report” to the Court of alleged wrongdoing by the solicitor is nonsense.  The solicitor should not have been troubled by such an unsubstantiated allegation.  However, allegations of this kind do tend to trouble solicitors whose qualifications and reputations are hard-earned, even when they know that the allegation is unsubstantiated.

47. I found the applicant to be an unreliable historian of even recent events. The matter came before me on 31 August 2010, having been part heard by Margaret Wilson J in the Applications List on 30 August 2010. The applicant sought to advance a preliminary argument before me based on r 378, namely that the parties bringing the application had failed to obtain leave to amend the application. He denied that Wilson J had decided the issue the day before.^[33]  I ordered the transcript which recorded that Wilson J ruled against the applicant on his r 378 point.^[34]  The applicant could have been under no misunderstanding about this, since following the ruling he obtained an adjournment of the amended application.

48. Despite this knowledge, the applicant attempted to reargue his r 378 point before me.^[35]  This was despite access to the previous day’s transcript.  I declined to allow him to reargue the point.

49. It was convenient and appropriate for the application pursuant to UCPR r 389A to be heard at the same time as the previously filed application for security for costs.  The application under r 389A was successful and the costs of and resulting from the amendment made to the application under r 378 should not be paid by the successful parties who made the amendment.  I so order so as to alter what would otherwise be the effect of r 386 in relation to costs of and resulting from the amendment made under r 378.  Costs should follow the event in respect of the successful application under r 389A.

The applications for security for costs

50. On 16 July 2010 an application was filed by AAMI and the Directors seeking orders:

(a)pursuant to r 670 of the UCPR that the applicant provide security for the costs of AAMI in relation to his application for judicial review;

(b)pursuant to r 772 of the UCPR in relation to his application for leave to appeal to the Court of Appeal (No 5886 of 2010) that the applicant provide security for the prosecution of the appeal.

By letter dated 25 June 2010 the solicitors for AAMI and the Directors had foreshadowed such an application.  The letter noted that in the course of the judicial proceedings their clients had been granted four costs orders against the applicant, that on 17 June 2010 the High Court dismissed the applicant’s application for Special Leave to Appeal against three orders of the Court of Appeal and that the applicant’s application filed on 7 June 2010 to the Court of Appeal had no reasonable prospects of success for the reasons outlined in earlier correspondence and was an abuse of the Court’s process.  The letter expressed concern that the applicant may not have sufficient financial resources to pay costs orders arising from successful opposition to the applicant’s various applications.  It indicated the extent of inquiries that have been undertaken which indicated that the applicant owned a 1998 Toyota Landcruiser motor vehicle and a residential property jointly owned with his wife (which is mortgaged to the ANZ Bank), that the applicant did not receive work-related income and that his only income is from Centrelink.  The applicant was asked to complete a statement of financial position and advised that unless he provided reliable evidence that he could satisfy costs orders an application seeking security for costs would be brought.  The applicant did not respond to the letter dated 25 June 2010.

51. The application came before P Lyons J on 30 July 2010 along with the applicant’s application in relation to the joinder of Mr Bloom. The applicant’s application was heard first. Surprisingly, it was not until that application was determined against the applicant that he raised an objection to P Lyons J hearing the other application. It is sufficient for present purposes to observe that, in my opinion, the matter raised by the applicant did not provide a proper basis for P Lyons J to not hear the matter. However, the applications for security for costs and for a final order under r 389A were adjourned. An interim order was made under r 389A until the adjourned hearing date. I mention these matters in order to explain the delay in the application for security for costs coming on for hearing. I also mention the course of proceedings on 30 July 2010 in order to reject the applicant’s submission that, the Court having made an interim order under r 389A, AAMI and the Directors cannot litigate the same issue.

52. On 27 August 2010, shortly before the adjourned hearing date, the applicant filed an application for leave to appeal against the orders of P Lyons J which dismissed the applicant’s application to join Mr Bloom.^[36]  I have previously expressed my view concerning the complete lack of merit of the application that was heard and determined by P Lyons J on 30 July 2010.  I have concluded that the application was vexatious.  I consider that the application for leave to appeal against the dismissal of that application is without merit and is vexatious in the sense earlier discussed.

53. The order that I have made pursuant to UCPR r 389A requiring the applicant to obtain leave before bringing further applications in relation to this proceeding (including an appeal in relation to the existing proceeding) may operate to limit the costs associated with interlocutory and related applications in this matter.  The applications for security for costs seek orders that security be provided in amounts based upon the affidavit of an experienced costs assessor, Mr Garrett. 

The parties’ submissions in relation to security for costs

54. The application for security for costs pursuant to r 670, or alternatively pursuant to the Court’s inherent jurisdiction to make orders for security for costs,^[37] is based on the submission that the Court should be satisfied that the justice of the case requires the making of the order.^[38]  AAMI submits that the justice of the case requires the making of an order for security because:

1. The applicant has failed to pay the assessed costs ordered by White J, has not obtained a stay in respect of the order requiring him to pay those costs and failed in his application before Alan Wilson J.

2. The applicant has failed to pay the costs ordered against him by the Court of Appeal on 24 December 2009 and by Chesterman JA on 19 February 2010.  These costs have not been assessed under the rules, however, the solicitors for AAMI and the Directors provided a short-form of assessment to the applicant and asked him to accept the assessment.  He made no response to that request.

3. The applicant is impecunious.

4. The litigation in this proceeding has been conducted by him in a vexatious manner.

55. The applicant submits that he does not fall into any of the categories for which security for costs can be ordered in the light of the prerequisites in r 671 and the discretionary factors in r 672. He denies that he has ever declared himself to be impecunious. He denies that there are any legitimately assessed costs that he has failed to pay.

56. The second application for security for costs is made pursuant to r 772 and is in relation to the applicant’s application for leave to appeal to the Court of Appeal (CA No. 5886 of 2010) against the interlocutory order of Alan Wilson J. This second application for security for costs raises similar issues and discretionary considerations as to whether the justice of the case requires an order for security for costs. An additional, relevant factor is that the applicant “has already had a day in court and lost”.^[39]  Still, the Court has an unfettered discretion whether to order security for the prosecution of the proposed appeal, and if so, in what amount.  I shall first address the principles that apply in relation to the application made pursuant to r 670, or alternatively pursuant to the Court’s inherent power to order security for costs, in relation to the application for judicial review.

Relevant principles – security for costs

57. A Court may order pursuant to r 670 a “plaintiff” to give the security the Court considers appropriate “for the defendant’s costs of and incidental to the proceeding” only if the Court is satisfied of one or more of the matters stated in r 671.  If the applicant is not a “plaintiff” for the purposes of r 670,^[40] then the matters stated in r 671 and the discretionary considerations stated in r 672 provide guidance about matters which may be relevant to the exercise of the Court’s inherent jurisdiction.  However, these are not exhaustive of the factors that may be taken into account in deciding whether to order security for costs pursuant to either r 670 or the Court’s inherent jurisdiction.  In the present case, a relevant consideration is the operation of s 49 of the Judicial Review Act 1991 (Qld) concerning the awarding of costs in a judicial review proceeding.  However, s 49 does not remove the Court’s general discretion to order that costs should follow the event.  If, for example, the application for judicial review is dismissed because it is found to lack merit, then it would be open to the Court to order that the applicant to pay AAMI’s costs of and incidental to the application.

58. In its application made pursuant to r 670, AAMI submits that the prerequisite for security for costs stated in r 671(h) is established, since the Court should be satisfied that “the justice of the case requires the making of the order.” In determining the application under r 670 or the alternative application to exercise the Court’s inherent jurisdiction, consideration of the justice of the case requires regard to well-established principles governing orders for security for costs. One such general principle is that, so far as natural persons are concerned, poverty should not bar their access to justice.^[41]  In Harpur v Ariadne Australia Limited^[42] Connolly J referred to the long-standing principle that:

“… the door of the court should not be barred to a prospective plaintiff, resident within the realm, because he is impecunious.  Thus as between residents within the jurisdiction, prosecuting what could properly be described as their own suits, the law required the defendant to accept the risk that the plaintiff might not be able to satisfy the order as to costs.”

59. The difficulties presented for a defendant by a plaintiff’s impecuniosity have led to rules of court and statutory powers, and to the development of principles governing the exercise of the Court’s inherent jurisdiction under which a party may be ordered to provide security for costs. In Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd^[43] French CJ, Gummow, Hayne, Heydon and Crennan JJ stated:

“In general, the bare fact of impecuniosity is not of itself reason to order a plaintiff who is a natural person to provide security for costs.  But a corporate plaintiff may be ordered to provide security where it is shown that it will not be able to meet the defendant’s costs.”

In that case, their Honours found that it was neither necessary nor appropriate to consider the extent to which those two general propositions should be elaborated or qualified. 

60. Heydon J stated:

“Mere impecuniosity is not an absolute barrier to ordering security for costs against a natural person, although it is a factor against doing so.  In particular, there are instances additional to those listed in r 42.21(1)(a)-(c) and (e) where it can be done.  They include the vexatious conduct of litigation by a plaintiff who had failed to set aside an earlier judgment, instances where the plaintiff has dissipated assets and/or not paid previous costs orders (particularly costs orders in favour of the defendant), instances where the plaintiff brings a weak case to harass the defendant and instances where the plaintiff brings a case for the benefit of others, but not solely for that benefit.  Hence the supposed ‘general principle … that poverty is no bar to a litigant’ is a severely qualified one.  So is the ‘overriding principle of open access to justice’ (or, more realistically, at least access to the courts).”^[44]

Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd^[45]and Weger v Boola Boola Petroleum and Natural Gas Co (No Liability)^[46] were cited in support of these propositions.

61. In Green the New South Wales Court of Appeal considered the general rule that “a natural person who sues will not be ordered to give security for costs, however poor he is”, and qualifications to it.  The discussion arose in the context of an application for costs in proceedings brought by a company liquidator.  I respectfully follow the Court’s analysis of the general rule.  The leading judgment of Hodgson JA, with whom Basten and Campbell JJA agreed on matters of principle, confirmed that it is clearly established that the Supreme Court has a discretion to order security for costs against a natural person in circumstances falling outside those set out in the rules of court.^[47]  Reference was made to exceptions to the general rule that “a natural person who sues will not be ordered to give security for costs, however poor he is”, and to the statement of Young CJ in Melville v Craig Nowlan and Associates Pty Limited^[48] that security would be ordered where not to do so would allow proceedings which would be vexatious or oppressive or an abuse of the court’s process.

62. Hodgson JA quoted the following proposition that was stated by Kirby J in Merribee Pastoral Industries Pty Limited v Australia & New Zealand Banking Group Limited:^[49]

“There is therefore no absolute rule (applicable statute apart) that the impecuniosity of a party will entitle its opponent to an order for security for its costs. Where the power to so provide exists in uncontrolled terms, it would be to fetter the jurisdiction impermissibly to adopt such a rule or even a prima facie entitlement. By the same token, the inability of a party to meet the costs of an unsuccessful proceeding is not irrelevant to the exercise of the jurisdiction. Litigation is inevitably expensive and burdensome. To add to the burdens of a party successful in the outcome, those of paying its costs with little or no prospect of recovery under an order for costs may, in particular circumstances, be a reason for offering a measure of protection to that party by way of security for costs.”

63. After reviewing various authorities, Hodgson JA advanced guidelines in relation to applications concerning liquidators. These included the proposition that cases in which security for costs might be ordered against a natural person outside those provided for in the Court rules include cases where (in addition to proof that there is reason to believe the plaintiff will be unable to pay the defendant’s costs):

“…the plaintiff has dissipated assets and/or has not paid previous costs orders (especially if those costs orders were in favour of the defendant) and/or brings a weak case to harass the defendant and/or brings a case for the benefit of others (albeit not solely for their benefit as apparently required by UCPR 42.21(1)(e)).”^[50]

Hodgson JA added:

“In my opinion, it would be an oversimplification to say that underlying these guidelines is a broader principle that defendants should be protected against being unable to collect costs ordered against plaintiffs unless this would stultify the litigation.  Certainly, these are relevant considerations; but in my opinion also relevant are the considerations that there should not be undue inhibitions on less wealthy persons from seeking vindication of their rights against more wealthy persons, and that there could be such inhibitions if it was in every case open to defendants to apply for security for costs on the basis of some evidence (or even on the basis of fishing notices to produce) suggesting inability to pay costs, and to claim that security should be given unless the plaintiff can prove it would stultify the litigation.”^[51]

64. In Melville v Craig Nowlan and Associates Pty Limited^[52] Heydon JA considered authorities to the effect that there is a general rule that “poverty is no bar to a litigant”,^[53] or that there is a  basic rule that “a natural person who sues will not be ordered to give security for costs, however poor he is”.^[54]  Such a general rule, or basic rule, was a strict one, but subject to specific exceptions, and Heydon JA observed that it is possible that the “rule” is less absolute than certain formulations of it would suggest.

65. Young CJ in Eq agreed with the reasons of Heydon JA in Melville.  Young CJ in Eq had previously analysed in Morris v Hanley^[55] the history of the “rule” that poverty is no bar to a litigant.  In Melville Young CJ stated that “the underlying principle is that security will be ordered in cases where not to do so would allow proceedings which were vexatious or oppressive”^[56] and observed:

“The so-called rule about poverty being no bar is merely one of the factors the court takes into account when making its final assessment as to whether the proceedings, without security for costs, would be an abuse of the court’s process.”^[57]

66. In Morris v Hanley Young J (as the Chief Judge then was) concluded that the leading cases show that the factors a Court must take into account when considering the general question as to whether the inherent power should be exercised to order security for costs include:

1. whether the plaintiff's claim is bona fide and not a sham;

2. whether the plaintiff has a reasonably good prospect of obtaining the orders he or she seeks;

3. whether an order for security would bring the proceedings to an end;

4. whether the plaintiff has a want of assets and how this was brought about;

5. whether there is anyone standing behind the plaintiff who might benefit from the action but who is unwilling to contribute to the risk involved in the action; and

6. the question of delay.

This list was said to be “a non-exhaustive list of guidelines” and Young J stated that one must not lose sight of the basic question as to whether “the action is harassing and vexatious”.^[58]  I do not understand the reference to “harassing and vexatious” as relating only to proceedings which are brought by the claimant with the intention that they be harassing and vexatious.  However, the fact that a defendant is harassed or vexed by the prospect that a claimant without substantial assets will be unable to pay a costs order which is made as a result of the successful defence of the proceeding would not seem to be sufficient to qualify the action as one that is “harassing and vexatious” in the sense referred to.

67. The bare fact that a claimant may be unable (or even will be unable) to meet an adverse costs order after the trial of the proceeding does not mean that the commencement or further prosecution of the proceeding is an abuse of process.^[59]  The principles upon which security for costs are ordered under court rules and under the court’s inherent jurisdiction permit, within limits, impecunious natural persons to litigate bona fide and viable claims with the prospect that the claimant will be unable to meet a costs order made in the event that the claim fails.  There is no general rule that to prosecute proceedings without reasonable prospects of being able to meet an adverse costs order is an abuse of process.^[60]  Unless and until the principles governing security for costs are revisited, I would not regard the bare fact that a claimant may be unable (or even will be unable) to meet an adverse costs order after the trial of the proceeding as rendering the proceeding “harassing and vexatious” in the sense discussed by Young J.

68. As a general rule, the law requires defendants to accept the risk that natural persons who litigate viable claims in good faith for their own benefit might not be able to satisfy an order for costs. However, a claimant who “has adopted a vexatious mode of conducting the litigation”^[61] may fall outside the general rule.  There may be other processes by which such vexation may be remedied, including a stay of proceedings.  Still, where a party has adopted a vexatious mode of conducting the proceedings, the interests of justice in the case may justify an order for security for costs.

69. The non-payment of existing costs orders may constitute vexation, particularly where the prior costs orders relate to a previous case involving similar disputes.^[62]  The core element of vexation may be readily identified since “allowing the second case to proceed risks increasing the financial burden upon the defendant, who has already suffered the detriment of unpaid costs orders”.^[63]  The circumstances in which the previous costs orders were made, and the steps taken to have them quantified, assessed and enforced may be relevant.  Naturally, any costs orders in favour of the claimant may need to be taken into account.

70. The relevant principles for the purpose of determining whether security for costs should be ordered in respect of the applicant’s judicial review proceeding include the following:

1. The principle that “the door of the court should not be barred to a prospective plaintiff, resident within the realm, because he is impecunious”^[64] must be set against the object of protecting a defendant against the possibility that the plaintiff, if unsuccessful, will be unable to meet an order for costs. The bare fact that a plaintiff may be unable (or even will be unable) to meet an adverse costs order after the trial of the proceeding does not justify an order for security for costs. There is no general principle that defendants should be protected against being unable to collect costs ordered against plaintiffs unless this would stultify the litigation.

2. There should not be “undue inhibitions on less wealthy persons from seeking vindication of their rights against more wealthy persons, and … there could be such inhibitions if it was in every case open to defendants to apply for security for costs on the basis of some evidence … suggesting inability to pay costs, and to claim that security should be given unless the plaintiff can prove it would stultify the litigation.”^[65]

3. The exceptions to the basic rule that “a natural person who sues will not be ordered to give security for costs, however poor he is” include cases where the plaintiff has adopted a vexatious mode of conducting the litigation.

4. The unmeritorious conduct of interlocutory or related applications that result in unpaid costs orders may evidence a vexatious mode of conducting the litigation.  The bare fact that unpaid interlocutory costs orders exist is not sufficient to conclude that a party has adopted a vexatious mode of conducting the litigation.  An interlocutory application may have been brought or resisted on reasonable grounds by an impecunious litigant, and the determination of the application may have been finely balanced.   In other cases, the unmeritorious prosecution or defence of interlocutory applications, resulting in unpaid costs orders, will evidence a vexatious mode of conducting the litigation.

5. Such conduct may breach the party’s implied undertaking to the Court and to the other parties to proceed with expedition, and therefore warrant sanctions under r 5 of the UCPR.  Depending on the circumstances, the sanctions may include a stay of the proceeding until the costs are paid, or in exceptional circumstances, dismissal of the proceeding.

6. The Court is obliged to apply the rules of civil procedure with “the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules”.  The purpose of the rules is to facilitate the just and expeditious resolution of the real issues in proceedings at a minimum of expense.  The manner in which litigation is conducted by a party may satisfy the court that the justice of the case requires the making of an order for security for costs.^[66]

7. The principle that ordinary citizens be permitted to litigate viable claims without being stymied by orders for security for costs requires a defendant to accept the risk that the plaintiff might not be able to satisfy an order as to costs if the plaintiff is unsuccessful.  It does not require a defendant, wealthy or poor, to incur unnecessary costs in defending vexatious proceedings.  In the case of the vexatious conduct of interlocutory proceedings by a claimant, resources that would be otherwise devoted by a defendant to the defence of a claim at trial are devoted to interlocutory battles.  If the interlocutory costs orders in such a case are unpaid, the source of vexation is obvious.  If, however, they are paid, the payment reduces the plaintiff’s resources and may heighten the risk that the plaintiff will not be able to satisfy a costs order if the plaintiff is unsuccessful at trial.

8. The existence of an arguable claim in the principal proceeding (in the sense of one that survives an application for defendant’s summary judgment) or even a claim with reasonable prospects provides no excuse to a claimant to adopt a vexatious mode of conducting the litigation.  An order for security for costs may be warranted in such a case in the interests of justice.

Application of relevant principles

71. The applicant has failed to pay the costs ordered by White J, which have been assessed. There are other costs orders made in AAMI’s favour. These include the costs ordered by the Court of Appeal on 24 December 2009, by Chesterman JA on 19 February 2010, by Alan Wilson J on 10 May 2010, and by P Lyons J on 30 July 2010. There is no evidence that these costs orders have been assessed.  The protracted process by which the applicant has contested the assessment of costs ordered by White J would make a reluctance to be involved in too many similar contests over costs at the same time understandable.  So does the applicant’s apparent inability to meet the costs that have already been assessed.  AAMI and the Directors have sought to resolve the assessment of costs in the Court of Appeal, without response from the applicant.

72. No costs orders appear to have been made in the applicant’s favour. Costs were reserved by Mullins J on 29 June 2009 and by Boddice J on 2 July 2010.

73. The applicant denies that there are “any legitimate assessed costs submitted to me for which I have failed to pay”. But this ignores the fact of the assessment of the costs ordered by White J, and the applicant’s failure to overturn that assessment in proceedings determined by Alan Wilson J and P Lyons J. The applicant has not indicated a willingness or ability to pay the costs that have been assessed to date.

74. The applicant explains his omission to refer to his residential family property in affidavits filed in relation to his means, as being based on guidance that a “residential family house jointly in my name and wife’s name need not be included for purposes of means-testing”. However, he provides no indication concerning the equity in his home. He submits that “only corporations can ordinarily be declared to be impecunious”, but this is not so. The applicant had an opportunity to respond to reasonable inquiries made prior to the filing of the application concerning his net assets, and he has not disclosed them in an affidavit in response to the application for security for costs. He denies that he has ever declared himself to be “impecunious”, but gives no reliable evidence to suppose that he has an ability to pay the costs orders that have already been made against him in these proceedings and related appeals, let alone the costs that may be ordered in the future.

75. If the applicant fails to establish an entitlement to relief in the judicial review proceeding, then there is a reasonable prospect that the applicant will be ordered to pay AAMI’s costs of and incidental to the proceedings, notwithstanding the provisions of s 49 of the Judicial Review Act in relation to costs.

76. The material relied upon by AAMI and the absence of information from the applicant concerning his net assets lead me to conclude that there is reason to believe that the applicant will not be able to pay:

(a)existing cost orders made against him in favour of  AAMI and its Directors;

(b)AAMI’s costs of the judicial review proceeding if ordered to pay them.

77. I turn to consider whether the applicant has adopted a vexatious mode of conducting the litigation, and more generally, whether it is in the interests of justice in this case for an on order for security for costs to be made.

78. I have previously found that two applications brought by the applicant were vexatious. I extend appropriate latitude to the applicant’s status as a self-represented litigant. I have regard to an affidavit filed by him after the conclusion of the hearing in which he purports to report complimentary things said about him by judicial officers on various occasions. The affidavit’s contents extended beyond the subject matter on which I granted leave to file a further affidavit, namely comments made by a Magistrate in a traffic matter. Given the applicant’s unreliable account to me of what was said by Wilson J on 30 August 2010, I have reservations about the reliability of his recollection of what other judges have said about him in the course of past litigation. But if the applicant’s recollection of what was said by Judges in other cases is accurate, my concern remains with his conduct of this litigation, being the application for judicial review and related applications for leave to appeal against orders made in the course of the judicial review application.

79. The applicant has conducted the litigation in a manner that has generated excessive and unnecessary costs for other parties, and wasted scarce public resources on arguments that are devoid of merit. The affidavits and submissions filed by the applicant contain irrelevant and scandalous assertions. He persists in arguments that have been determined against him. A simple example is the rule 378 argument that he argued and lost before Margaret Wilson J on 30 August, 2010 and attempted to re-argue before me the next day.

80. A more serious example is his persistence in arguing that the Directors are still respondents to the judicial review proceedings. He argues, as I have already noted, that the Directors are still parties to the proceeding for judicial review “because there is no order to remove them as respondents to the review”^[67].  But, of course, the application for judicial review against them was dismissed by White J, and the Court of Appeal did not vary that order.  Despite this, the applicant seeks to argue that the Directors are necessary and required parties to the proceeding as they were parties to the decision sought to be reviewed.  This ignores the fact that by the time the decisions of the first respondent that the applicant seeks to review were made, the Directors had been removed as parties before the Small Claims Tribunal.  Whatever basis the applicant, or indeed any other party, once may have had to rely upon the formal orders of the Tribunal that indicated that the claim against each respondent had been dismissed, the fact is that the Directors were found in the proceeding before the Tribunal to be inappropriately joined and were removed from it.  The transcript of the Tribunal’s proceeding that was placed before the Court of Appeal recorded this fact.

81. The applicant persists in asserting otherwise. In paragraphs 19-22 of his further submissions filed on 7 September 2010 he accuses counsel and solicitors for AAMI and the Directors of misleading courts by asserting that the Directors have been removed as parties. His attack on those lawyers is unfair and inaccurate. The Directors have been removed as parties to the judicial review proceeding. As P Lyons J explained on 30 August 2010, in a passage quoted by the applicant in supplementary submissions, the Directors were removed as parties by order of White J, but are parties that have the benefit of costs orders made in their favour, and therefore were proper parties to applications concerned with the order as to costs. The applicant is either unable or unwilling to face the fact that his application for judicial review was dismissed in respect of the Directors. Worse, he accuses the lawyers who refer to the effect of the order of White J as being “ignorant and dumb” and raising arguments that are “misconceived, vexatious, frivolous and meritless”.

82. The applicant submits that the Court of Appeal found that the lawyers for AAMI and the Directors “deliberately presented ‘half truth’ to the court”. The fact is that the Court was critical of both parties for not placing the transcript of the Tribunal hearing before White J. Both the applicant and a supervisor from AAMI were present before the Tribunal, and both of these individuals should have known that the Directors had been removed from the proceedings in the Tribunal. This fact was not mentioned in the affidavits filed before White J. The Court of Appeal was particularly critical of the applicant:

“When Mr Mbuzi told White J that the directors had not succeeded in an attempt through her to have them removed, his statement was allowed to stand uncontradicted.  That statement was a most misleading half truth.  The facts on which it was based were subsequently set out in Mr Mbuzi’s affidavit filed on 2 October.  Neither in his affidavit nor in his written or oral submissions did Mr Mbuzi reveal the removal order which had been made by Ms Hall.  I am prepared to give him the benefit of the doubt and assume that he was not attempting to mislead this court deliberately; but he was certainly reckless with his words.”^[68]

83. Despite all of this and the order of the Court of Appeal not disturbing the order made by White J, the applicant persists in asserting that the Directors were not removed as parties, and that they remain as parties to the application for judicial review notwithstanding the orders of White J and the Court of Appeal. His persistence in misconceived arguments that have been rejected, and his accusations that lawyers have lied to the court about the status of the Directors in these proceedings, are vexatious.

84. The applicant persists in submissions that the costs assessor failed to file the costs certificate, when the evidence and the Court’s record show that he caused this to be done on 1 February 2010. The applicant simply does not engage with submissions concerning the circumstances under which a costs assessor must give reasons pursuant to rule 738. This includes AAMI’s submission that even if he did not receive the costs certificate under cover of Mr Bloom’s letter of 29 January 2009, he received it when he received Mr Bloom’s affidavit, and that his request for reasons was too late. The application that was dismissed by Alan Wilson J was pursued in the face of correspondence that pointed out why it was misconceived. The applicant persists in submissions about rule 738 that have been determined against him, and which are without a proper basis.

85. I conclude that the applicant has adopted a vexatious mode of conducting the litigation. This conclusion does not rest on his general lack of success in bringing or resisting interlocutory applications and associated applications for leave to appeal: his only success seemingly being not having the application for judicial review summarily dismissed against AAMI. It rests on the vexatious nature of the applications that he has brought, his advancing arguments that lack a proper foundation, his persistence in unfounded arguments that have been determined against him, his lodging of applications for leave to appeal that have no reasonable prospect of success and the inclusion in affidavits and submissions of scandalous allegations. This course of conduct has delayed the resolution of the judicial review proceeding, and generated substantial costs. It has been harassing and vexatious to the other parties to applications, not to mention their lawyers who have been the subject of many ill-founded accusations of having misled the court.

86. My conclusion that the applicant has adopted a vexatious mode of conducting the litigation brings this case within an exception to the basic rule that a natural person who sues will not be ordered to give security for costs.

87. I find it unnecessary to reach a conclusion about the motivation of the applicant in conducting the litigation in the manner that he has. He is an obviously intelligent man, with experience in litigation. I have regard to character references. His zeal in pursuing this litigation is obvious. However, his persistence in arguments that have been dismissed and which lack a proper foundation suggests that he simply will not accept decisions that do not accord with his views, and that his intent is to harass the other parties until they concede the correctness of his view. If the applicant does not know that his arguments are without merit, then he is reckless as to their lack of merit. Whatever the applicant’s motivation in conducting the proceeding as he has, the proceeding has been conducted by him in an harassing and vexatious manner.

88. The other parties have expended substantial costs in defending vexatious applications or in bringing applications to protect themselves from further vexation. The costs incurred by them may not be recovered. The likelihood is that they will not be. Resources that might have been devoted to defending a relatively simple judicial review application that focused on two aspects of the first respondent’s conduct of a small claims proceeding have been spent on applications in this court and applications for leave to appeal from decisions that went against the applicant.

89. The risk that the applicant might not be able to pay a cost order that was made against him at the conclusion of the judicial review proceeding was a risk that AAMI was required by the law to accept so that the applicant might have his day in court. But the applicant has had many days in court in these proceedings, without advancing the matter to a hearing of the substantive application. The principle of access to justice does not require AAMI to bear the costs of those many days in court. The applicant’s vexatious conduct of the proceedings has required AAMI to expend resources that it should not have been required to incur. The costs orders made in its favour are unpaid.

90. In the circumstances, I consider that the interests of justice and the justice of the case require the applicant to provide security for AAMI’s costs in relation to the judicial review proceedings.

91. The applicant did not disclose whether he has the capacity to borrow against equity in his home, or sources of credit. He denied that he had declared himself to be impecunious, but gave no indication of his capacity to meet an order for security.

92. An experienced costs assessor, Mr Garrett, was asked by AAMI’s solicitors to provide an estimate of its future costs in relation to the application for judicial review, assuming that the hearing of the application would occupy one day. Mr Garrett assessed AAMI’s likely costs of opposing the judicial review application, commencing with the directions hearing on 15 September 2009, at $14,873.30. He also estimated AAMI’s costs in relation to the application for leave to appeal against the orders of Alan Wilson J at $11,375.^[69]  Mr Garrett has previously provided a short form assessment of the orders for costs that were made on 24 December 2009 and 19 February 2010 in the amounts of $14,399.93 and $6,612.50 respectively.

93. The applicant did not address the quantum of costs sought or address Mr Garrett’s estimate of the expected costs of AAMI in respect of the future conduct of the judicial review application, or its costs in responding to the application for leave to appeal against the decision of Alan Wilson J.  I accept Mr Garrett’s evidence and consider that he has made a reasonable estimate of AAMI’s expected costs, assessed on a standard basis.

94. The applicant noted that under s 49 of the Judicial Review Act the court is required to consider the financial position of the parties.^[70]  He points to the resources of AAMI (which is assumed to have paid for the legal costs of the Directors) and asks:

“Should an individual be denied access to justice on (the) ground of having less money than a multi-million dollar corporate entity?”

95. The making of an order for security for costs may have the effect of preventing the applicant from prosecuting his claim to a final hearing. If it does then that consequence will be due in part to the applicant’s failure to make disclosure of his financial circumstances. It will also be due to the vexatious manner in which the applicant has conducted the litigation, and the need to protect the opposing party from the consequences of such vexation. The financial capacity of AAMI does not disentitle it to an order for security for costs. If AAMI is unable to recover existing and future costs orders from the applicant, then presumably these costs will be passed on to its consumers, namely policyholders in the form of increased premiums, or diminish the profits that are available for distribution to its shareholders as dividends.

96. It should be recalled that AAMI, whilst protecting its own interests in respect of a small claims tribunal hearing in which it succeeded in resisting the applicant’s claim for $3,276, is a party to the proceeding in which the first respondent, in accordance with normal practice, abides the order of the Court and plays no active role. AAMI is the party that acts as contradictor of the applicant’s claims that the first respondent should have disqualified herself and granted an adjournment in the proceeding before the Tribunal. Whilst White J did not summarily dismiss the proceeding, her Honour did not have the benefit of the transcript of the hearing to ascertain whether the applicant’s claims about the conduct of the proceeding were reflected in the transcript. I am not in a position to predict what further evidence might be put before a final hearing of the application for judicial review. As presently informed, there is a reasonable prospect that the applicant’s judicial review proceeding will be dismissed, or no relief granted as a matter of discretion.^[71]

97. The transcript of the Small Claims Tribunal that is before me,^[72] but which was not before White J, does not support the applicant’s claim that the first respondent should have disqualified herself for apprehended bias on the ground that she knew two of the respondents.^[73]  The transcript records that the first respondent disclosed that she knew Mr Kriewaldt when each of them was a student “long ago”, and had had no association with him or seen him since.  The first respondent also mentioned that she recognized the name Cherrel Hirst, thought that she was “a director of a hospital or something” and did not know her.  The first respondent declined the applicant’s request to disqualify herself.  Her long-past association with Mr Kriewaldt as a student and her lack of any association with any other director provided no proper basis to disqualify herself.  On the material before me the applicant’s prospects of succeeding in his judicial review application on the grounds of apprehended bias and conflict of interest are very poor.

98. The transcript of the Small Claims Tribunal also records discussion about relevant policy wordings, and records that a copy of a policy wording relied upon by AAMI was shown to the applicant. Discussion followed about the policy documentation upon which the applicant relied. He asked for an adjournment to bring it to the hearing. The applicant was asked by the respondent to put his case, and he did so, describing his case as “very simple”. The applicant and AAMI’s representative presented their respective cases and the first respondent found in AAMI’s favour. The material before me does not permit me to reach a conclusion about why (if this be the case) the applicant did not have at the tribunal hearing the policy documents upon which AAMI relied, whether in the circumstances he had a proper basis to seek an adjournment from the tribunal on 11 June 2009 to another day and what his prospects are of establishing a denial of natural justice or an error of law by the tribunal for not allowing him an adjournment. If the applicant fails to establish these grounds for judicial review, then he may be ordered to pay AAMI’s costs on the principle that ordinarily costs should follow the event.^[74]

99. AAMI has a capacity to absorb costs that it is unable to recover from the applicant pursuant to costs orders made in its favour. But the fact that a respondent to a proceeding of the present kind has the financial capacity to meet unrecoverable costs is not a sufficient reason to decline an order for security for costs.

100. Not all respondents to small claim proceedings are large corporations. An individual or business that succeeds in resisting such a claim may become the subject of a judicial review proceeding that alleges a denial of natural justice. The Small Claims Tribunal, like its successor, the Queensland Civil and Administrative Tribunal, must act in a way that is fair, economical, informal and quick. Some claimants may wrongly perceive that a tribunal has denied them natural justice when the tribunal has acted with the degree of expedition and informality that the law requires and which is appropriate to such a tribunal. Being made a respondent to a judicial review application brought in the Supreme Court by an aggrieved party before such a tribunal may be one of life’s hazards, along with the risk that the applicant for judicial review might not be able to satisfy the Court’s order as to costs. The principle of access to justice may require a respondent to such judicial review proceedings to carry that risk. The principle of access to justice does not require respondents to carry the additional risk of not being able to recover the additional costs that are generated by the vexatious conduct of proceedings. This applies to respondents both big and small.

101. Persons of modest means, such as the applicant, should exercise care in the manner in which they bring and resist interlocutory applications and related applications for leave to appeal, lest adverse costs orders made as a result of the vexatious conduct of litigation bring the case within the exception to the general rule that a natural person who sues will not be ordered to give security for costs.

102. If the applicant fails to establish an entitlement to relief in the judicial review proceeding, then there is a reasonable prospect that he will be ordered to pay AAMI’s costs of and incidental to the proceedings, in addition to the costs that he already has been ordered to pay.

Conclusion – security for costs of judicial review applications

103. The applicant has not conceded that he is impecunious. But I have found on the basis of the material concerning his financial circumstances that AAMI has filed that there is reason to believe that he will not be able to pay costs orders made against him. The applicant has conducted this litigation in a vexatious manner. In circumstances in which there is reason to believe that the applicant will not be able to pay costs orders made against him, and in which his vexatious conduct of the litigation has significantly increased AAMI’s costs of responding to the proceeding, the interests of justice require an order for security for costs.

104. The amount of security ordered should be in an amount that does not unnecessarily stultify the proceeding. Any prediction that the proceeding will be readied for final hearing and occupy a relatively short hearing involves the triumph of hope over experience. Still, I will determine the quantum of security on that assumption. I consider that an appropriate amount of security for costs in respect of the application for judicial review is in an amount that is approximately one half of the estimate of AAMI’s standard costs.  I will order that the applicant provide security for the costs of the second respondent in a form satisfactory to the Registrar in relation to the application for judicial review (No. 6243 of 2009) in the sum of $7,500.00.

Security for Costs of the pending application for leave to appeal

105. Under r 772 an application for security for the costs of an appeal may be made to the Court of Appeal or the Court that made the decision appealed from. I respectfully adopt the principles stated by Wilson J in Jenkins v Martin^[75] concerning the discretion to order security under the rule.  Sub-rule 772(3) provides that the order must set the amount of security that must be given and the time within it must be given.

106. The proceeding that the applicant has filed in the Court of Appeal is in respect of a decision in relation to the assessment of costs. The applicant lost his application on the merits, and I consider that he has poor prospects of success in his proposed appeal. In Natcraft Pty Ltd v Det Norske Veritas^[76] Davies JA stated that:

“an impecunious plaintiff who has lost at trial on the merits will have greater difficulty in relying on apparent merits as a factor against the making of an order for security for costs the effect of which might stifle an appeal than would have been the case in respect of a similar reliance in opposition to an application for security for costs before trial.”

A similar consideration arises in respect of the fact that the applicant lost the application on the merits.  It is important that applications for security are not used as a means to strike out applications for leave to appeal that have poor prospects of success, or as the equivalent of an application for summary judgment.^[77]  I do not consider that this is the case in the present application for security for costs pursuant to r 772.  The application for leave to appeal is consistent with the applicant’s general conduct of the litigation in which he simply refuses to accept adverse decisions.  There are reasons to believe that the respondents to that application will not be able to recover costs ordered in their favour in the event that the application is dismissed.  I consider that the interests of justice in the case require him to provide security for costs in respect of an application for leave to appeal that has poor prospects.

107. I adopt the approach that it is inappropriate for an impecunious appellant, or an appellant with limited means, to be required to provide a greater security than is absolutely necessary.^[78]  I accept Mr Garrett’s estimate of $11,375 as a reasonable estimate of the costs of responding to the application for leave to appeal.

108. I will order that the applicant provide security for costs in an amount that is slightly less one half of the estimate. I order that the applicant provide security for costs in the amount of $5,500. The security should be given within 21 days. Pending the provision of such security the application for leave to appeal should be stayed.

Conclusion and orders

109. Each application has succeeded. Costs should follow the event.

110. The orders will be:

1. Pursuant to r 389A of the Uniform Civil Procedure Rules 1999, the applicant not file any further application in relation to the application for judicial review (No. 6243 of 2009), including an appeal in relation to the proceeding, without the leave of the Court, and in the case of an appeal from these orders, without the leave of the Court of Appeal.
2. The applicant provide security for the costs of the second respondent in relation to the application for judicial review (No. 6243 of 2009) in the sum of $7,500 in a form approved by the Registrar.
3. Such security be provided within 21 days of the date of this order.
4. Until the security is given a party to the proceeding not take a further step in the proceeding without the leave of the Court.
5. If the security is not given as required by paragraph 2 of this order, the proceeding be stayed so far as it concerns steps to be taken by the applicant.
6. If the security is not given as required by paragraph 2 of this order the second respondent may apply to dismiss all or part of the proceeding. 
7. Pursuant to r 772 of the Uniform Civil Procedure Rules 1999 the applicant provide security for the prosecution of his application for leave to appeal to the Court of Appeal and of any appeal associated with a grant of leave (Court of Appeal No. 5886 of 2010) (“the appeal”) in the sum of $5,500 in a form approved by the Registrar. 
8. Such security be provided within 21 days of the date of this order.
9. Until the security is given a party to the appeal not take a further step in the proceeding without the leave of the Court of Appeal.
10. If the security is not given as required by paragraph 7 of this order, the appeal be stayed so far as it concerns steps to be taken by the applicant, unless the Court of Appeal otherwise orders.
11. The applicant in the application for judicial review pay the costs of the second respondent and the costs of Clifford Rowe Chuter, Cherrel Hirst, Martin Douglas Eberlain Kriewaldt and Christopher Stilton of and incidental to the application filed 16 July 2010, as amended on 20 July 2010, to be assessed on the standard basis.
12. The applicants in that application are not required to pay the costs of and resulting from the amendment made pursuant to r 378.