Crown Solicitor v Bird

The applicant made an application to set aside the order declaring him a vexatious litigant. The discrete issue was whether he needed to seek leave before he could bring that application. Ultimately, her Honour Brown J found that such an application – made pursuant to s 7 of the Vexatious Proceedings Act 2005 – is a “proceeding” within the meaning of s 10 and requires the Court to first give leave pursuant to s 13 of the Act.

Brown J

12 June 2019

Introduction

The respondent, Mr Bird, was declared a vexatious litigant by the Supreme Court under the Vexatious Litigants Act 1981 (“the 1981 Act”) in 2004. [1]. In 2018, he made an application under s 7 of the successor Act, the Vexatious Proceedings Act 2005 (“the 2005 Act”), to set aside the vexatious proceedings order against him. [2]. The issue for Brown J in the present case was whether Mr Bird needed to seek leave before he could apply for the vexatious proceedings order to be set aside, or whether he could make such an application without leave. [1].

Legislation

Section 7 of the 2005 Act relevantly provides that “[t]he Court may, by order, vary or set aside a vexatious proceedings order” on the application of the person the subject of the vexatious proceedings order. [5]. Section 10(1) provides:

“If the Court makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in Queensland—

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

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

The principal question for Brown J was whether the definition of “institute” and “proceeding” apply to an application under s 7 of the 2005 Act. [8]. The Act defines “institute” and “proceeding” broadly. [8].

Section 2(2)(b)(i)–(iii) of the 1981 Act excluded certain applications from the definition of “legal proceedings”, including applications to vary or revoke an order declaring a person a vexatious litigant. [9]. Accordingly, Mr Bird would not have required the Court’s leave to apply for revocation of his vexatious litigant declaration under the 1981 Act. [9].

Decision

Justice Brown noted that two competing constructions of the provisions of the 2005 Act were open. [14]. The first was that an application pursuant to s 7 of the 2005 Act by a person subject to a vexatious proceedings order is a “proceeding” within the meaning of s 10 and requires the Court to first give leave to institute a proceeding pursuant to s 13 of the Act. [14]. The second was that leave is not required as the definition of “proceeding” and the terms of s 10 do not apply to applications commenced under s 7. [14].

Her Honour considered the arguments for and against each construction and concluded that the proper construction was the first one, such that Mr Bird was required to obtain leave. [57]. Her Honour gave eight reasons for this conclusion. In summary form, they were:

(1) First, the definition of “proceeding” in the 2005 Act is a comprehensive one that would on a literal construction apply to an application under s 7. [58]. The literal construction is consistent with the remedial purpose of the legislation and consistent with providing access to the Courts through legal proceedings if the application is such that the Court is satisfied leave should be granted. [58].

(2) Secondly, the clear words of s 10 together with the broad definitions of “institute” and “proceeding” manifest an intention to remove the right to seek a variation or the setting aside of a vexatious proceedings order without first seeking leave. [59]. That is consistent with the overall purpose of the legislation. [59].

(3) Thirdly, the expansion of the definition of “proceeding” in the 2005 Act compared with the 1981 Act, combined with the retention of s 7 without removing it from the leave requirement, strongly suggest a legislative intention that an application under s 7 is not excluded from the word “proceeding” and s 10 of the 2005 Act. [60].

(4) Fourthly, while recognising that requiring leave infringes upon a fundamental common law right, the subject matter and context of a s 7 application do not otherwise indicate that the definition of “proceeding” should not apply. [61].

(5) Fifthly, while the Explanatory Notes expressly acknowledge that the right of a person to take legal action over a wrong is an essential common law right, the legislation is specifically directed at prohibiting or limiting the right of a person subject to a vexatious proceedings order to take or continue legal action. [62]. The construction favouring leave being required does not wholly take away that fundamental right, insofar as the 2005 Act provides safeguards for any person the subject of a vexatious proceedings order. [62].

(6) Sixthly, the fact that the definitions of “proceeding” and “institute” extend to an application to set aside or vary the order has at least been acknowledged by the Court of Appeal in Hambleton v Labaj [2011] QCA 17. [64].

(7) Seventhly, while s 7 is in Pt 2 of the 2005 Act, which may suggest it is not subject to the consequences of a vexatious proceedings order that are stipulated in Pt 3, its evident purpose is to ensure that the vexatious proceedings order is not regarded as a final order. [65].

(8) Eighthly, there is no ambiguity in the language of the statute, which is open to a narrower as opposed to a broader meaning. [66].

M J Hafeez-Baig