Case: Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378
Outcome: cited
A power to make an order that no legal proceedings should be instituted by a person without the leave of a judge of the Court is, however, conferred on the Court by the Federal Court Rules . One such relevant rule is O 21 r 1. In Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 (affirmed on appeal, Skyring v Ramsey [2000] FCA 774) , Sackville J upheld the validity of O 21 r 1 in its then form. His Honour regarded the rule as falling within the rule making power conferred on the court by the Parliament in s 59(1) and s 59(2)(l) of the Federal Court of Australia Act 1976 . Order 21 r 1 has since been amended but not in any way which would call into question the continuing relevance of the conclusion reached by Sackville J. Those provisions of the Federal Court of Australia Act also support the validity of the other relevant rule, O 21 r 2. 46 So far as presently material and as at the time when the Respondent's application was heard and written submissions made, O 21, r 1 and r 2 provided: 1 Vexatious litigant (1) 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. (2) An order under this rule may be made: (a) on the Court's own motion; or (b) on the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or (c) on the application of the Registrar. 2 Vexatious proceeding against a person Where any person (in this rule called the vexatious litigant) habitually and persistently and without any reasonable ground institutes a vexatious proceeding against any person (in this rule called the person aggrieved) in the Court, the Court may, on application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any proceeding against the person aggrieved in the Court and that any proceeding instituted by the vexatious litigant against the person aggrieved in the Court before the making of the order shall not be continued by him without leave of the Court. 47 Order 21 r 1(2) has since been amended so as to allow an application under O 21 r 1 to be made by, relevantly, "a person against whom the person mentioned in subrule (1) has instituted or conducted vexatious proceedings". This amendment, being procedural, would now give the Respondents a standing which they did not hitherto have to seek relief pursuant to O 21 r 1, providing, of course, that they were persons in respect of whom a vexatious proceeding had been instituted. The standing to bring an application under O 21 r 2, as the then language of that rule provided, was more accommodating for persons in the position in which the respondents allege themselves to be. 51 Discrete applications in the original jurisdiction for relief under O 21 were made in Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 , National Australia Bank Limited v Freeman (a Bankrupt) [2005] FCA 1895 (Spender J) (affirmed, Freeman (a bankrupt) v National Australia Bank Ltd [2006] FCAFC 67 ; (2006) 230 ALR 213) and Granich and Associates v Yap [2004] FCA 1567 (French J). 54 Nonetheless, I note that in Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 Finn J entertained, but did not grant, an application made in an existing proceeding for relief under O 21 r 1 and r 2 as a sequel to a summary judgment application. Though the effect, if any, of O 21 r 3 with respect to the practice and procedure in respect of seeking to engage the powers conferred by O 21 r 1 and r 2 is not mentioned in that case, neither it must be said, is it mentioned in Ramsey v Skyring, National Australia Bank Limited v Freeman (a Bankrupt) and Granich and Associates v Yap . 58 In Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (MMAL Staff Superannuation Fund Pty Ltd) (2007) 242 ALR 370 at 380, [44], Finn J observed of O 21 r 1 and r 2: [44] By way of background to the application of these provisions, it is important to have regard to the fundamental principle on which they entrench. This is that every person has a "constitutional right" of access to a court of competent jurisdiction to obtain redress in consequence of an alleged breach of his or her rights by some other person: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 977 ; [1980] 1 All ER 289 at 295; Ramsey v Skyring [1999] FCA 907 ; (1999) 164 ALR 378 at 389 ; [1999] FCA 907 ; Freeman v National Australia Bank Ltd [2006] FCAFC 67 ; (2006) 230 ALR 213 at 218 19 ; [2006] FCAFC 67. The purpose of the powers given under the Rules is to reinforce the power of the court to protect its own processes against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring [1992] HCA 39 ; (1992) 109 ALR 303 at 312; [1992] HCA 39 ; 66 ALJR 810 at 814. This said, an order under the Rules will not lightly be made because of its serious impact on the right of access to the courts of this country.