Thinking | 15 May 2017
Council has perpetual litigator declared vexatious
The recent decision in The Hills Shire Council v Stankovic  NSWSC 464 is an important decision for local governments as it deals with circumstances not unfamiliar to many local councils. Click here for a link to the full decision.
The proceedings were brought by The Hills Shire Council (Council) pursuant to the Vexatious Proceedings Act (NSW) (Act), seeking an order pursuant to section 8 of the Act that the Defendant be prohibited from instituting proceedings in New South Wales, without seeking leave of the Court.
The matter dates back to 2005 when the Council brought proceedings against the Defendant, seeking orders under the Environmental Planning and Assessment Act 1979 (NSW) relating to the use and condition of a property in Kellyville, which the Defendant then owned and lived in. In March 2005, Justice Pain of the Land and Environment Court made orders against the Defendant, which marked the start of a long line of litigation instigated by the Defendant.
The Council referred to 41 judgements since 2015, of which 23 were relied on by Council. The Council was a party to a number of these proceedings.
The Court considered it relevant that the Defendant was largely unrepresented during the course of the proceedings. In these proceedings, it was noted that there was no objection from the Defendant to Council tendering the judgements relied on to make out its case, nor was there an issue raised as to the proper construction of the Act. The Court also stated that it is harder to reach the conclusion that particular proceedings are vexatious if the party is legally represented. This we note is significant.
Justice Schmidt highlighted that the Court must be satisfied that the Defendant had instituted or conducted ‘vexatious proceedings’ as defined in the Act and that the Defendant had done so frequently. In addition, the Court must be satisfied that it should exercise its discretion to make the order sought against the Defendant.
In this case, the Court found that the judgments relied upon by Council clearly established the threshold required under the Act.
Importantly, the Defendant did not appeal the judgement of Pain J, and it was clear to the Court that he has never accepted the conclusions reached by Pain J, nor had he accepted the conclusions reached in relation to the validity of his bankruptcy and the consequences that followed.
Justice Schmidt summarised the findings as follows:
“Given what I have explained as to Mr Stankovic’s relentless pursuit of what he undoubtedly believes to be his rights, notwithstanding that he has never been able to establish the correctness of his views, that orders must be made to end his vexatious pursuit of arguments which have repeatedly failed, cannot be doubted”.
Accordingly, the Court made orders pursuant to section 8(7) of the Act, that the Defendant is prohibited from instituting any proceedings in New South Wales that are inconsistent with:
- the Orders made by the Land and Environment Court (including Justice Pain’s decision) were validly made
- the sequestration Order was valid and enforceable and
- the fact that the Kellyville property was validly transferred in ownership.
The Defendant is also prohibited from making a claim in relation to or alleging any loss caused or misconduct by any person in relation to:
- the Orders made against him in the Land and Environment Court in 2005 or
- the conduct of the Council or any other person in the course of the proceedings or
- the sequestration Order or
- the sale of the Kellyville property.
For information about this matter, please contact Stan Kondilios. It is a very serious matter for the government to move the Court for such an Order, where the threshold, for good public policy reasons, is set very high.
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