Valassis v Bernard & Anor [2000] NSWSC 1025

New South Wales Supreme Court

CITATION : Valassis v Bernard & Anor [2000] NSWSC 1025 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11711 of 2000 HEARING DATE(S) : 23 October 2000 JUDGMENT DATE : 26 October 2000

Dennis Valassis (plaintiff) PARTIES : Eric Bernard (1st defendant) Dennis Nolan, Residential Tribunal (2nd defendant) JUDGMENT OF : Hidden J at 1

COUNSEL : Plaintiff in Person Simon Kerr (1st defendant) SOLICITORS : Gray & Perkins (1st defendant) Crown Solicitor (2nd defendant) CATCHWORDS : PRACTICE - vexatious litigant - whether proceedings instituted "habitually and persistently" LEGISLATION CITED : Supreme Court Act 1970 Residential Tenancies Act 1987 Attorney-General v Wentworth (1988) 14 NSWLR 481 CASES CITED : Hunters Hill Municipal Council v Pedler (1976) 1 NSWLR 478 Valassis v South Sydney Council (1996) 92 LGERA 275 DECISION : Plaintiff's summons dismissed; 1st defendant's application for order under s84(2) of Supreme Court Act also dismissed.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J Thursday 26 October 2000

011711/00 - DENNIS VALASSIS v ERIC BERNARD & ANOR

JUDGMENT - ex-tempore

1 HIS HONOUR: I have before me a motion by the first defendant in these proceedings, Eric Bernard, seeking an order that the plaintiff's motion be summarily dismissed and an order under s84(2) of the Supreme Court Act 1970 that the plaintiff shall not, without the leave of the Court, institute proceedings in any court against the first defendant. 2 It is necessary to examine briefly the history of the proceedings between the parties. 3 The first defendant was a tenant of premises owned by the plaintiff. There was a dispute between the parties which led to proceedings in the Residential Tenancies Tribunal. It is unnecessary for present purposes to examine the nature of those proceedings or the issues which were required to be determined. 4 The proceedings were commenced in September 1997 and ultimately the tribunal gave judgment in December of that year. The matter was resolved partly in the plaintiff's favour but by no means to his satisfaction. He appealed to this Court from the tribunal's decision. Provision for appeal is made by s107(2) of the Residential Tenancies Act 1987 and the appeal is confined to a question of law. 5 In March 1998 that appeal was dismissed by Dowd J on the basis that no question of law arose. In October 1998 leave to appeal against the decision of Dowd J was refused by the Court of Appeal. In August 1999 special leave to appeal to the High Court against the decision of the Court of Appeal was refused. 6 The plaintiff's current summons seeks an order that the proceedings before Dowd J be "reheard in full" and certain consequential orders. Clearly, no such relief could be granted. I allowed the plaintiff to give evidence setting out the matters of which he complains. It is clear that he seeks to re-agitate the very matters which had been the subject of the proceedings before Dowd J. The fact is that the matter was finally determined by Dowd J and the appellate process in relation to the order of Dowd J has been exhausted. 7 The plaintiff's present summons has no prospect of success whatsoever and it must be dismissed. 8 However, the first defendant's application for an order under s84(2) of the Supreme Court Act is not so easily disposed of. Section 84, of course, is the section dealing with vexatious litigants. Sub-section (1) provides for an application by the Attorney-General for an order that a vexatious litigant not institute proceedings against anyone without the leave of the Court. Sub-section (2) provides for an application by a particular party that a vexatious litigant not be permitted to institute proceedings against that party without the leave of the Court. 9 I was referred to another case involving the present plaintiff, Valassis v South Sydney City Council (1996) 92 LGERA 275. In that case Stein J (as his Honour then was), sitting in the Land and Environment Court, made an order against the plaintiff under an equivalent provision of the Land and Environment Court Act 1979. The fact that that order was made has no relevance whatsoever to the first defendant's present application. I was referred to the decision because there is in it useful reference by Stein J to relevant authority. 10 Among the cases to which his Honour referred were two decisions of this Court which are of importance: Hunters Hill Municipal Council v Pedler (1976) 1 NSWLR 478 and Attorney-General v Wentworth (1988) 14 NSWLR 481. All the authorities identify the seriousness of making an order such as that which the first defendant seeks. 11 In Hunters Hill Municipal Council v Pedler Yeldham J had this to say at 480: It is clear that, although the consequences of an order under s84(2) are less drastic than those under s84(1) ... its effect upon the ordinary rights of a person to approach a court for relief in respect of what he or she, rightly or wrongly, believes to be a grievance against another, is such that the powers conferred by the section must be used with caution, and only in clear cases. Nonetheless they exist to protect persons aggrieved by vexatious litigation, and, in any event, are subject in a proper case to the making of further orders giving leave to proceed. In this respect the provision of s 84(3) and (4) should be noted. 12 Drawing upon the principles enunciated in these authorities, I am satisfied that the plaintiff's present summons is vexatious in the sense that it is obviously untenable. However, the sub-section requires that I must also be satisfied that the plaintiff has "habitually and persistently" instituted proceedings against the first defendant. 13 I do not think the course of events thus far could be described as habitual and persistent institution of proceedings. The case is more akin to that which Roden J dealt with in Attorney-General v Wentworth. The history of the proceedings between the parties is very different from that disclosed in Hunters Hill Municipal Council v Pedler, and in Valassis v South Sydney City Council. 14 For those reasons, I do not propose to make an order against the plaintiff under s 84(2) of the Supreme Court Act. I should, however, add this. If the plaintiff were to institute further proceedings covering the same ground, another judge on another occasion may take a different view of a similar application by the first defendant. 15 Accordingly, as I have said, the plaintiff's summons is dismissed, but the defendant's application for an order under s84(2) of the Supreme Court Act is also dismissed. 16 On the question of costs my preliminary view, but I will hear from the parties, is that Mr Bernard has succeeded against the plaintiff in one respect but not in another. Nevertheless, it seems to me that argument on the vexatious litigant aspect really did not add anything to the hearing time of the motion as a whole, which was really directed to the merit of the plaintiff's summons. It is for that reason I am minded to make an order in Mr Bernard's favour for the costs of the motion unless I can be persuaded otherwise.