Slater v Honourable Justice Higgins [2001] FCA 549 (10 May 2001)

Last Updated: 22 May 2001

FEDERAL COURT OF AUSTRALIA

Slater v Honourable Justice Higgins [2001] FCA 549

COURTS & JUDICIAL SYSTEM - application for prerogative relief against a judge of a Supreme Court and the orders made by a Supreme Court - jurisdiction of this Court to grant such prerogative relief - a judge of the ACT Supreme Court is not an officer of the Commonwealth - Court's jurisdiction to order mandamus is limited to officers of the Commonwealth - certiorari goes only to an inferior court - ACT Supreme Court is a superior court.

PRACTICE & PROCEDURE - application to have applicant treated as vexatious - applicant initiated numerous proceedings relating to same issue - issue authoritatively determined by this Court against the applicant - criteria for declaring a person a vexatious litigant.

Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT), s 2

Family Law Act 1976 (Cth), ss 4(1), 9(1), 9(4), 31(1), 45(2)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 3(1), 4(2), 5(6)

Law and Justice Legislation Amendment Act 1997 (Cth), Schedule 12

Judiciary Act 1903 (Cth), ss 39B(1), 39B(1A)

Supreme Court Act 1933 (ACT), s 3(2)

Federal Court Rules, O 21 r 1(b)

Slater v Honourable Jeffrey Allan Miles [1998] FCA 1370, applied

The Queen v Gray; ex parte Marsh [1985] HCA 67; (1984-85) 157 CLR 351, applied

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, applied

Ramsey v Skyring (1999) 164 ALR 378, applied

MERRILEE MARGARET SLATER v HONOURABLE TERENCE JOHN HIGGINS & ANOR

A81 of 2000

MADGWICK J

10 MAY 2001

MELBOURNE (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A81 of 2001

BETWEEN:	MERRILEE MARGARET SLATER APPLICANT
AND:	HONOURABLE TERENCE JOHN HIGGINS FIRST RESPONDENT THE ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY SECOND RESPONDENT
JUDGE:	MADGWICK
DATE OF ORDER:	10 MAY 2001
WHERE MADE:	MELBOURNE (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1. The applicant's application be dismissed.

2. The applicant not be allowed to institute further proceedings without the leave of a judge of this Court.

3. The applicant pay the second respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A81 of 2001

BETWEEN:	MERRILEE MARGARET SLATER APPLICANT
AND:	HONOURABLE TERENCE JOHN HIGGINS FIRST RESPONDENT THE ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY SECOND RESPONDENT

JUDGE:	MADGWICK
DATE:	10 MAY 2001
PLACE:	MELBOURNE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

HIS HONOUR:

1 In this matter, the applicant seeks an order issuing a writ of mandamus against the first respondent, "directing him to Fulfil his Duty to Continue as if the Family Law Act had not been passed pursuant to s 9(1) of the Family Law Act 1975 and Proceed under the Matrimonial Causes Act as if the Family Law Act had not been passed in matter No MC 600 of 1975". The applicant also seeks the issuance of a writ of certiorari "to squash the decision made on 17 November 2000 by the Respondent and be able to File to Continue." The applicant further seeks by her application an injunction to "restrain the Respondent from the continuance of the wrongful act of not enforcing or Applying the proper and due exercise of the provisions of the Matrimonial Causes Act [in accordance] with section 9(1) of the Family Law Act".

2 The first respondent filed a submitting appearance. The Attorney-General of the ACT sought to intervene and filed a notice of motion seeking orders from the Court that the application be dismissed on the ground that it is frivolous or vexatious or otherwise an abuse of process; that the application may not be continued without leave of the Court; and that the applicant may not institute further proceedings without leave of the Court. The applicant having no objection, the Attorney-General of the ACT was made a respondent to the application.

Background facts

3 The applicant has over a number of years instituted a number of proceedings, not only in this Court but also in the Supreme Court of the Australian Capital Territory, the Family Court and the High Court. All these proceedings have their genesis in a 1976 matrimonial cause, instituted in the Supreme Court in 1975, under the Matrimonial Causes Act 1959 (Cth), as it was then operative. On 28 July 1976, Connor J granted a decree nisi of dissolution of marriage based on the finding that the applicant's husband had been guilty of cruelty to her. His Honour ordered that the applicant have custody of two of their six children and that Mr Slater pay the applicant spouse and child maintenance. However, his Honour reserved the question of property settlement. By oversight, Mr Slater was named in the decree nisi as Laurence Walter Slater rather than Walter Laurence Slater, his correct name. A Memorandum of the decree nisi having become absolute was issued by the Supreme Court on 10 September 1976, again with Mr Slater incorrectly named.

4 On 28 October 1993, the applicant filed a notice of motion in the Supreme Court seeking orders for the finalisation of the property settlement, reserved by Connor J in the matrimonial cause. On 29 November 1993, Higgins J transferred the matrimonial cause to the Family Court. On 5 July 1994, Treyvaud J of the Family Court, made orders to effect a division of property between the applicant and her former husband. Ms Slater appealed to the Full Court of the Family Court and had some limited success. The orders were altered in her favour by the Full Court on 10 August 1995, thereby finally concluding the division of property between the applicant and her former husband.

5 On 4 October 1994, the applicant filed a purported notice of motion in the Supreme Court in the matrimonial cause seeking orders that her former husband transfer his interest in a property they owned and that he pay her compensation. The notice of motion was dismissed by Higgins J.

6 The applicant then filed another notice of motion on 18 October 1994 seeking the same orders. This notice of motion was dismissed by Miles CJ on 28 October 1994. His Honour ruled that the orders of Treyvaud J were a settlement of the Slaters' property and, accordingly, that the matrimonial cause had been finally determined. Furthermore Miles CJ held that, as a result of the transfer order of Higgins J and the proclamation made under s 40(3) of the Family Law Act 1976 (Cth), the Supreme Court no longer had jurisdiction to entertain the applicant's cause. Miles CJ also ordered that no further application be filed in the matter without an order of a judge in chambers.

7 Despite the orders of Miles CJ, on 16 January 1997 the applicant sought to file a notice of motion in the Supreme Court seeking that the court determine her entitlements under s 86 of the Matrimonial Causes Act, which deals with settlement of property. The Registrar referred the notice of motion to Miles CJ who directed the Registrar on 7 February 1997 not to accept the notice of motion. The applicant appealed against the order of Miles CJ of 28 October 1994 and sought leave to appeal against his Honour's direction of 7 February 1997. A Full Court of this Court in Slater v Slater [1997] FCA 1592 dismissed the appeal and refused leave to appeal, the Court finding that the Supreme Court did not have jurisdiction to further deal with the applicant's claim. The applicant sought special leave to appeal to the High Court against this decision of the Full Court but leave was refused on 10 November 1997.

8 Despite statements by the Full Court of this Court and members of the High Court as to the inability of the applicant to revive and relitigate the property settlement, the applicant sought to file two more notices of motion in the Supreme Court on 8 December 1997, seeking orders setting aside the transfer order made by Higgins J. The Registrar refused to accept the proposed notices for filing and returned them to the applicant, explaining that there was no appeal against an order transferring proceedings from the Supreme Court to the Family Court and that the Supreme Court did not have jurisdiction to deal with her claim.

9 On 6 February 1998, the applicant filed an application in this Court seeking a writ of mandamus against Miles CJ requiring him to determine the matters referred to in the notice of motion she had sought to file on 16 January 1997. On 3 March 1998, the applicant filed another application seeking a writ of mandamus against the Registrar and Sheriff of the Supreme Court directing them to accept the documents she had attempted to file so that they might be placed before a judge in chambers pursuant to the order of Miles CJ of 28 October 1994. These two applications were heard together by Finn J. His Honour dismissed both applications, determining that this Court did not have jurisdiction to entertain the proceedings. The decision of Finn J was upheld by a Full Court of this court in Slater v Honourable Chief Justice Miles [1999] FCA 185, the Full Court unanimously holding that the applications were an abuse of process.

10 On 7 December 2000, the applicant filed a notice of motion in this Court which, as amended on 2 January 2001, is the notice of motion with which these proceedings are concerned.

The transfer of proceedings to the Family Court

11 When the matrimonial cause came before Higgins J on 29 November 1993, there was outstanding the question of property settlement between the applicant and her former husband. For some reason or other, this issue had been left unresolved since it was reserved by Connor J in 1976 when the decree nisi was issued. Higgins J transferred the issue of the property settlement to the Family Court. This transfer was said by Miles CJ in ex tempore reasons given on 28 October 1994, to have occurred "pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT)" ("the ACT Cross-Vesting Act") and, accordingly, his Honour held that the Supreme Court had divested itself of jurisdiction in relation to the property settlement. This finding of Miles CJ was upheld by a Full Court of this Court.

12 During the course of oral argument before me, the applicant contended that the transfer was invalid as Higgins J did not have power to make the transfer under the Cross-Vesting Act when he purported to do so. The applicant submitted that the Act had not been in force on 29 November 1993.

13 It is true that s 2 of the ACT Cross-Vesting Act provides:

"(1) Section 1 and this section commence on the day on which this Act is notified in the Gazette.

(2) The remaining provisions commence on the day on which the definition of `State' in subsection 3(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth is amended to include the Australian Capital Territory."

14 Subsection 3(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ("the Commonwealth Cross-Vesting Act") was thus amended by Schedule 12 of the Law and Justice Legislation Amendment Act 1997 (Cth) which commenced on the day it received the Royal Assent, pursuant to s 2(1) of that Act, which was 17 April 1997. Accordingly, the operative provisions of the ACT Cross-Vesting Act, enabling a judge of the Supreme Court to transfer proceedings to a court of another jurisdiction came into force on 17 April 1997. Accordingly, it would appear that with respect, Miles CJ made a slip in stating that the property settlement proceedings were transferred pursuant to the ACT Cross-Vesting Act.

15 However, there is no doubt that Higgins J had power to transfer the property proceedings to the Family Court. If Higgins J did not otherwise have such power, there existed in 1993 the Commonwealth Cross-Vesting legislation. The Commonwealth Cross-Vesting Act came into operation on 1 July 1988. Among other things, s 4(2) of that Act conferred the relevant civil jurisdiction of the ACT Supreme Court on the Family Court. By s 5(1)(b)(iii), among other things, the ACT Supreme Court was authorised to transfer a pending proceeding to the Family Court where it was "in the interests of justice that the relevant proceeding be determined by ... the Family Court".

16 In any case, s 9(4) of the Family Law Act 1975 (Cth), had provided:

"Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief, whether instituted under the repealed [Matrimonial Causes] Act or under a law of a State or Territory, may be continued and shall be dealt with as if they were proceedings instituted under this Act."

"Proceedings for principal relief" were those proceedings referred to in paras (a) and (b) of s 4(1), the definition of "matrimonial cause", which provided at the relevant time:

"matrimonial cause means:

(a) proceedings between the parties to a marriage, or by the parties to a marriage, for a decree of:

(i) dissolution of marriage; or

(ii) nullity of marriage; or

(b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree of otherwise;"

The other kinds of proceedings referred to in that definition (including those in para (ca), proceedings relating to the property of the parties), were not proceedings for principal relief. Therefore, pursuant to s 9(4) of the Family Law Act the applicant's property proceedings were to be were to be dealt with as if they were instituted under the Family Law Act.

17 Section 31(1) of the Family Law Act gave the Family Court jurisdiction with respect to matters arising under that Act or under a repealed Act "in respect of which matrimonial causes are instituted or continued" under the Family Law Act. Section 45 of the Family Law Act dealt with transfer of proceedings and relevantly provided:

"(2) Where there are pending in a court proceedings that have been instituted under this Act or are being continued in accordance with any of the provisions of section 9 and it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to the other court."

18 The applicant's property proceedings, as explained above, were "being continued" in accordance with s 9 and therefore were within the jurisdiction of the Family Court. Higgins J had power pursuant to s 45(2) of the Family Law Act to transfer those proceedings to the Family Court, as he did, if he believed that it was in the interests of justice or of convenience to the parties. Although there are no extant reasons for the decision by Higgins J to transfer the proceedings to the Family Court, in my opinion his Honour was empowered to transfer the proceedings because it was manifestly in the interests of justice and of convenience to the parties for the Family Court, a specialist court, to deal with the applicant's property proceedings, and perfectly open for Higgins J so to find. This conclusion is supported by what Treyvaud J said in his judgment of 5 July 1994:

"These proceedings then are, in fact, merely the hearing of the wife's application for property settlement, filed long ago, in 1975. Those proceedings are now continued under the provisions of the Family Law Act, by reason of some of the earlier sections in the Act which deal with the transformation of Matrimonial Causes Act proceedings into proceedings under the Family Law Act."

19 Therefore, whether, as I think, under the Family Law Act or as Miles CJ seems to have thought (despite his Honour's reference to the ACT Act), under the Commonwealth Cross-Vesting Act, the order of Higgins J transferring the property proceedings to the Family Court for determination was valid. Jurisdiction generally exists or fails to exist in an office holder regardless of whether the office holder correctly perceives the basis for it. Of even less relevance is a slip by a reviewing court in such perception.

Jurisdiction of this Court to grant the relief sought

20 The applicant is seeking from this Court orders of mandamus and certiorari against a judge of the ACT Supreme Court. Whether this Court has jurisdiction to order mandamus against a judge of the Supreme Court was dealt with by Finn J in Slater v Honourable Jeffrey Allan Miles [1998] FCA 1370. His Honour said:

"It is clear that in the respective capacities in which the respondents [the Chief Justice, Registrar and Sheriff of the Supreme Court] were acting in these proceedings, they were not officers of the Commonwealth. Neither were the duties they were alleged not to have performed ones arising under laws made by the Commonwealth Parliament.

The ACT Statutory Setting

The Supreme Court was established by the Australian Capital Territory Supreme Court Act 1933 (Cth) ("the Supreme Court Act"). After 1 July 1992 that Act is to be taken to be an enactment of the Legislative Assembly of the ACT by virtue of s 34(2) and (3) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) ("the Self-Government Act"). The ACT Supreme Court (Transfer) Act 1992 (Cth) provided for the transfer of responsibility for the Supreme Court from the Commonwealth to the Territory.

The Supreme Court Act establishes the Supreme Court as a superior court of record: s 3. It consists of the Chief Justice and other judges who are appointed by the Executive: ss 3, 4. The Self-Government Act likewise provides for the procedures to be followed in removing a judge from office: s 48D.

The jurisdiction of the Court encompasses -

"(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory;

(b) jurisdiction conferred by a Commonwealth Act or a law of the Territory.": Supreme Court Act, s 20(1).

Prior to the Self-Government Act it had been held that the then Supreme Court was not a federal court or a court exercising federal jurisdiction: Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591. Despite the criticisms made of that view in Kruger v The Commonwealth (1997) 190

CLR 1 at 108-109 and 170ff, it represents both the law I am to apply and the foundation of the Self-Government Act as it applies to the Supreme Court.

...

Turning now to the Self-Government Act, it established the ACT as a body politic separate from the Commonwealth: s 7; and conferred law-making power for the Territory on the Legislative Assembly: s 22. As already noted, by virtue of s 34 of the Self-Government Act, the Supreme Court Act, though originally a Commonwealth statute, is now to be taken as an enactment of, and hence as a law of, the Legislative Assembly. I should emphasise that the Legislative Assembly in the exercise of its law-making power does not act in any sense as an agent or delegate of the Commonwealth Parliament: Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248 at 281-282.

Section 39B

In the scheme created by the self-government legislation it is not open to argument in this court that the Chief Justice and Justices of the Supreme Court are, as such, "officers of the Commonwealth". They hold only Territory appointments under what now must be regarded as Territory legislation and it is in virtue of those appointments that they constitute the Supreme Court. For present purposes it is coincidental that some, but not all, members of the Court hold Federal Court commissions as well. Insofar as the present matter is concerned, Chief Justice Miles was exercising an office now to be regarded as created by Territory law and he was exercising jurisdiction under a Territory statute, ie the Supreme Court Act, in making his order of 7 February 1997.

...

Mrs Slater entertains the view, apparently in relation to all of the respondents, that, as her motions relate to the Matrimonial Causes Act 1959 (ie a Commonwealth statute), this has the effect both of making them officers of the Commonwealth and of transforming the duties she seeks to enforce in these applications into ones arising under (ie owing their existence to) a law of the Commonwealth: cf LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at 581.

It is of course the provenance of the office held and not of particular powers the office holder may in fact be empowered to exercise that determines whether that officer is or is not an officer of the Commonwealth: R v Anderson; Ex parte Bateman (1978) 21 ALR 56; Trimbole v Dugan (1984) 3 FCR 324. Likewise, if the right or duty in question in a matter does not owe its existence to Federal law or depend upon Federal law for its enforcement, the matter itself does not arise under a Federal law: Re McJannet; Ex parte Australian Workers' Union of Employees, Queensland [No 2] [1997] HCA 40; (1997) 189 CLR 654 at 657; notwithstanding that if that right or duty is enforced it would allow consideration to be given in turn in another court to a right etc that does owe its existence to a Federal law. The present matter concerns the enforcement of the respective duties of a judge and of court officers arising in virtue of the Supreme Court Act. That "Territory matter" is not transformed into one arising under a law of the Federal Parliament merely because the subject of the motion Mrs Slater wishes to have determined in the Supreme Court relates to alleged rights etc under such a law.

Accordingly I do not have jurisdiction in any event to entertain Mrs Slater's applications"

21 During the course of oral argument, Ms Slater was unable to suggest any reason why Finn J was wrong in his determination that a judge of the Supreme Court is not an "officer of the Commonwealth" and, therefore, that this Court does not have jurisdiction to order any prerogative relief against such a judge. In my respectful opinion, Finn J was correct in his determination of the issue of jurisdiction. I note that in Slater v Honourable Chief Justice Miles [1999] FCA 185, Spender J, with whom Higgins and Weinberg JJ agreed, observed that "on the present state of the law, I see no error in the answers which [Finn J] gave".

22 Applying the reasoning of Finn J to the case at hand, Higgins J was at all times when dealing with the applicant's case not an officer of the Commonwealth and therefore this Court has no jurisdiction to order a writ of mandamus pursuant to ss 39B(1) or 39B(1A) of the Judiciary Act 1903 (Cth).

23 The applicant also seeks in her amended application a writ of certiorari quashing the decision of Higgins J of 17 November 2000, refusing the applicant leave to file further documents in her matrimonial cause proceedings and dismissing her notice of motion of 14 November 2000. The question arises whether, in any case, a writ of certiorari lies in respect of an order of the Supreme Court.

24 In The Queen v Gray; ex parte Marsh [1985] HCA 67; (1984-85) 157 CLR 351 at 387 Deane J said:

"...it has long been accepted as basic law that certiorari lies only to an `inferior' court or tribunal and not to a superior court of record."

This was reaffirmed in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, where the High Court stated:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made."

25 As Finn J noted in the passage cited above, s 3(2) of the Supreme Court Act 1933 (ACT) established the ACT Supreme Court as a superior court of record. Accordingly, a writ of certiorari does not lie against an order of a judge of the Supreme Court.

26 The third order that the applicant seeks in her amended application is an injunction, in effect requiring Higgins J to deal with her matrimonial cause proceedings. This is in substance the same order the applicant was seeking by way of mandamus. For the reasons given, this Court has no jurisdiction to compel Higgins J to do what the applicant seeks.

27 I also note that, apart from this Court lacking jurisdiction to grant the orders the applicant seeks, given my findings on the validity of the transfer of the applicant's matrimonial cause to the Family Court, the Supreme Court does not have jurisdiction to further deal with the applicant's matrimonial cause as determined by two Full Courts of this Court. Thus, if I had jurisdiction, a case has not been made out for its exercise.

Attorney-General's application

28 The Attorney-General of the ACT seeks by way of notice of motion orders:

* that the application be dismissed on the grounds that the proceeding is frivolous or vexatious or otherwise an abuse of process of the Court;

* that the application may not be continued without leave of the Court; and

* that the applicant not be allowed to institute further proceedings without leave of the Court.

29 It is not necessary to deal further with the first and second of these proposed orders (numbered 2 and 3 in the notice of motion) because of my findings above, which dispose of the matter, except to say that Ms Slater's application was indeed manifestly hopeless and, on account of that, an abuse of the Court's process.

30 In relation to the third proposed order (numbered 4), the Attorney-General makes this claim on the basis that the applicant is a vexatious litigant and that therefore an order should be made pursuant to O 21 r 1(b) of the Federal Court Rules preventing the applicant from instituting any further proceedings in this Court without leave of the Court.

31 Order 21 r 1 provides:

"If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:

(a) that any proceeding instituted by the person may not be continued without leave of the Court; and

(b) that the person may not institute a proceeding without leave of the Court."

32 The principles governing O 21 r 1 were considered by Sackville J in Ramsey v Skyring (1999) 164 ALR 378 at 389ff. His Honour's observations are worth setting out in full:

"FCR O 21, r 1 must be applied having regard to a fundamental principle of the legal system. It is that every person has a right of access to a court to seek remedies in consequence of an alleged infringement of his or her rights: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909, at 977, per Lord Diplock. Because an order made under a provision such as O 21, r 1 denies a litigant this right, it has been treated as an "extreme" remedy: Attorney-General v Wentworth (1988) 14 NSWLR 481, at 484, per Roden J. As Kirby J has pointed out in one of the many cases involving the respondent, "it is regarded as a serious thing in this country to keep a person out of the courts": Re Attorney-General (Cth); Ex parte Skyring, at 323.

Nonetheless, provisions such as O 21, r 1 give effect to an important countervailing policy. As Toohey J pointed out in relation to the equivalent High Court provision, the rule is designed to protect the Court's own processes against unwarranted usurpation of its time and resources and to avoid loss caused to those who face actions which lack substance: Jones v Skyring, at 814. Linked with that objective is the need to protect the community, including litigants who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings. The serious consequences of an order made pursuant to O 21, r 1 are acknowledged in the stringent requirements of the rule itself. Only if these requirements are satisfied does the Court have power to make such an order. Even if the requirements are satisfied, the Court must consider whether an order should be made.

In order for O 21, r 1 to apply, it must be shown that the respondent

* habitually and persistently

* and without any reasonable cause

* institutes

* a vexatious proceeding

* in the Court.

It will be seen that the rule is limited to the case where the respondent institutes a proceeding in the Court. In this respect it is to be contrasted, for example, with s 3 of the Vexatious Litigants Act 1981 (Qld), which allows the Supreme Court to declare a person to be a vexatious litigant if satisfied that the person has "frequently and without reasonable ground instituted vexatious legal proceedings". A provision in the latter form permits the court, when considering whether the relevant criteria have been satisfied, to take into account vexatious legal proceedings instituted in courts other than the one to which the application is made (although it seems that the provision is limited to proceedings instituted in Queensland courts: O'Shea v Cameron (unreported, 5 March 1996, Qld CA)). The terms of FCR O 21, r 1 can be satisfied, however, only by proceedings instituted in this Court. Even so, in determining whether particular proceedings instituted in this Court are in fact "vexatious", it may be appropriate to take account of proceedings in other courts where, for example, they have authoritatively resolved the particular issue against the person instituting the proceedings: cf O'Shea v Cameron, at 6, per Mackenzie J, with whom Pincus JA agreed.

It has been said that the expression "habitually and persistently" implies more than "frequently" (the latter being the word used, for example, in High Court Rules, O 63, r 6(1) and in s 3 of the Vexatious Litigants Act 1981 (Qld)). In Attorney-General v Wentworth, Roden J (at 492) said this of the same expression, used in s 84(1) of the Supreme Court Act 1970 (NSW):

"`Habitually' suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; `persistently' suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness."

Although Roden J eschewed any attempt to formulate a definition of universal application, his test has been cited with approval: Valassis v South Sydney City Council (1996) 92 LGERA 275, at 280; Attorney-General for Victoria v Lindsey (unreported, 16 July 1998, Sup Ct Vic, Kellam J), at 9. I am content to proceed on the basis that Roden J's observations are correct.

The test of whether a person "without any reasonable ground institutes a vexatious proceeding" is an objective one. In Jones v Skyring, at 813, Toohey J endorsed the observation of Ormerod LJ in In re Vernazza [1960] 1 QB 197, at 208, in relation to almost identical language contained in the Supreme Court of Judicature (Consolidation) Act 1925 (UK), s 51(1):

"[The words] are referring to legal proceedings, and the question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious".

As Toohey J observed, the question must be decided on the facts, not by reference to whether the person against whom the order is sought has acted in good faith. It is therefore immaterial that the respondent may believe in the justice of his or her argument and may not understand that the argument has been authoritatively rejected.

In Jones v Skyring, Toohey J (at 813) suggested that there was some tautology in the language of the relevant rule, since "vexatious" seemed to add little to the concept of proceedings instituted "frequently and without reasonable ground". His Honour was of the view that persistent attempts by a litigant to argue questions authoritatively determined against him or her were within High Court Rules, O 63, r 6(1). In Attorney-General v Wentworth, Roden J (at 492-493) considered that the test was whether an objective assessment of the proceedings instituted by the relevant person showed that they were "utterly hopeless". I do not think it necessary in this case to explore whether Toohey J intended to adopt a less stringent test than that adopted by Roden J or, indeed, whether it is necessary to add anything to the language used in O 21, r 1 itself.

In determining whether a person "institutes" a proceeding for the purposes of O 21, r 1, it is necessary to have regard to the definition of "proceeding" in s 4 of the Federal Court Act, since the definition applies to the FCR: Acts Interpretation Act 1901 (Cth), s 46 (1)(a). The Federal Court Act defines "proceeding" to mean:

"a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal".

It has been accepted that the filing of an appeal involves the institution of a proceeding in the context of an application to declare a person a vexatious litigant: Vernazza, at 209-10, per Ormerod LJ; Jones v Skyring, at 813, per Toohey J. In the latter case, Toohey J (at 814) identified applications to a justice for leave to issue proceedings in consequence of a direction under High Court Rules, O 58, r 4(3) (the equivalent to FCR, O 46, r 7A), notices of motion, notices of appeal and summonses as constituting the institution of legal proceedings. In Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, Yeldham J expressed the view (at 488) that:

"where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form".

In my view, having regard to the definition of "proceeding" to which I have referred, the observations in these cases apply to FCR O 21, r 1."

33 The applicant has instituted the following proceedings in this Court, all of which have been determined against her:

* Slater v Slater, AG16 of 1997;

* Slater v Honourable Jeffrey Allan Miles, AG16 of 1998;

* Slater v Registrar Allan Jeffrey Towill, AG24 of 1998;

* Slater v Honourable Chief Justice Miles, AG110 of 1998;

* Slater v Honourable Terence Higgins, A81 of 2000 (the present proceedings).

Furthermore, as Sackville J said, it is relevant to take into account proceedings in other courts where the issue has been authoritatively determined against the person. The applicant has instituted the following proceedings in other courts which have likewise determined that the Supreme Court has no jurisdiction to deal with the applicant's matrimonial cause proceedings and that the applicant's property proceedings which seeks the Supreme Court to determine have been determined by the Family Court:

* Slater v Slater, MC600 of 1975, Miles CJ 28 October 1994;

* Slater v Slater, C6 of 1997, Special leave application to the High Court.

34 Thus the applicant has instituted numerous proceedings in the Federal Court and also the Supreme Court, sought leave to appeal to the High Court in relation to her matrimonial property grievances and sought to compel the ACT Supreme Court to deal with her proceedings. After the initial attempts to invoke the jurisdiction of this Court were unsuccessful, the continued attempts by the applicant to use this Court to compel the Supreme Court to deal with her matrimonial cause, including these present proceedings, have clearly been instituted without any reasonable ground. No doubt the applicant believes that she has valid reasons to come to this Court and seek it to compel the Supreme Court to deal with her matrimonial cause but, looking at the matter objectively, the applicant has had no reasonable ground for instituting the numerous proceedings that she has. The issues which the applicant continually raises before this Court have been authoritatively determined against her and her cause can fairly be described as "utterly hopeless", in the words of Roden J.

35 Although it is a serious thing to declare a litigant as vexatious and keep her out of the Court, without first having the leave of a judge, Ms Slater has shown by her persistent refusal to accept the decisions of this and other courts that, unless the Court acts to protect the respondents whom Ms Slater is apt to name, other litigants in the queue of cases awaiting hearing and the Court's own interest in preventing abuse of its processes, she will continue to seek to bring these hopeless matters forward. Ms Slater should therefore be treated as a vexatious litigant pursuant to O 21 r 1.

Disposition

36 The applicant's application is dismissed. The application of the Attorney-General will be allowed in part. The applicant may not institute further proceedings without the leave of a judge of this Court. The applicant is to pay the second respondent's costs.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 10 May 2001

Applicant appeared in person.
Counsel for the Respondents:	Dr D R Jarvis
Solicitor for the Respondents:	Australian Capital Territory Government Solicitor
Date of Hearing:	14 February 2001
Date of Judgment:	10 May 2001