Federal Court: September 2024

VEXATIOUS PROCEEDINGS ORDERS

Full Court observed appellant was ‘indefatigable litigant’ – proposed order appellant be prohibited from instituting proceedings without application for leave – circumstances appropriate to make vexatious proceedings order.

Storry v Parkyn [2024] FCAFC 100 (Lee, Feutrill and Jackman JJ)

This was an appeal from Storry v Parkyn [2023] FCA 1141. The appellant, Ms Storry, was an undischarged bankrupt who, in various proceedings, had sought orders to remove her trustee in bankruptcy and other orders in relation to property preservation. In the proceedings below, Ms Storry unsuccessfully applied for judicial review of a registrar’s decision to refuse to accept documents for filing.

Ms Storry had been involved in about 26 proceedings over the last seven years (including interlocutory ones). In an appeal judgment of the latest two proceedings (‘appeal judgment’), the Court noted that Ms Storry was a ‘indefatigable litigant’ who had been involved in many proceedings, and her litigious endeavours had consumed considerable court time and resources. It came to the preliminary view that it may be that Ms Storry had frequently instituted or conducted vexatious proceedings in Australian courts and tribunals and, if this was established, a vexatious proceeding order could follow (at [8]).

Having reached this preliminary view, the Court of its own motion proposed an order be made that, pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’), Ms Storry be prohibited from instituting proceedings without making an application for leave in accordance with s 37AR of the FCA Act (‘Proposed Order’) (at [9]).

At the hearing on whether or not the Court should make the Proposed Order, an amicus curiae was appointed, and written and oral submissions were received by both Ms Storry and the amicus.

The Court’s findings

Lee, Feutrill and Jackman JJ produced a joint judgment in which the Proposed Order was made. In their reasons, they found that s 37AO of the FCA Act empowers the Court to make a vexatious proceedings order against a person, including an order the person not institute proceedings in the Court. The Court (including the Full Court) may make a vexatious proceedings order on its own initiative but must not make such an order without hearing the person or giving the person an opportunity to be heard (at [13]). The Justices then considered the relevant section, the definitions of the words used (at [14]-[15]) and the consequences of a vexatious proceedings order. In this regard, they noted such consequences may include that the person the subject of the order is precluded from instituting proceedings, or proceedings of a particular type, without the leave of the Court (referring to s 37AQ(1)(a) of the FCA Act). As observed in Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 (‘Fokas’) at [6], the Court’s power to grant such leave is fettered, because leave may be granted only if the Court is satisfied that the proceeding is not a vexatious proceeding (referring to s 37AT(4) of the FCA Act) (at [16]).

The Court held that a vexatious proceeding order is an extreme measure and the making of one is a very serious matter. Its purpose is not to punish the litigant for past misdeeds but to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits (at [17], citing Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56]). However, the extent of the increasing disruption to the efficient management of the Court’s business caused by allowing vexatious proceedings to be instituted and maintained without check is also a serious matter (at [18]). Further, the consequence of a vexatious proceedings order is not to impose an ‘insuperable barrier’ to litigation by a vexatious litigant entirely, but to control it by imposing a requirement for leave (at [18]). It is therefore a balancing of the rights of one individual with the rights of other individuals to access justice (at [18]-[19]).

Under s 37AO(1)(a) of the FCA Act, there were four necessary conditions for a vexatious proceedings order, namely that the person in question has: (1) frequently (2) instituted or conducted (3) vexatious proceedings (4) in Australian courts or tribunals (at [20]).

Further, regard could be had to other proceedings and orders made in, and the conduct of, those other proceedings (referring to s 37AO(6)of the FCA Act). Section 91 of the Evidence Act 1995 (Cth) is not infringed by relying on orders and reasons for judgment in other proceedings for the purposes of considering whether a proceeding is vexatious (at [21], citing Fokas).

The Court then considered whether:

• proceedings had been instituted by Ms Storry that could be properly characterised as being vexatious proceedings and whether those proceedings constituted an abuse of process or were proceedings instituted or pursued without reasonable grounds (given the definition of ‘vexatious proceedings’ under s 37AM(1) of the FCA Act) ; and
• if so, whether this had occurred ‘frequently’.

The amicus produced a table of 24 proceedings in which Ms Storry had been involved and submitted that 21 of those proceedings were each capable of being characterised as vexatious.

The Court also received submissions from Ms Storry as to whether each of the 24 proceedings as well as the two additional proceedings the subject of the appeal judgment were vexatious. It then proceeded to consider each and every proceeding, outlining in summary form what Ms Storry had to say about them.

In determining whether Ms Storry had commenced proceedings which were vexatious, the Court noted it was not to make findings about the facts in issue but rather take account of the record and make an assessment as to its character (at [50]).

It then went on to refer to some of the proceedings to support its decision that Ms Storry had commenced vexatious proceedings and had done so frequently (at [51]-[65]). The Court determined that it would not matter if they were wrong about the characterisation of some of the proceedings as the meaning of the word ‘frequently’ is relative and must be viewed in context (at [46]–[49], citing Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125). Further, the number of proceedings may be small if a litigant attempts to relitigate or re-agitate issues previously determined (at [66]).

It was plain to the Court that Ms Storry’s complaints were recurring in nature (at [66]). Therefore, the four necessary conditions under s 37AO(1)(a) of the FCA Act had been satisfied and the Court made the Proposed Order. In doing so, the Court was mindful that such an order would preclude any appeal without special leave being granted (at [70]) and that an order restricting a person’s access to the courts by imposing a leave requirement was exceptional and serious and was not to be made lightly (at [71]). It was also cognisant of not punishing Ms Storry for past mistakes (at [71]).

However, this was not a case at the margins and several factors compelled the Court to make the Proposed Order, namely:

• as an undischarged bankrupt there were already fetters on Ms Storry’s ability to commence most types of proceedings, however this had not stopped her from commencing non-exempt proceedings;
• this was a clear example where the Court must act to protect itself from the expense, burden and inconvenience of baseless and repetition proceedings instituted by Ms Storry. Ms Storry ‘had plenty of days in Court, but she [was] not entitled to another person’s day in court to pursue quixotic and misconceived complaints’ (at [74]). The Court was amply satisfied a vexatious proceeding order was reasonably necessary to protect court resources so that they were available to other litigants;
• Ms Storry’s arguments were replete with irrelevancies and misconceptions rendering them difficult to follow. Trying to understand the arguments and make them comprehensible caused considerable court time to be consumed and directed to no useful end;
• the Proposed Order was reasonably necessary to protect Ms Storry from the consequences of her own actions (at [76], citing Attorney-General v Reid [2012] NZHC 2119 at [25]). Ms Storry was much vexed and disturbed by appearing in court to conduct her litigation and she had also wasted associated out-of-pocket expenses; and
• although not decisive, absent the Proposed Order, other vexatious court proceedings were likely to be brought.

In addition to the Proposed Order, the Court also considered whether a stay of any proceeding already instituted should be made, however, it found it was not necessary or appropriate to interfere given that judgment had been reserved in relation to certain aspects of those proceedings.

ADMINISTRATIVE LAW

Appellant sought declaration that legal limits of Australian Information Commissioner’s authority exceeded and right to review unlawfully delayed – significant delays – whether unreasonable delay.

Patrick v Australian Information Commissioner [2024] FCAFC 93 (‘Patrick v AIC’) (Bromwich, Abraham and McEvoy JJ)

The decision of Patrick v AIC addresses the question of what constitutes unreasonable delay in making an administrative decision in circumstances where a decision maker is under a statutory duty to make a decision but there is no time limit prescribed.

Background facts

Mr Rex Patrick, the appellant and a former member of the Australian Senate, made several applications under s 11 of the Freedom of Information Act 1982 (Cth) (‘FOI Act’). These applications were made when the appellant was a senator and were for access to ‘documents of Commonwealth government agencies and official documents of Ministers’. The applications were refused (‘Refusal Decisions’) and the appellant sought further Information Commissioner Reviews (‘IC Reviews’) of the Refusal Decisions by the Australian Information Commissioner (‘AIC’) pursuant to pt VII of the FOI Act.

Procedural history

In 2021, the appellant applied to the Federal Court of Australia for declaratory relief pursuant to s 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) asserting there had been ‘unreasonable delay’ in conducting the IC Reviews. At first instance, the appellant sought declaratory relief for nine IC Reviews which was subsequently reduced to seven. The primary judge refused declaratory relief finding there had not been unreasonable delay.

Issues on appeal

The appellant then appealed to the Full Court of the Federal Court of Australia (‘FCAFC’), asserting the primary judge ‘erred in concluding… it had not been established that the delay in consideration of those applications was unreasonable’. Initially, the appeal concerned the seven IC Reviews the subject of the decision at first instance. During the appeal, however, the AIC had determined one of the IC Reviews (the ‘Sixth IC Review’) and the FCAFC was subsequently left to decide whether the primary judge erred in finding there had been no unreasonable delay for the remaining six IC Reviews in progress.

Consequently, the FCAFC had to determine two matters:

• whether the primary judge had erred in finding there had been no unreasonable delay in advancing the IC Reviews by the AIC; and
• if the answer to the first question is yes, whether there is some other reason for refusing the declaratory relief sought.

Legislative framework and principles

Legislation

This matter involves three Commonwealth Acts of Parliament:

• the Australian Information Commissioner Act 2010 (Cth) (‘AIC Act’);
• the FOI Act; and
• the ADJR Act.

The author does not intend to repeat all the statutory provisions referred to in the FCAFC decision given the scope and limit of this case note. A full description of the relevant legislative provisions is at [7]-[18] of the FCAFC decision. For the purposes of this case note, the author refers to the following statutory provisions:

• section 55(1) of the FOI Act which empowers the AIC to conduct a review of an IC Reviewable decision;
• section 55K(1) of the FOI Act which imposes a duty on the AIC to, following an IC Review, affirm, vary or set aside an IC Reviewable decision; and
• section 7(1) of the ADJR Act which provides a statutory ground of review for a person who is aggrieved by the failure of a decision maker to make a decision by reason of unreasonable delay in circumstances where the decision maker has a duty to make a decision but there is no prescribed time limit.

Legal principles

In determining whether a decision maker has caused unreasonable delay in their failure to make a decision for the purposes of s 7(1) of the ADJR Act, the courts apply a number of principles including:

1. In the absence of a specified time limit, a decision that is required by statute to be made by a decision maker must be made within a reasonable time (Minister for Immigration and Citizenship v Li [2013] HCA 18 (‘Li’) at [102], cited in Patrick v AIC at [37]).
2. The standard of reasonableness is a matter for statutory construction (Li at [102], cited in Patrick v AIC at [37]).
3. The standard of reasonableness is to be assessed objectively (Thornton v Reparation Commission (1981) 35 ALR 485 at 490-491 (‘Thornton’) cited in Patrick v AIC at [37]).
4. Whether the delay in making the decision is unreasonable is to be assessed in all the circumstances (Thornton at 493, cited in Patrick v AIC at [37]) having regard to the decision-making framework established under the relevant act (Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24 at [37], cited in Patrick v AIC at [37]). For example, a delay in making an administrative decision under the Migration Act 1958 (Cth) would be treated differently to a delay under the FOI Act as the former is concerned with the rights and liberty of the individual (Patrick v AIC at [45]).
5. Whether there is an explanation for the delay that a reasonable person would consider satisfactory to justify the delay (Thornton at 492, cited in Patrick v AIC at [37]).
6. The question of whether the length of the delay is unreasonable is determined by the high threshold of unreasonableness in administrative decision making as a matter of law (Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [25], cited in Patrick v AIC at [40]).
7. The courts have no authority to dictate to Parliament or the Executive what resources should be made available to a government agency to carry out its administrative functions (Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 (‘Wei’) at 477, cited in Patrick v AIC at [27] & [46]).
8. While a court can have regard to the lack of resources available to a government agency as part of its determination as to whether there has been an unreasonable delay in making a decision, there is a ‘limit beyond which a delay is unreasonable regardless of resourcing being an explanation for it’ (Patrick v AIC at [32], citing Wei at 477 with approval).

FCAFC decision

No unreasonable delay

Having considered and applied the above principles, the FCAFC concluded the trial judge did not err when finding there had been no unreasonable delay by the AIC in carrying out the IC Reviews.

Specifically, the FCAFC focused on the Sixth IC Review which, although finalised during the course of the FCAFC appeal and no longer in issue, was considered the high point of the appellant’s case for unreasonable delay (Patrick v AIC at [74]-[75]). At first instance, the trial judge had found that, having regard to the significant volume of work to be carried out by the AIC and the resourcing constraints within the office, the delay was not unreasonable within the meaning of s 7(1) of the ADJR Act (Patrick v Australian Information Commissioner (No 2) [2023] FCA 530 at [183]). The FCAFC affirmed that finding and held the trial judge did not err in making it.

As the FCAFC found there had been no error in the trial judge’s finding that there was no unreasonable delay for the Sixth IC Review, the FCAFC also concluded there was no error in the trial judge’s findings on the other IC Reviews, being that there was no unreasonable delay within the meaning of s 7(1) of the ADJR Act.

Discretion to refuse relief

While the decision upholding the trial judge’s findings made it unnecessary to determine whether relief should be refused on discretionary grounds, the FCAFC stated in obiter dicta that it would have refused to grant the appellant the declaratory relief sought. In making these remarks, the FCAFC held:

‘it is not appropriate to use the remedy of declaration merely as a summary recording of conclusions reached in reasons for judgment, especially when this is not relied on to advance any right or liability, as would be achieved by an order to comply with the duty, which is eschewed by the appellant’ (at [76]).

In this decision, the appellant had deliberately sought to limit the FCAFC appeal to seeking declaratory relief only. That is, the appellant did not seek any further consequential orders that should follow if the declaratory relief sought was granted. Given this and the principle articulated above, the FCAFC held it would not have granted declaratory relief in this case.

Vincci Chan is a barrister at University Chambers and Michael Morgan is a barrister at 13th Floor St James Hall.