Rowe v Emmanuel College[2015] QSC 45

SUPREME COURT OF QUEENSLAND

ANN LYONS J:

The current application

1. Since June 2013, the applicant has been involved in a number of proceedings in this Court involving the respondent, Emmanuel College (“the College”), and his former wife. There have also been a number of applications in the Queensland Civil and Administrative Tribunal (“QCAT”) as well as the Federal Court, the Federal Circuit Court and the Magistrates Court. Pursuant to undertakings he has previously given to this Court, the applicant is required to comply with the provisions of the Vexatious Proceedings Act 2005 (Qld) (“VPA”) before he can institute any further proceedings in this Court.
2. On 19 January 2015, Mr Rowe filed an application seeking Orders pursuant to s 11 of the VPA to serve the College with a copy of his proposed application which seeks “leave to file an application to set aside” the following Orders and Undertakings:
   1. the Order of Dalton J of 21 November 2013 as extended by Byrne SJA on 26 and 27 November 2013;
   2. the Undertakings entered by the Registrar on 17 December 2013; and
   3. Orders 1 and 3 of Atkinson J made on 29 September 2014.

History

3. In order to understand the current application, it is necessary to outline some of the history of the litigation.^[1] The applicant Mr Rowe and his ex-wife Alison Schultz are the parents of a young child who attends Emmanuel College. A dispute arose between Mr Rowe and the College in 2013 about his daughter’s enrolment in the College and Mr Rowe commenced proceedings against the school in a number of jurisdictions which have included the following:
   1. a claim for damages in the Federal Circuit Court claiming $755,000 in damages and a civil penalty of $1 million because he was allegedly misled or deceived by the College about an administrative charge for providing duplicate copies of material to separated parents; and
   2. a claim in QCAT, for damages from the College for refusing to cancel his daughter’s enrolment.
4. On 26 June 2013, the College commenced proceedings against Mr Rowe in this Court claiming various forms of relief including injunctions to restrain the applicant from publishing objectionable material about the College, and to restrain him from attending the College. The College also sought orders that Mr Rowe be declared a vexatious litigant pursuant to the VPA. An amended application was subsequently filed on 10 July 2013. 
5. On 28 June 2013, Margaret Wilson J made interim orders adjourning the College’s application and granted injunctions restraining Mr Rowe essentially from publishing material in relation to the College, communicating with the College and from serving originating processes on the College.
6. On 1 July 2013, Mr Rowe appealed to the Court of Appeal in relation to two orders made on 28 June 2013, and also commenced proceedings claiming damages against the College and its board for $3.55 million. 
7. On 15 July 2013, Mr Rowe gave a number of undertakings to the Court including an undertaking that he would not institute proceedings in Queensland against the College or any director or employee without bringing an application for leave to institute proceedings as if he were subject to a vexatious proceeding under the VPA.
8. On 31 October 2013, the Court of Appeal struck out Mr Rowe’s appeal for the following reasons:^[2]

“The appellant has appealed against order 2 of orders made in the trial division on the 28th of June 2013. On that occasion, the appellant had applied for an adjournment, and order 2 was intended to impose conditions on which the learned primary Judge was prepared to grant it. Obviously, the appellant has had the benefit of that adjournment granted in those circumstances. Order 2 was discharged a short time later by an order of another Judge in the trial division, made on the 15th of July 2013. On that occasion, the appellant gave undertakings, one of which was related to a matter the subject of order 2, though substantially narrower in scope than the order.

The appellant has been unable to identify any legitimate purpose for pursuing his appeal. The ground advanced with most force was that it was relevant to the question of costs. Costs were reserved on the 28th of June 2013. No doubt, if they are ever determined, they will be determined in light of all the circumstances; and the fact that a condition was imposed on the adjournment is unlikely to be decisive, particularly when the condition remained in force for a relatively short time. There can be little doubt that the appeal has caused the respondents to incur costs. The reasons given in the trial division on the 15th of July recorded the appellant’s inability to meet orders for costs. Absent some better explanation than has been advanced by the appellant, it is not difficult to conclude that a purpose of the appeal is to harass the respondents, against whom he has also commenced other proceedings.

It might be noted that, on the 15th of July, the proceedings were adjourned, one of the undertakings then given by the appellant being that he would not institute proceedings against the first respondent, with one exception, unless he first applied for leave as if he were the subject of an order made under the Vexatious Proceedings Act 2005.

The heading to the appellant’s outline of argument refers to bias, a matter not raised in his grounds of appeal, nor supported by any argument in his outline. The appellant is a solicitor. He is no doubt aware of the significance of an allegation of bias against a judicial officer. The reference to bias seems to me indicative of the cavalier attitude taken by the appellant to the conduct of the appeal.

One ground of appeal is that the appellant was denied procedural fairness in the proceedings at first instance. The allegation is repeated in the appellant’s very brief outline of argument. A reading of the transcript demonstrates that the allegation is baseless.

In my view, it is clear that the appeal has been pursued vexatiously – see Mudie v Gainriver Pty Ltd (No 2) [2003] 2 Qd R 271 at paragraph 35, Re Cameron [1996] 2 Qd R 218 at 220. It should be struck out.”

9. On 13 November 2013, Mr Rowe entered into a Deed of Settlement with Emmanuel College and Ms Schultz with the aim of bringing to an end all of the litigation between the parties. In Paragraph 3 of that Deed, Mr Rowe gave a permanent and irrevocable undertaking “To never again at any time publish, cause to be published, encourage, request or enable to be published…by any means whatsoever any comment about Emmanuel College or any of its officers or employees”.
10. On 21 November 2013, the College filed an application seeking interim relief against Mr Rowe, and Dalton J granted an interim injunction restraining Mr Rowe from publishing any comment about Emmanuel College or any of its officers, employees or agents.  It also required the solicitors for Emmanuel College to file by 22 November 2013 an application seeking orders to enforce the Deed of Settlement dated 13 November 2013. 
11. The application was listed for hearing on the Civil List on 26 November 2013, and on 27 November 2013 Byrne SJA made orders on the application filed by the College and on an oral application made by Mr Rowe. Those orders were that the claim by Mr Rowe to set aside the Deed of Settlement signed on 13 November 2013 was dismissed, and that Mr Rowe was to pay the costs of the College and Ms Schultz of and incidental to the trial on 26 and 27 November 2013. It was further ordered that the Deed of Settlement signed on 13 November 2013 “be specifically performed and carried into effect”. Mr Rowe was also required to sign a form of consent, and consent to the dismissal of matters before QCAT. 
12. It was ordered that if Mr Rowe failed to comply in that respect, then the Registrar was authorised to make, execute and furnish to the solicitors for the College all documents Mr Rowe failed to execute.  The orders and injunctions granted by Dalton J on 21 November 2013 were then extended by Byrne SJA on 26 and 27 November 2013 until such time as the respondent had complied with the orders. The Registrar signed an Order pursuant to the Order of Byrne SJA of 27 November 2013 on 17 December 2013.
13. On 18 June 2014, Emmanuel College made an application to the Court alleging that Mr Rowe had breached that undertaking and sought an order that he be punished for his contempt of court.
14. On 29 September 2014, Atkinson J held as follows:^[3]

“Conclusion

[72] I am satisfied beyond reasonable doubt that Mr Rowe committed contempt by breaching:

(1)the order of Dalton J made on 21 November 2013 in proceeding No. BS 5853 of 2013 ("the principal proceeding") as extended by order of Byrne SJA on 26 November 2013 and further extended on 27 November 2013; and

(2)the undertakings recorded in the order entered by the Registrar on 17 December 2013 in the principal proceeding pursuant to the order of Byrne SJA of 27 November 2013.

[73]I am satisfied that he committed those contempts as particularised in particulars 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13.

Punishment

[74] Having been satisfied that Mr Rowe has committed contempt of court, I turn now to the question of punishment.

[75] Notwithstanding the obvious emotional turmoil brought about by the end of his marriage and his bitter disputes with his daughter's school, Mr Rowe was in a position to know that he ought not do what he was doing. He was a practising solicitor with expertise in information technology which enabled him to post the material and hide to a certain extent what he was doing. As a solicitor he was more than ordinarily aware of the need to comply with orders made by and undertakings given to the court. His explanation of why he initially formed the opinion that he did not have to comply with court orders lacked any credibility.

[76] All of the posts were damaging to the applicant but some were particularly offensive and the offensiveness of the posts appeared to escalate. Mr Rowe was extremely persistent in his behaviour and continued to post to the internet despite orders made to the contrary. It appears that only the fear of imprisonment as a result of remarks made by Daubney J on the day this contempt application was first set down for hearing on 22 July 2014 caused him to remove those postings from the internet. The breach of court orders and undertakings was wilful and deliberate and not casual, incidental or unintentional.

[77] The purpose of penalty in a case such as this is both to punish the contemnor and to deter him from future offending behaviour. In order to achieve these objectives, I sentence Chad Everett Rowe to 12 months imprisonment wholly suspended for a period of three years. Any further publications by Mr Rowe in breach of the orders and undertakings during the period of suspension would lead to his having to serve the 12 months period of imprisonment in actual custody.

[78]He should be ordered to pay the applicant's costs on an indemnity basis.”

15. Accordingly, Atkinson J was satisfied that Mr Rowe had committed contempt of court by publishing or causing to be published a number of internet postings which breached orders of the Court. I note that Mr Rowe had admitted the conduct complained of in relation to Particular 13 between 21 November 2013 and 5 February 2014.
16. Mr Rowe was sentenced to 12 months’ imprisonment wholly suspended for a period of three years and ordered to pay the College’s costs on an indemnity basis.
17. Whilst the current application was filed on 19 January 2015, Mr Rowe has previously brought two applications which are similar to the current application. In Rowe v Emmanuel College,^[4] Mr Rowe sought leave to file an application to appeal to the Court of Appeal to set aside orders 1 and 3 made by Atkinson J on 29 September 2014, and in Rowe v Emmanuel College & Anor^[5] Mr Rowe sought leave to file an application to set aside the Orders of Dalton J and Byrne SJA and the Undertakings entered on 17 December 2013. Those applications were dismissed by Martin J on 16 January 2015^[6] on the basis that Mr Rowe had not complied with the requirements of the VPA.

The nature of the current application

18. It is clear that Mr Rowe has not been declared a vexatious litigant under the VPA, but by virtue of his undertaking, he is required to make an application to this Court as if he were a vexatious litigant as declared by the VPA. Mr Rowe now seeks leave, pursuant to an application filed on 19 January 2015, to institute proceedings against Emmanuel College pursuant to s 11 of the VPA.
19. Orders are also sought pursuant to s 13(1)(a) of the VPA for leave to serve the respondents with a copy of the application, affidavit and notice that the respondents are entitled to appear and be heard on the application. 

Section 11 of the VPA

20. Section 11 of the VPA sets out the relevant provisions in relation to an application for leave to institute proceedings as follows:

“11 Application 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; 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.”

The affidavit in support of the application

21. In his affidavit in support of the current applications for leave, the applicant sets out as required pursuant to s 11 of the VPA the other applications for leave that he has filed. He swears as follow:

“3.Under section 11(3)(a), I have made the following other applications for leave:

a.8 August 2013 – Application for leave to appeal decision of the Queensland Civil and Administrative Tribunal dated 29 July 2013.

b.22 August 2013 – Application for leave to appeal a decision of the Queensland Civil and Administrative Tribunal dated 7 August 2013.

c.29 August 2013 – Application for leave to file an application to appeal a decision of the Supreme Court dated 20 August 2013.

d.6 September 2013 – Application for leave to file an application to appeal decision of the Supreme Court dated 27 August 2013.

e.4 December 2013 – Application for leave to file an application to appeal a decision of the Supreme Court dated 27 November 2013.

f.19 December 2013 – Oral Application for leave to appeal.

g.8 October 2014 – Application for leave to appeal – Decision of Atkinson J 29 September 2014 and in relation to Deed of Settlement dated 13 September 2013.”

22. He also swears that, under section 11(3)(b), he has commenced the following proceedings:

“a.Domestic Violence Application – 28 May 2011 – Rowe & Rowe;

b.Federal Magistrates Court – Application for Parenting Orders – 27 May 2011 (still underway and now transferred to Family Court) –Rowe & Rowe – (includes interim parenting orders sought for urgent parenting matters);

c.Domestic Violence Appeal – District Court – November 2011 – Settled by Consent – Rowe & Rowe;

d.Child Support Stay Application – November 2012 – Rowe & Rowe;

e.Child Support Appeal from SSAT – Federal Circuit Court – December 2012 – Rowe & Rowe – (includes previous SSAT decision);

f.Queensland Civil and Administrative Tribunal (“QCAT”) – Rowe & Emmanuel College;

g.Full Court Appeal – Family Court – Child Support Stay Application – Heard on May 2013 – Matter conceded by parties – Appeal allowed – Rowe & Rowe & Child Support Registrar;

h.Full Court Appeal – Family Court – Heard May 2013 – Decision of Magistrate Howard declaring me a vexatious litigant overturned;

i.Full Court Appeal – Family Court – May 2013 – Child Support – (appeal from Federal Circuit Court);

j.Magistrates Court – May 2013 – Rowe & Emmanuel College – Defamation;

k.Domestic Violence Applications (x2) – June 2013 – Rowe & Rowe;

l.QCAT Appeal – Rowe & Emmanuel College;

m.Federal Court Appeal Rowe & Emmanuel College;

n.Court of Appeal – Rowe & Emmanuel College – July 2013;

o.Federal Circuit Court – Rowe & Emmanuel College – November 2013;

p.Federal Circuit Court – Rowe & Emmanuel College – January 2014;

q.Domestic Violence Application – Rowe & Mountford – January 2014;

r.Full Court Appeal – Family Court (x2) – Rowe & Schultz; Rowe & Mountford;

s.Special Leave to High Court – Rowe & Schultz – July 2014;

t.Federal Circuit Court – Rowe & Trustee in Bankruptcy – July 2014;

u.QCAT – Rowe & Mountford – September 2014;

v.District Court Appeal – Rowe & Mountford – September 2014;

w.Full Court Appeal – Family Court – Rowe & Schultz, Rowe & Mountford – September 2014;

x.SSAT Appeal from decision of the Child Support Registrar dated October 2014;

y.Federal Circuit Court Appeal from decision of the SSAT dated October 2014;

z.Federal Circuit Court – Rowe v Official Trustee in Bankruptcy (Mint Property) July 2014;”

23. As previously noted, two separate applications had previously been filed by Mr Rowe.  Those applications were heard before Martin J on 22 October 2014.  In Rowe v Emmanuel College,^[7] Martin J gave reasons in relation to Mr Rowe’s application for leave to file an appeal to the Court of Appeal to set aside orders made by Atkinson J, and in Rowe v Emmanuel College & Anor^[8] Martin J gave reasons in relation to the Deed of Settlement. Both applications were dismissed on the basis that there had not been compliance with s 11(3) of the VPA.  His Honour’s reasons for dismissing both applications were as follows:

“[12]On 29 August 2013 Mr Rowe was given leave to file an application in the following form:

‘Take notice that the respondent [Mr Rowe] is applying to the Court for the following orders:

1. Leave to file an appeal to the Court of Appeal in relation to a decision of the Supreme Court dated 20 August 2013.

2. Alternatively, leave to file an appeal to the Court of Appeal in relation to a decision of the Queensland Civil and Administrative Tribunal dated 29 July 2013.

3. That the application be heard on an ex parte basis without any need for an appearance by the applicant or second applicant.’

[13]On 6 September 2013 Mr Rowe filed an application in the following form:

‘Take notice that the respondent [Mr Rowe] is applying to the Court for the following orders:

1. Leave to file an appeal to the Court of Appeal in relation to a decision of the Supreme Court dated 27 August 2013.

2. That the application be heard on an ex parte basis without any need for an appearance by the applicant or second applicant.’

[14]On 4 December 2013 Mr Rowe filed an application in which he sought:

‘Leave to file a claim and/or application to set aside the orders of this court dated 27 November 2013.’

[15]The Court file for BS5853 of 2013 also reveals that Mr Rowe made an oral application on 19 December 2013 without having filed any application. The submissions which were filed were similar to those relied upon in this matter. That application was dismissed.

[16]In each of those applications the proposed respondents were Emmanuel College and Ms Schultz.

[17] The failure by Mr Rowe to include references to the four applications made to this Court means that his affidavit relied upon in the instant application does not substantially comply with s 11(3).  It follows that the application as against Emmanuel College must be dismissed.”^[9]

24. When Martin J delivered his reasons on 16 January 2015 dismissing the applications, Mr Rowe immediately filed another application on 19 January 2015. This application is similar to the applications that were before Martin J but they are not identical because in relation to the application with respect to the Orders of Atkinson J of 29 September 2014 he no longer seeks leave to file an application to appeal to the Court of Appeal but rather seeks to have Orders 1 and 3 “set aside”. That matter was heard before Douglas J on 28 January 2015 but was adjourned until today without further orders being made.
25. On my reading of the material, it would seem that Mr Rowe has now complied with the requirements of the VPA as set out in ss 11(3)(a) and (b) to the extent that he has now listed all occasions on which he has applied for leave or instituted proceedings in Australia. 
26. Section 11(3)(c) of the VPA, however, requires that the applicant disclose all facts which are material to the application for leave to institute a proceeding. 

Has Mr Rowe disclosed all facts which are material to the application for leave to institute proceedings?

27. It would seem from my reading of Mr Rowe’s submissions that he seeks leave essentially to agitate two issues in the proposed proceedings. The first relates to the Orders and Undertakings made in 2013 (“the 2013 Orders”) which relate to the Deed of Settlement, and the second issue relates to the decision of Atkinson J of 29 September 2014 (“the 2014 Orders”).
28. Mr Rowe is a solicitor and he has in other applications sought leave to file applications to appeal to the Court of Appeal.  I should make it clear that they are not, however, the orders he now seeks. The word ‘appeal’ does not appear anywhere on the application in relation to the 2013 Orders or the 2014 Orders. It would seem manifestly clear from the wording of his current application that he does not actually wish to file an appeal to the Court of Appeal in relation to the making of any of those Orders, but rather he wishes to institute proceedings in the trial division to “set aside” the 2013 Orders of Dalton J, Byrne SJA and the 2014 Orders of Atkinson J. In relation to the 2013 Orders, he wishes to institute a proceeding against the College on the basis that it has failed in its obligations under the Deed of Settlement, and argue that the Deed of Settlement has been terminated. In relation to the 2014 Orders, I note that not only does Mr Rowe not seek leave to file an application to appeal to the Court of Appeal, but in seeking to only have Orders 1and 3 set aside, he is not arguing about the sentence actually imposed.
29. In relation to the 2013 Orders, Mr Rowe now seeks leave to institute proceedings against the College in which he says it has failed to comply with an obligation it has under the Deed of Settlement to make available to him copies of all relevant documents and information pertaining to his daughter.  He argues that those failures constitute a breach of the Deed of Settlement and that on 20 November 2013 he sent a “notice to remedy breach” to the College, and on 28 November 2013 he purported to terminate the Deed of Settlement for serious breach of the Deed of Settlement.  Accordingly, with respect to that aspect of the application, Mr Rowe wishes to commence a matter in which he would seek an order that the order of Dalton J of 21 November 2013 in BS 5853 of 2013, as extended by Byrne SJA on 26 November 2013 and further extended on 27 November 2013, be set aside and that the undertakings recorded in the order entered by the Registrar on 17 December 2013 in that proceeding be set aside. 
30. In relation to that aspect of his current application, Mr Rowe is arguing that Emmanuel College has failed, refused and/or neglected to comply with the requirements under the Deed of Settlement.  He argues that he has given the College sufficient notice to comply with the Deed of Settlement and now claims termination of the Deed of Settlement on the basis that there has been a breach of an essential term of the agreement by the College, or alternatively, termination on the basis that there has been repudiation of the Deed of Settlement by the first respondent.  He argues that the Deed of Settlement is an essential part of the agreement, and while time was not specified in the clause, he argues it was made of the essence when the notice to remedy breach was served on the first respondent.
31. Mr Rowe also argues that the College has not complied with its obligations in cl 2 of the Deed of Settlement to any extent as at the time of making the application and to the current day, and does not intend to comply with its obligations under the Deed of Settlement.  Accordingly, the applicant seeks leave to have the matter determined by the Court.
32. It would seem clear that Mr Rowe is seeking now to re-agitate issues which were before the Court in 2013 and in his material in support of the application it would seem that he is relying on alleged breaches that occurred in 2013. Whilst Mr Rowe has set out in his affidavit all the occasions on which he has sought leave to institute proceedings and he has listed all the proceedings which he has instituted in any Court, he has not accurately reflected in his affidavit the history of this particular dispute with the College. An essential part of his dispute with the College in 2013 related to the provision of information to him about his daughter. It is the same dispute now. Those disputes were the subject of the Orders and Undertakings. I cannot discern any new information in his affidavit in support of his application for leave. Those matters were all on foot at the time the 2013 Orders were made and the Undertaking entered by the Registrar.
33. The second basis of Mr Rowe’s current application relates to the decision of Atkinson J of 29 September 2014 finding him guilty of contempt. He argues that he was denied procedural fairness in relation to the proceedings, and that a finding of contempt of court requires wilful disobedience of an order or undertaking or order of a court and that the breach of a court order or undertaking will not constitute contempt unless it is wilful and not casual or accidental. 
34. Mr Rowe also argues that Atkinson J neglected to address the issue of wilfulness of his actions in coming to her conclusion, and that her Honour failed to take into account his psychiatric medical evidence and, in particular, his state of mind before determining whether his actions were wilful.  He also argues that there were inadequate reasons for her Honour coming to the determinations she did.  In particular, he argues that there was a finding of dishonesty without sufficient reasons as to how that determination was made.  In particular, he argues that the case against him was wholly circumstantial and that there was simply insufficient evidence for a court to draw a conclusion beyond reasonable doubt that he had committed the acts complained of.
35. What Mr Rowe does not disclose in his affidavit in support of his application is the fact that in 2014 he conceded that he was in breach of the Orders of the Court and his Undertaking as follows:^[10]

“[14] In his affidavit filed on 20 August 2014 in this proceeding, Mr Rowe conceded that having reviewed the affidavit material that had been filed it could be demonstrated that he was in contravention of the orders made by Byrne SJA on 26 November 2013 insofar as his conduct was accepted up and until his bankruptcy which occurred on 5 February 2014. He set out the reasons why he had engaged in that activity and apologised to the applicant and the court for those actions. In his oral evidence his concession was restricted to his publishing material on the website www.rowevemmanuelcollege.info. In submissions on his behalf this concession extended to publishing videos to a YouTube channel under his own name.

[15] Accordingly the conduct specified in paragraphs 12(a) and 13 of the particulars has been admitted for the period from 21 November 2013 until 5 February 2014. It was further admitted by the respondent that the offending publications did occur on the internet. The issue was therefore whether or not Mr Rowe was responsible for the behaviour set out in the particulars other than to the extent he has admitted.”

Should the current application be dismissed pursuant to s 12 of the VPA? 

36. Section 12 of the VPA is in the following terms:

“12Dismissing 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.”

37. Given the failures I have already identified, I am not satisfied that Mr Rowe has disclosed all facts material to the application and there would be a strong basis to dismiss the application pursuant to s 12(1)(a) of the VPA on the basis that s 11(3) had not been substantially complied with. Even if there had been substantial compliance with s (11)(3) of the VPA, I am satisfied that I should dismiss the current application as a vexatious proceeding pursuant to s 12(1)(b) of the VPA. 
38. In relation to s 12(1)(b), the Schedule (Dictionary) of the VPA defines “vexatious proceeding” as follows:

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

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

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

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

39. Justice Walsh observed in Hutchinson v Bienvenu^[11] that the test whether proceedings are vexatious “is not simply a subjective one”.  In endorsing this view, Walsh J referred to what Ormerod LJ had said in Re Vernazza,^[12] which was that “the question is not whether [legal proceedings] have been instituted vexatiously but whether the legal proceedings are in fact vexatious”.  In Jones v Skyring,^[13] Toohey J observed that “the question [of whether legal proceedings are vexatious] is one for the court to decide on the facts; it is not decided by reference to whether the person against whom an order is sought is acting maliciously or in bad faith”.
40. In Re Cameron,^[14] Fitzgerald P discussed the principles in relation to a determination as to whether a declaration should be made that a person was vexatious. The same considerations have also been held to apply^[15] in relation to a determination under s 12(1)(b) of the VPA:

“..The broad test (for deciding whether proceedings are vexatious) potentially concerns such factors as the legitimacy or otherwise of the motives against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of litigation which lacks reasonable basis.”

41. In Mudie v Gainriver Pty Ltd (No 2),^[16] the Court referred to the Macquarie Dictionary definition of 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" defined as "1. causing vexation; vexing; annoying...”, and the Shorter Oxford English Dictionary definition as “of little or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds. 2  Lacking seriousness or sense; silly.” and “vexatious” as “causing or tending to cause vexation, annoyance, or distress; annoying, troublesome. 2. In law. Of an action; instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant.” The court concluded^[17] “Unquestionably, something much more than lack of success needs to be shown before a party's proceedings are frivolous or vexatious.”
42. It would seem from the affidavit sworn on 13 February 2015 that Mr Rowe first made the application for leave to institute a proceeding in relation to the decision of Atkinson J of 29 September 2014 very promptly on 8 October 2014. That application ultimately came before Martin J on 22 October 2014 as an application for leave to file an appeal to the Court of Appeal.  It is clear, therefore, that the application was made expeditiously and within nine days of the judgment being delivered and the sentence being imposed. I also note that Mr Rowe has not previously appealed the orders made on 29 September 2014. In the circumstances, there may have been good grounds to consider an application for leave to appeal if he had made such an application to this Court.
43. However, as I have previously noted, Mr Rowe (who is a solicitor) is not seeking leave to appeal to the Court of Appeal but asking to have those 2014 orders ‘set aside’. Whilst Mr Rowe has had a substantial penalty imposed upon him after a finding of contempt, it is significant in my view that he is not seeking to appeal the sentence imposed arguing that the sentence was excessive. Nor is he seeking to appeal the Orders made in 2013. He is asking for orders that the Orders and Undertakings be “set aside”.  As was noted in Re Skyring,^[18] an application in those terms is an attempt “to circumvent the appellate process by asking one judge of this court to overturn or set aside the decision of another in circumstances where no jurisdiction or power to do so exists.” It would seem to me that the application of 19 January 2015 in those terms is therefore misconceived and futile. 
44. To the extent that Mr Rowe meant to lodge an application to seek leave to commence an appeal to the Court of Appeal and to the extent that such an application is required in relation to the sentence imposed by Atkinson J, I consider that such an appeal would be futile in any event. Mr Rowe is essentially arguing that a finding of contempt was not open in circumstances where he actually conceded he had committed a contempt of the court. Having considered the careful and extensive reasons of her Honour in relation to the findings of contempt which comprise some 23 pages and 78 paragraphs, there is simply no basis for an argument that the reasons were inadequate or that he was not provided procedural fairness. The reasons reveal that Mr Rowe was represented by a very capable and experienced criminal barrister during his hearing for contempt.
45. In terms of Mr Rowe’s application to set aside the 2013 Orders and 2014 Orders, it is clear that the basis for the current litigation and most of the litigation to date is fundamentally based on Mr Rowe’s unhappiness that his daughter goes to this particular College and his belief that he is not being kept informed of her progress. That has been the stimulus for a barrage of inappropriate allegations against the College in a variety of forums and which ultimately led to him being sentenced for contempt of court. From my perusal of the history of the litigation, there is no doubt that the College must have spent an enormous amount of time and money engaged in litigation involving Mr Rowe.
46. I am satisfied that Mr Rowe has been making persistent attempts to use Court processes to circumvent the Orders and Undertakings which were made in 2013 so that the endless round of allegations and litigation could be brought to an end. I am satisfied that Mr Rowe is, by his current application, trying to circumvent the appellate process by asking one judge of this Court to set aside the decision of another judge in circumstances where there is no jurisdiction or power to do so. I am also satisfied that given the issues involved, it has been a waste of public resources to have judges of this Court involved in numerous applications which simply seek to re-agitate issues which have been fully determined in either 2013 or 2014. I am satisfied that the proceedings which are sought to be instituted would be used to harass and annoy the College yet again.
47. Section 11(5) of the VPA provides that the Court may dispose of the application by:

“(a)dismissing the application under s 12, or

(b)granting the application under s 13.”

48. I consider that, pursuant to s 12 of the VPA, the application should be dismissed.

ORDER

49. The application filed on 19 January 2015 is dismissed.