After more than 250 judgments over 23 years, a West Australian couple has been declared vexatious litigants.
In the Federal Court of Western Australia on 19 August, Justice John Snaden made vexatious proceedings orders under Section 37AO of the Federal Court of Australia Act 1976 (Cth) against the two, who he said had waged a “prolonged war” of litigation related to their purchase of a Perth petrol station in 2003.
In his 62-page judgment delivered on 19 August, Justice Snaden examined a sample of proceedings instigated by the now bankrupt couple – one of whom appeared by video from prison, where she is serving a sentence for fraud – saying they had “waged all manner of contests in this court”.
“The chronology that I have sketched thus far emerges from a review of the 97 judgments that this court has published since April 2016 in relation to proceedings brought by or (in a minority of cases) against (the couple),” he said.
“That is not a typographical error. Other (and apparently related) litigation has played and continues to play out in other jurisdictions, including the Supreme Court of Western Australia and the District Court of Western Australia.
“All told, it would appear that there are in the vicinity of 250 published judgments that stem, in one way or another, from what began as an unremarkable dispute about the purchase of a petrol station nearly a quarter of a century ago.”
Justice Snaden said there had been a “significant devotion of public resources over such a substantial period and in relation to what began as a single, vanilla controversy”, including appearances before at least 20 Federal Court judges.
He rejected the couple’s submissions that to assess the vexatiousness of proceedings, the court was required to consider the entire history of a litigant’s endeavours, and that it was confined to considering concluded matters and conclusions expressed by the judge who decided the matters.
“In the case of some litigants – and, as will be seen, (the couple) are firmly amongst them – the court might more easily complete the twelve labours of Hercules,” he said of the second submission.
“It cannot seriously be doubted that (the couple) are properly regarded as litigants of considerable persistence. To have been the subject of 97 judgments in this court alone over a little more than 10 years is no mean feat…” he said.
“Excepting some government departments or agencies – and perhaps some very large corporate litigants – it is unlikely that there are many (or possibly any) other litigants, personal or corporate, that have consumed as much of this court’s resources over that period as (these two) have.”
Justice Snaden pointed out that persistent litigation and vexatious litigation were not the same thing, nor were failed litigation and vexatious litigation.
“Nonetheless, in many cases it will not be difficult to draw a connection between persistence and failure (on the one hand), and abuse that bespeaks vexation (on the other). Here, that connection is abundantly apparent,” he said.
He said he was surprised that none of the interveners in the matter had applied earlier for a vexatious proceedings order.
In assessing the litigation, Justice Snaden said “so vast are its boundaries that it is difficult to know where to begin”.
“It is necessary, at least to some degree, to consider the ocean of judgments that the 25 matters commenced in this court have generated … whatever might have been the kernel of respectability that attended (the couple’s) initial applications, the court’s patience in more recent times has been sorely tested, which has spawned a series of observations that bear upon the present matter,” he said.
Categorising the vast array of interlocutory applications was no easy task, he said.
He pointed to an intervener’s suggestion that they could be categorised into proceedings which: were instituted or pursued without reasonable cause; involved improper allegations; sought to attack earlier judgments or relitigate decided issues; showed an unwillingness to accept or comply with orders or judgments; or involved baseless allegations of judicial bias.
He said the matters involved contentions that were “self-evidently fatuous”, “absurd”, “self-evidently hollow”, and “reflecting uncommon malevolence”.
The couple appeared obsessed with the idea they were wronged, he said.
“It says something of them that (the couple) felt licensed to indulge that obsession as though unencumbered by irksome inconveniences like relevance,” he said.
“So vast is the body of litigation that is open to be interrogated, it is no exaggeration to say that, even as lengthy as these reasons already are, I have barely scratched the proverbial surface.
“Though I need not (and do not) make any finding, the likelihood that there is nothing else in that vast corpus of jurisprudence that is ripe for description as ‘vexatious’ seems limited.”
Justice Snaden said the pair had “a proven record of advancing very serious allegations that are variously unfounded, unsubstantiated, irrelevant, or the subject of prior adverse judicial consideration”.
“They have a no less proven record of relying upon meritless – and often circular – contentions in the hope of excusing themselves from the orthodox consequences of their own litigation.
“And they have a seemingly unshakeable conviction that virtually every person whose path they have crossed over the last 23 years of litigation – their initial opponents, the liquidator, their trustee in bankruptcy, solicitors, barristers and other officers of the court (including some judges) – is either in on the conspiracy or is dishonest, partial or otherwise deserving of censure.
“Those matters combine with their prodigious enthusiasm for litigation; an appetite that appears insatiable even in the face of overwhelming failure.
“The result is that they have, for more than a decade now in this court alone, consumed public resources at a level that is obviously disproportionate to their legitimate needs.
“An order restricting future litigation, as serious as it is, is warranted to protect the use of the court’s limited public resources, such that they might more readily be available to other, far more deserving litigants.”
Justice Snaden said an order was also necessary to protect the couple from “the consequences of their own imprudence”.
“No longer should the court turn a blind eye to their tendency toward financial self-harm,” he said.
He made an order which prohibited each respondent from instituting proceedings, including interlocutory proceedings (for the avoidance of doubt) in the court without applying for and obtaining leave.
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