Mahmoud v Attorney General of New South Wales

1. [1]

   BEAZLEY P: I have had the advantage of reading in draft the reasons of Payne JA. I agree with his Honour’s reasons and proposed orders.

2. [2]

   MACFARLAN JA: I agree with the judgment of Payne JA.

3. [3]

   PAYNE JA: On the application of the Attorney General orders were made by the primary judge against Mr Mahmoud pursuant to ss 8(7)(a) and (b) of the Vexatious Proceedings Act 2008 (NSW) prohibiting him from instituting proceedings in New South Wales without leave, and staying all pending proceedings instituted by him.

4. [4]

   The Attorney General has conceded there was error in some limited respects made by the primary judge which necessitates this Court intervening.

5. [5]

   For the reasons given below, the orders made by the primary judge should be set aside and the more limited orders proposed by the Attorney General should be made. The appeal should otherwise be dismissed.

Nature of this appeal

1. [6]

   This appeal arose under s 101 of the Supreme Court Act 1970 (NSW) from the orders made by the primary judge. The appeal was by way of rehearing in accordance with ss 75A(5) and (6) of that Act: Martin v Attorney General for the State of New South Wales [2014] NSWCA 189 and Viavattene v Attorney General (NSW) [2015] NSWCA 44.

2. [7]

   A question arises about whether leave is required and if so the nature of that leave under the potentially overlapping requirements under s 101(2) of the Supreme Court Act and s 14 of the Vexatious Proceedings Act. In this case the Attorney General concedes there must be a grant of leave under the Supreme Court Act and a waiver of the obligation under s 14 of the Vexatious Proceedings Act if it be applicable.

The concessions made by the Attorney General

1. [8]

   The primary judge made the following orders on 24 September 2015:

2. [9]

   The Attorney General conceded that there should be a grant of leave, and that the appeal should be allowed on the basis that:

   1. (1)

      order (2) was made in error since the Attorney General withdrew her reliance on the prayer seeking a stay under s 8(7)(a) before the primary judge. That withdrawal was made in the Attorney’s written submissions before the primary judge dated 31 March 2015; and

   2. (2)

      order (1) should be varied, on the basis that blanket orders restricting steps taken in defence of criminal proceedings should not be made in this case.

3. [10]

   Those concessions were properly made. It is clear that order (2) was made in error. The Attorney General, in her written submissions in reply dated 31 March 2015, withdrew reliance on her prayer seeking a stay under s 8(7)(a).

4. [11]

   It is equally clear that order (1) should be amended to make clear it does not apply to steps taken in defence of criminal proceedings. Such orders “should never be made, or at least only in extraordinary circumstances which are not readily envisaged”: Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129.

The primary judgment

1. [12]

   The primary judge set out key provisions of the Vexatious Proceedings Act and relevant principles at [18]-[36]. His Honour referred to a number of first instance decisions. Most were decisions of the Supreme Court, some of which pre-dated the Vexatious Proceedings Act. Others were decisions of the Federal Court of Australia, the High Court of England and Wales (Administrative Court), and the High Court of New Zealand.

2. [13]

   The primary judge did not refer to the most recent decisions of this Court concerning the Vexatious Proceedings Act, Potier and Viavattene. Although the latter decision was handed down four days after the hearing before the primary judge, counsel for the Attorney General specifically drew the primary judge’s attention to the decision in supplementary submissions filed on 31 March 2015. Potier was handed down soon after Viavattene, a number of months before judgment in this case was ultimately delivered by the primary judge.

3. [14]

   At [37]-[123] the primary judge summarised Mr Mahmoud’s litigation history, and his submissions in the proceedings before the primary judge. That section was followed by a section entitled “Consideration” in which his Honour expressed his conclusions as to whether, in globo, the proceedings earlier set out were “vexatious proceedings”, and whether an order under the Vexatious Proceedings Act should be made.

4. [15]

   The primary judge concluded that:

   1. (1)

      Mr Mahmoud “has frequently instituted and conducted proceedings as a result of the obsession he has with his perceived grievance against the Executive Committee” [of his former strata residence]. His reactions had “turned into a series of unrestrained and unreasonable proceedings”: [126];

   2. (2)

      the litigation history demonstrates that Mr Mahmoud is “unable to accept the finality of matters decided against him”. The frequency of his initiation of proceedings, “namely the Strata Plan 881, assault and bankruptcy proceedings”, is indicative of his “dogged refusal to accept the conclusiveness of a decision by re-litigating or appealing matters”: [127];

   3. (3)

      Mr Mahmoud has “used the courts as a forum to express extravagant and malicious allegations” without providing supporting evidence: [128];

   4. (4)

      Mr Mahmoud has pursued litigation on behalf of the Owners Corporation [of his former strata residence] despite having no legal authority to commence such proceedings. Mr Mahmoud commenced proceedings on behalf of the Owners Corporation “to harass and annoy the members of the Executive Committee”: [129];

   5. (5)

      Mr Mahmoud has “commenced or pursued litigation without reasonable grounds” and his conduct “constitutes an abuse of the process of a court and tribunal”: [133]; and

   6. (6)

      Mr Mahmoud has pursued applications for judicial or quasi-judicial officers to disqualify themselves, often on the basis of gender and perceived race, “for the purpose of delaying the proceedings and advancing his own interest”: [134].

5. [16]

   Although many of the primary judge’s findings in these paragraphs mirror the language used in ss 6 and 8 of the Vexatious Proceedings Act, his Honour did not specifically relate his findings to those provisions in respect of specific proceedings.

6. [17]

   Nor did the primary judge specifically identify which of Mr Mahmoud’s “proceedings” he considered to be “vexatious proceedings” for the purposes of the Vexatious Proceedings Act.

The Vexatious Proceedings Act

1. [18]

   The power of the Court to make a vexatious proceedings order in relation to Mr Mahmoud was enlivened only if he had “frequently instituted or conducted vexatious proceedings in Australia”: Vexatious Proceedings Act s 8(1)(a).

2. [19]

   The term “vexatious proceedings” is defined in s 6 of the Vexatious Proceedings Act in the following terms:

3. [20]

   The following definitional provisions are also significant:

4. [21]

   The gateway to the making of an order under s 8 is a finding that proceedings are “vexatious proceedings” as defined in s 6. Although the definition of “vexatious proceedings” in s 6 is not expressed to be exclusive, it would no doubt be a rare case where proceedings would be found to be “vexatious proceedings” unless they could fairly be categorised as falling under one of the descriptions in s 6.

5. [22]

   It is plain that the separate paragraphs of s 6 are not to be construed as independent and self-contained categories. Most proceedings which would fall within paragraphs (b) to (d) would constitute an abuse of process for the purposes of paragraph (a). A number of first instance decisions have identified a difference between sub-paragraphs (b) and (d), and in particular whether paragraph (d) requires an investigation into a litigant’s subjective intention; see, for example Pascoe v Liprini [2011] NSWSC 1484 at [10]; Attorney-General v Tareq Altaranesi [2013] NSWSC 63 at [20].

Relevant principles in making an order under the Vexatious Proceedings Act

1. [23]

   In addressing each of the grounds of appeal and the additional submissions made by the Attorney General which were advanced to assist the applicant it is necessary to identify the principles which apply to such applications.

2. [24]

   Those principles were extensively discussed by this Court in Potier and Viavattene.

3. [25]

   In Viavattene Leeming JA addressed the statutory requirements as follows:

   1. (1)

      the issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation:

   2. (2)

      his Honour emphasised that in order to address whether the conduct was vexatious, it is necessary for the court to have regard in detail to the circumstances in which each of the relevant applications was made:

4. [26]

   His Honour in Potier described at greater length the threshold posed by the statutory test of “frequently”, and described the quality of the proceeding which made it vexatious, and the nature of the proceeding itself, as informing the assessment of frequency:

5. [27]

   As to the proportion of proceedings “instituted or conducted” which are vexatious compared with proceedings “instituted or conducted” which do not meet that statutory description, his Honour found that whether the proportion of all proceedings instituted or conducted by the person which are vexatious is high or low does not bear upon that question. That proportion was, however, relevant to the exercise of discretion in making an order:

6. [28]

   I agree with his Honour and will return to this topic after addressing the grounds of appeal.

7. [29]

   Both Potier and Viavattene left unresolved the question of how the conduct of criminal proceedings fell within the scope of the Vexatious Proceedings Act. In Viavattene Basten JA said:

8. [30]

   On the same topic Leeming JA in Potier said:

9. [31]

   In Potier Leeming JA referred to the question of the inter-relationship between the Vexatious Proceedings Act and interlocutory criminal applications arising out of a prosecution brought against a person. His Honour questioned whether such proceedings fell within the definition of “institute” or “conduct” a proceeding:

10. [32]

    I respectfully agree with the doubts expressed by Basten JA and Leeming JA, although the issue is unnecessary to determine in the present case as the Attorney General has conceded that the order made by the primary judge should be amended to make clear that applications made by an accused in the course of criminal proceedings do not fall within the order.

The applicant’s notice of motion

1. [33]

   On 13 September 2016 the applicant handed up in Court a document described as an “amended notice of motion” which sought 11 separate orders as follows:

2. [34]

   To the extent that order 1 in the amended notice of motion sought leave to file this notice of motion in court together with an affidavit in support, that relief should be granted. The notice of motion should otherwise be dismissed with costs. My reasons for proposing these orders can be expressed briefly.

3. [35]

   Proposed orders 5, 6 and 8 all related to the alleged falsification of the transcript of proceedings before the primary judge. As I have found below, those complaints are without substance. In any event, all of the suggested changes to the transcript proposed by the applicant have been accepted by the Attorney General. None are material. The complaints made by the applicant about the “abominable crimes of the falsifications of the transcripts” (in proposed order 8) are completely without substance. The application to make a separate recording of the proceedings before the Court of Appeal (proposed order 6) was not renewed orally. If it had been it would have been refused. There is no warrant for thinking that the transcription provided was other than efficient, fair and accurate in all material respects.

4. [36]

   Proposed orders 2, 3 and 4 each complain about the conduct of a Registrar of the Court (and orders made by him) in directions hearings prior to the appeal. There was no coherent reason advanced in support of those orders. Those orders should not be made. The conduct of the Registrar revealed in the record was both patient and fair to both parties.

5. [37]

   Each of the remaining orders sought was addressed by the notice of appeal and the amended notice of motion was needlessly repetitive. Proposed order 7 overlapped in whole with appeal grounds B and D which I address below. Proposed orders 9 and 10 overlapped in whole with the relief sought in the notice of appeal. Proposed order 11 overlapped in whole with appeal ground L which I address below. Given the conclusions I have reached about those matters in the body of these reasons, there is no basis on which to grant the relief sought in the motion.

Consideration of the grounds of appeal

1. [38]

   The applicant raised twelve separate grounds of appeal. For the reasons below, most are without merit. There are, however, issues with the decision of the primary judge and its incompatibility with the aspects of the reasoning in the decisions of this Court in Potier and Viavattene to which the Attorney General has drawn attention.

2. [39]

   According to the most recent draft notice of appeal the applicant seeks only that order (1) be set aside. The applicant also seeks indemnity costs “of the proceedings in the court below and in this Court of Appeal” in the amount of $170,101.

3. [40]

   This ground complains about the volume of the Attorney General’s evidence (eight folders) and the fact that the Attorney General relies on material dating back almost two decades.

4. [41]

   The Attorney General submitted that the volume of evidence “is by no means unmanageable”, particularly in light of the fact that Mr Mahmoud had “over 17 months to consider it”. That submission should be accepted.

5. [42]

   The volume of evidence is an unavoidable feature of proceedings under the Act. The Attorney General made it clear the evidence she was relying on in support of the making of an order under the Act. There was no unfairness to the applicant by reason of the volume of material in circumstances where he was aware of that material long prior to the hearing.

6. [43]

   The applicant’s submission that the material relied upon was too old to ground an order under the Act should be rejected. The age of the material relied upon is relevant to whether a person has “frequently” instituted proceedings within the meaning of s 8(1)(a) and, depending on the age of the material, may be highly relevant to the exercise of the discretion to make the order sought under the Act. The age of the litigation relied upon in the present case was no barrier to its consideration by the primary judge.

7. [44]

   Appeal ground A should be dismissed.

8. [45]

   These appeal grounds concern this Court’s decision in Viavattene, which the applicant submitted the primary judge should have referred to and applied. The high point of the applicant’s submission was that Viavattene requires a detailed consideration of the circumstances in which a litigant’s applications were made. The applicant’s complaint was that the primary judge did not undertake the detailed consideration of the individual proceedings alleged to be vexatious that Viavattene requires. Mr Mahmoud also submitted that the primary judge based his decision in part on old cases which Mr Mahmoud did not still have records of; and that a judgment in Mr Mahmoud’s favour was omitted from the evidence before the primary judge.

9. [46]

   The Attorney General properly brought to the attention of the Court a problem with the way the primary judge described all the proceedings at [37]-[123].

10. [47]

    Under the heading “Consideration” the primary judge did not specifically identify which of the earlier mentioned proceedings he considered vexatious. This was not in accordance with the decision of this Court in Viavattene or the requirements of the Vexatious Proceedings Act.

11. [48]

    The Attorney General’s submission that it was sufficient that the primary judge made clear which proceedings he considered to be vexatious by reference to features of the proceedings rather than to specific proceedings should be rejected. The remarks of Leeming JA in Viavattene on this topic bear repeating:

12. [49]

    In the present case it was not sufficient for the primary judge to discern a pattern or a series of features of the proceedings as a whole described at a level of generality. That is what the primary judge did at [37]-[123]. As in Viavattene, it was necessary in the present case to have regard in more detail to the circumstances in which the applications were made and to identify which proceedings were in fact vexatious. This latter finding is also highly relevant to the exercise of determining the proportion of vexatious proceedings, a matter important to the exercise of discretion. Further, the findings made by the primary judge were expressed at a global level, without explaining how it was that particular proceedings were vexatious proceedings and how those proceedings fitted the description of “frequently instituted or conducted vexatious proceedings in Australia”: Vexatious Proceedings Act s 8(1)(a).

13. [50]

    Grounds B and K of the appeal should be upheld. The primary judge failed properly to apply the test explained in Viavattene.

14. [51]

    In addition, the Attorney General made detailed submissions about an aspect of the primary judge’s decision in the light of Viavattene about which Mr Mahmoud has not complained.

15. [52]

    The issue is as follows. Under s 8(1) of the Act the Court can make orders if it is satisfied that the person “frequently instituted or conducted vexatious proceedings”. The s 6 definition of “vexatious proceedings” is extracted above.

16. [53]

    There is an issue as to whether ss 6(d), proceedings “conducted in a way so as to harass or annoy, to cause delay or detriment, or for another wrongful purpose” …“requires an investigation into a litigant’s intention”, or “requires an objective inquiry into the effect and consequence of the conduct”. First instance authority favours the objective test. In Viavattene Basten JA expressed doubts about the correctness of that authority at [14]-[22]. Beazley P did not consider that Basten JA’s construction was necessarily correct at [4]. Both were of the view that Viavattene was not the appropriate occasion to determine the question. Leeming JA did not address the issue. The primary judge applied the objective test favoured by first instance authority: at [30].

17. [54]

    The Attorney General submitted that the present appeal was not a suitable vehicle to resolve the issue. In the present case, the relevant “conduct would fall within section 6(d) regardless of how the subsection might be interpreted” (italics added).

18. [55]

    When the primary judge considered what conduct would fall within s 6(d) his Honour did so “in terms that indicate a finding that the conduct was intentional”. At [129] the primary judge found that proceedings were pursued “to harass and annoy” certain individuals. At [134] his Honour found that the proceedings were commenced “for the purpose of delaying the proceedings”.

19. [56]

    These findings as to intention were not challenged by the applicant. The Attorney General’s submission that the present is not an appropriate case to determine this issue should be accepted.

20. [57]

    These appeal grounds concern the alleged falsification of the transcript before the primary judge.

21. [58]

    The Attorney General did not oppose the corrections to the transcript proposed by the applicant which were provided to the Court as a marked-up version of the transcript putting those corrections into effect.

22. [59]

    There is no substance in the applicant’s complaint. Having carefully considered those transcript corrections, the suggestion that the transcript was deliberately “falsified” is without foundation. Most, if not all of the corrections were immaterial and none played any part in any question of substance raised by either party on this appeal.

23. [60]

    Grounds C and E of the notice of appeal should be rejected.

24. [61]

    This appeal ground concerns the applicant’s alleged difficulty in obtaining audio recordings of the hearing before the primary judge.

25. [62]

    It is clear that the applicant obtained the audio recordings long before the appeal and he has made suggestions about incorrect transcriptions. The Attorney General did not oppose the making of all the suggested corrections, but submitted that none of them demonstrate error.

26. [63]

    Ground D of the notice of appeal should be rejected. Whatever difficulties existed in the past about access to audio recordings, they had been resolved long prior to the hearing of the appeal.

27. [64]

    This appeal ground concerned the Registrar’s alleged decision to contact the Crown Solicitors Office on a number of occasions when solicitors representing the Attorney General are said by the applicant to have failed to appear in court. The applicant submitted that the Registrar afforded the Attorney General “special and privileged treatment”.

28. [65]

    The Attorney General submitted it was within the Registrar’s powers of case management to form the view that the most efficient way to proceed was to telephone the Crown Solicitors Office.

29. [66]

    It is a commonplace occurrence for a Registrar of this Court to contact a party about listing matters. Even if the Registrar had acted as alleged by the applicant this would be no basis for setting aside the primary judge’s decision. There was no arguable unfairness to the applicant in the conduct described. Ground F should be rejected.

30. [67]

    This appeal ground concerned Ms Hartman, a solicitor representing the Attorney General. The applicant alleged that Ms Hartman told a Registrar at a directions hearing that the Attorney General would rely on 4 cm of material. In fact the Attorney General relied upon 41 cm of material weighing 17 kg. The applicant alleged that Ms Hartman thereby misled the court.

31. [68]

    The Attorney General submitted that the applicant may have misunderstood what Ms Hartman was saying to the Registrar.

32. [69]

    Ground G should be rejected. Assuming, without deciding, that a solicitor at an early directions hearing had mis-described the quantity of evidence which was ultimately filed, that would provide no basis for concluding that the primary judge erred in his decision. There was no unfairness to the applicant in the conduct he described under this ground of appeal.

33. [70]

    Under this appeal ground the applicant submitted that he was denied a fair trial and procedural fairness because he was unrepresented. He submitted that he had a right to a lawyer and the matter should not have proceeded since he was unrepresented.

34. [71]

    The Attorney General submitted that the fact the applicant was unrepresented did not, of itself, establish that he was denied a fair trial and provides no independent basis for allowing the appeal.

35. [72]

    The Attorney General’s submission should be accepted. The relevant history of the relationship between legal representation and the right to a fair trial, in the context of a serious criminal offence, is set out in the decisions of the High Court in McInnis v R (1979) 143 CLR 575 at 579, 581 583 and 592 and Dietrich v The Queen (1992) 177 CLR 292 in particular at 298, 317, 325, 330, 354 and 364. In Dietrich, Deane J explained, at 330, that while there is no general principle that an accused’s inability to obtain legal representation has the consequence that the trial is unfair, it is possible in some circumstances that a lack of legal representation will lead to such unfairness that a trial will miscarry. This principle has not, to date, been applied outside the context of a criminal trial.

36. [73]

    There is no warrant for concluding in the present case that the mere fact that the applicant was not legally represented gave rise to a denial of a fair trial and / or a failure to afford procedural fairness. The applicant did not point to any additional matter under this ground, beyond the bare fact that he was unrepresented. Ground H should be dismissed.

37. [74]

    Appeal ground I concerns the applicant’s alleged health issues. The applicant submitted that the primary judge erred in “denying in his Judgment that I adduced evidence of my ill health and medical experts”. He asserted that the proceedings should not have proceeded due to his ill health. The applicant relied upon some medical evidence at Red 172 and 175, which I will assume, without deciding, was before the primary judge.

38. [75]

    The Attorney General submitted that the applicant’s assertions about his health do not establish error, or that he was unfit to appear for himself.

39. [76]

    There was no error shown in the primary judge’s approach to the applicant’s health issues. Assuming, without deciding, that the medical evidence at Red 172 and 175 was before the primary judge, no error has been shown in the primary judge deciding to proceed with the hearing, particularly given that the medical reports, dated 24 March 2014 and 12 September 2013, and were based on reports of medical impairment in 2011, three years prior to the trial. That evidence was insufficient to lead to any other conclusion.

40. [77]

    This appeal ground concerns publicity. The applicant submitted that the primary judge erred in ignoring evidence of adverse publicity, which the applicant says may have caused the “lower court” (it is not clear which one) to be prejudiced against him. The relevant material appears to be at Red 179 ff. It is not clear whether the material to which the applicant referred was before the primary judge. For present purposes I will assume that it was.

41. [78]

    The Attorney General submitted that adverse publicity provided no reason to overturn the primary judgment.

42. [79]

    The primary judge acknowledged some adverse publicity but concluded that it did not “alleviate the issues with which the Court must be concerned”: see [118]. That conclusion was correct. There was nothing in the material referred to supporting any suggestion of an unfair trial. Ground J should be rejected.

43. [80]

    This ground concerns costs. The applicant, who was not a legal practitioner, submitted that he was entitled to indemnity costs in respect of the proceedings below and the appeal.

44. [81]

    Cachia v Hanes (1994) 179 CLR 403 binds this Court to conclude that a non-legally qualified self-represented litigant was not entitled to an award of costs. Appeal ground L must be rejected.

45. [82]

    The Attorney General also pointed out that in Potier, in a passage quoted above at [27] Leeming JA said that the proportion of proceedings which are vexatious is “highly relevant” to the exercise of the discretion to make orders under the Act. The primary judge noted Mr Mahmoud’s success in two proceedings at [14]. Mr Mahmoud identified a number of other successful or not vexatious proceedings, and the Attorney General accepted that these proceedings should be taken into account by the Court in relation to the re-exercise of the discretion.

46. [83]

    The Attorney General submitted that if error was established the Court could either remit or re-exercise the discretion itself. In addressing that question, in addition to the material before the primary judge, the Attorney General relied upon Mr Mahmoud’s conduct in the appeal proceedings, and submitted that the material he filed was “unnecessarily voluminous” and contained “scandalous allegations with little or no support”.

47. [84]

    Error having been established, the question is whether the Court should remit the matter to the Common Law Division for determination or determine the matter itself. The Attorney General’s primary position was that the matter should be remitted.

48. [85]

    Generally, the Court will not remit a matter for a new trial unless satisfied that some substantial wrong or miscarriage has been occasioned which requires that course to be taken: Uniform Civil Procedure Rules 2005 (NSW) r 51.53. Where the Court is able to dispose of the matter on the merits without remittal, it should do so consistently with the overriding purpose of the Civil Procedure Act 2005 (NSW) (s 56) and the UCPR: Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224 at [77] (Basten JA, Gleeson JA agreeing).

49. [86]

    In the present context, it is clear that this Court should, if it can, re-exercise the discretion to make orders under the Vexatious Proceedings Act: Viavattene at [73], Potier at [38].

Whether the proceedings brought or conducted by Mr Mahmoud were “vexatious proceedings”?

1. [87]

   The critical question is whether Mr Mahmoud frequently instituted or conducted vexatious proceedings in Australia. This section of my reasons sets out all of Mr Mahmoud’s applications. Not every application was relied upon by the Attorney General as vexatious. In at least one important case the applicant was successful in obtaining an award of damages.

2. [88]

   On 18 July 2000 Ms Bodeker, Ms Rothwell and Mr Schwartz made an application to the Strata Schemes Board for the appointment of a managing agent for the Owners Corporation, Strata Plan 811. The proceedings were not commenced by Mr Mahmoud. On 11 November 2000 Mr Mahmoud sought an adjournment and sent a letter asserting that the member of the Strata Schemes Board was biased. Mr Mahmoud’s application for an adjournment was successful.

3. [89]

   On 30 May 2001 the Owners Corporation applied for orders that Mr Mahmoud be prevented from doing certain acts in respect of his lot. The proceedings were not commenced by Mr Mahmoud. On 23 August 2001 the Strata Schemes Adjudicator made orders against Mr Mahmoud. On 21 September 2001 Mr Mahmoud sought to appeal from that order and sought a stay. On 27 June 2002 the CTTT dismissed the appeal because Mr Mahmoud did not appear. The CTTT said “there being no appearance of the applicant, the Tribunal finds the application to be lacking in substance”.

4. [90]

   On 6 August 2002 Mr Mahmoud applied for a rehearing of the appeal. On 27 August 2002 the CTTT refused Mr Mahmoud’s application for a rehearing. The CTTT said that Mr Mahmoud was advised of the original hearing and that no injustice had been demonstrated.

5. [91]

   In late 2003 Mr Mahmoud brought four sets of proceedings in the Strata Schemes Board in the name of the Owners Corporation against Ms Bodeker (lot owner), Mr Wolody (strata agent) and Mr Wise (real estate agent). On 29 April 2004 all four proceedings were dismissed. In the reasons for each decision the Adjudicator observed there was nothing to support Mr Mahmoud’s claim that the application could properly be brought in the name of the Owners Corporation.

6. [92]

   On or prior to 15 July 2004 Mr Mahmoud purported to bring appeals on behalf of the Owners Corporation. On 15 July 2004 the CTTT dismissed Mr Mahmoud’s appeals and said that Mr Mahmoud “was unable to produce any evidence to establish that the Owners Corporation had authorised these proceedings”.

7. [93]

   On 5 August 2004 Mr Mahmoud purported to bring an application for a rehearing of the appeal brought on behalf of the Owners Corporation. On 10 August 2004 Mr Mahmoud’s application was dismissed. The CTTT said “the appeals provisions in the CTTT Act 2001 cannot be used in these circumstances to re-agitate the strata determination made on 15/7/04”.

8. [94]

   On 15 December 2004 Mr Mahmoud purported to bring an application in the CTTT on behalf of the Owners Corporation against Ms Bodeker. On 7 March 2005 the CTTT dismissed the application. The CTTT was “not satisfied the applicant has the authority to represent the Owners Corporation”.

9. [95]

   Each of the proceedings commenced on 11 November 2000, 21 September 2001 and 6 August 2008 was not vexatious.

10. [96]

    The remaining proceedings, namely those commenced in late 2003, on 15 July 2004, 5 August 2004 and 15 December 2014, were vexatious under ss 6(a), 6(c) and 6(d) of the Vexatious Proceedings Act.

11. [97]

    Each of the proceedings was commenced in the name of the Owners Corporation. There was nothing then relied upon by the applicant (and nothing advanced since) which provided any possible support for the view that the applicant was entitled to bring proceedings in the name of the Owners Corporation.

12. [98]

    Each of the proceedings was characterised by the prolixity and extravagance of the allegations made by the applicant. For example, the applicant claimed that:

13. [99]

    The proceedings commenced in late 2003, on 15 July 2004, 5 August 2004 and 15 December 2014 were each instituted and pursued without reasonable grounds. They were conducted in a way so as to harass or annoy. They were an abuse of process.

14. [100]

    On 5 September 2003 Mr Mahmoud commenced proceedings at the Downing Centre Local Court in the name of the Owners Corporation against Ms Luke, a lot owner, for recovery of an allegedly outstanding maintenance contribution. On or about 1 October 2003 Mr Le Page, the solicitor for the Owners Corporation, filed a notice of discontinuance. By letter to the Local Court Mr Mahmoud described the notice of discontinuance as “false and incorrect”. On 13 November 2003 the Local Court dismissed Mr Mahmoud’s claim, finding that the strata management agent has authority to commence proceedings in the name of the Owners Corporation.

15. [101]

    On 11 December 2003 Mr Mahmoud commenced proceedings by summons in the NSW Supreme Court seeking to set aside the order of the Local Court. There was correspondence between various parties, including the Registrar of the Supreme Court, calling into doubt Mr Mahmoud’s authority to commence proceedings on behalf of the Owners Corporation. On 16 January 2004 the Owners Corporation filed a motion seeking leave to discontinue the proceedings. On 12 March 2004 the Registrar held that Mr Mahmoud did not have standing to appear for the Owners Corporation, and his summons was dismissed with costs.

16. [102]

    The proceedings commenced on 5 September 2003 and 11 December 2003 were vexatious under ss 6(a), 6(c) and 6(d) of the Vexatious Proceedings Act. The proceedings were each instituted and pursued without reasonable grounds. They were conducted in a way so as to harass or annoy. They were an abuse of process.

17. [103]

    The nature of the extravagant allegations made about the conduct of the presiding magistrate by the applicant bears repeating:

18. [104]

    To describe the presiding magistrate as motivated by “her real evil”, “her hatred” and “her complete personal incompetence” is not only grossly insulting and unfair but, on the evidence as presented, completely without justification.

19. [105]

    The conclusion that the proceedings were “vexatious”, as defined, under ss 6(a), 6(c) and 6(d) is inevitable.

20. [106]

    On 19 December 2003 Mr Mahmoud commenced proceedings in the Parramatta Local Court in the name of the Owners Corporation against Ms Hunter, a lot owner, for an allegedly unpaid maintenance contribution. Mr Mahmoud initially succeeded in obtaining default judgment. However, on 4 February 2004 Mr Le Page informed the Local Court that Mr Mahmoud commenced the proceedings without the authority of the Owners Corporation and filed a notice of discontinuance. Mr Mahmoud wrote to the Local Court and described the notice of discontinuance as “false and incorrect”. On 13 April 2004 Ms Hunter made an application to have the default judgment set aside. On 31 May 2004 the Local Court ordered that the judgment be set aside.

21. [107]

    On 28 June 2004 Mr Mahmoud commenced proceedings by summons in the NSW Supreme Court seeking to have the Local Court’s order set aside. On 16 August 2004 the court made orders that the proceedings be discontinued. Mr Mahmoud attempted to file a further notice of motion which was rejected by the Registrar.

22. [108]

    Mr Mahmoud’s commencement of Local Court proceedings, on 19 December 2003, purportedly in the name of the Owners Corporation, despite Mr Mahmoud lacking authority to represent that entity, was vexatious pursuant to ss 6(a), (c) and (d).

23. [109]

    His continuation of those proceedings in the Supreme Court was also vexatious pursuant to ss 6(a), (c) and (d) of the Vexatious Proceedings Act.

24. [110]

    In the Supreme Court proceedings the applicant stated:

25. [111]

    The proceedings were each instituted and pursued without reasonable ground. They were conducted in a way so as to harass or annoy. They were an abuse of process.

26. [112]

    On 18 July 2000 Mr Wise commenced proceedings seeking an AVO against Mr Mahmoud. Various interim orders were made against Mr Mahmoud. In that context, on 26 July 2000 Mr Mahmoud commenced proceedings seeking AVOs against members of Mr Wise’s family. On 27 August 2001 Mr Mahmoud’s applications were dismissed.

27. [113]

    On 24 January 2001 Ms Bodeker commenced proceedings seeking an AVO against Mr Mahmoud. On 15 February 2001 Mr Mahmoud commenced proceedings seeking an AVO against Ms Bodeker. On 23 February 2001 the matter was heard. According to a letter from Mr Mahmoud to the Chief Magistrate of NSW, on that date he made an application to proceed in the absence of Ms Bodeker, which was refused. The matter came before the court again on 16 March 2001. After the hearing, by letter dated 4 April 2001 to the Chief Magistrate of NSW, Mr Mahmoud alleged that the magistrate had been biased and racist. On 10 April 2001 Mr Mahmoud wrote to the Clerk of the Local Court at Burwood asking that all judges of that court be disqualified from hearing any of his matters.

28. [114]

    The Attorney General submitted that in relation to the AVO proceedings Mr Mahmoud’s application on 23 February 2001 for his application for an AVO against Ms Bodeker to proceed in the absence of the defendant was vexatious pursuant to ss 6(c) and (d). The Attorney General also submitted that Mr Mahmoud’s applications on 4 April and 10 April 2001, that certain magistrates be disqualified for bias or racism, were vexatious pursuant to ss 6(c) and (d).

29. [115]

    The conduct of the proceedings commenced on 15 February 2001 was vexatious, as evident in Mr Mahmoud’s letter to the Clerk at Burwood Court This letter is just one example of the applicant’s vexatious conduct:

30. [116]

    To repeatedly assert, without any basis, that all the judges of a busy Local Court should be disqualified because of racial discrimination is vexatious. The proceedings were each instituted and pursued without reasonable ground. They were conducted in a way so as to harass or annoy. They were an abuse of process.

31. [117]

    The 26 July 2000 AVO proceedings were not vexatious.

32. [118]

    On 1 December 2003 the Owners Corporation obtained judgment in the Local Court against Mr Mahmoud for unpaid fees, interest and costs. On 29 December 2003 Mr Mahmoud wrote to the Clerk of the North Sydney Local Court, purportedly on behalf of the Owners Corporation, stating that the Owners Corporation “made a decision to disclaim all payments of all sorts made against [Mr Mahmoud]” and that the matter was closed. On 21 January 2004 Mr Mahmoud wrote to the NSW Office of the Legal Services Commissioner, purportedly on behalf of the Owners Corporation, to complain about the Corporation’s solicitor, Mr Le Page. He accused Mr Le Page of “imposing himself on us illegally”, “making false representation to courts” and “colluding and conspiring”.

33. [119]

    The Attorney General submitted that Mr Mahmoud’s assertions that he acted for the Owners Corporation and that the matter should be discontinued were vexatious pursuant to s 6(d); and that Mr Mahmoud’s allegations against the Owners Corporation’s solicitor Mr Le Page were also vexatious pursuant to s 6(d).

34. [120]

    Mr Mahmoud’s conduct regarding the Local Court claims against him, and the Owners Corporation’s solicitor were vexatious under ss 6(a) and (d) of the Vexatious Proceedings Act.

35. [121]

    Reference to a small part of the applicant’s submissions in the Local Court bear out that conclusion:

36. [122]

    The applicant’s conduct of the defence of the proceedings against him in the Local Court, and the completely unwarranted submissions made about the conduct of judicial officers, was such as to harass or annoy. That conduct was also an abuse of process.

37. [123]

    On 22 May 2003 an altercation took place between Mr Mahmoud and Ms Binns.

38. [124]

    On 30 May 2003 Mr Mahmoud commenced private prosecution proceedings against Ms Binns for assault. On 23 January 2004 a magistrate dismissed the proceedings, saying “I am not satisfied that the charge of assault and the elements of the offence have been made out to the proper criminal standard of beyond a reasonable doubt and I have no hesitation in dismissing this matter”.

39. [125]

    The applicant was charged with assault arising out of the same incident.

40. [126]

    On 8 November 2003, at a hearing before Magistrate Schurr, Mr Mahmoud made an application that the magistrate disqualify herself for apprehended bias (Mr Mahmoud described himself as the victim of an “evil feminist racist” and said “I am asking for disqualification of yourself, without any offence, and to be replaced by a man, for my protection, because this case involves feminism and a very detailed criticism of the feminist movement altogether”). The Magistrate refused the application.

41. [127]

    On 28 June 2004 Mr Mahmoud commenced proceedings by summons in the Supreme Court of NSW seeking orders that his prosecution in the Local Court be aborted. The ground Mr Mahmoud relied upon was in the following terms:

42. [128]

    Adams J dismissed Mr Mahmoud’s application, noting that the ground relied upon did not give rise, on the face of it, to any reasonable apprehension that any magistrate is biased or prejudiced.

43. [129]

    On 2 July 2004 Mr Mahmoud’s trial commenced. Mr Mahmoud made an application for a stay of the proceedings and for the magistrate to disqualify himself. Both applications were refused. The record indicates that Mr Mahmoud left the courtroom at that stage. The magistrate found Mr Mahmoud guilty.

44. [130]

    On 29 July 2004 Mr Mahmoud commenced appeal proceedings in the District Court against his conviction. On 18 February 2005 Mr Mahmoud withdrew his appeal in the District Court and the orders of the Magistrate were confirmed.

45. [131]

    On 30 November 2004 Mr Mahmoud commenced proceedings by summons in the Supreme Court of NSW seeking an order that his conviction in the Local Court be “dismissed” and that the police prosecutor pay him $25,000 in costs. The summons referred to “The vicious hostile misleading feminist propaganda indoctrinating posters”, “The Underground Feminist Organization (The UFO)” and abuse of process. Multiple amended summonses were filed. On 1 February 2005 Barr J dismissed the summons on the basis that the District Court was the proper forum for an appeal from the Local Court and that Mr Mahmoud would receive a fair hearing according to law in the District Court. (It is to be noted that Mr Mahmoud only withdrew his appeal in the District Court after Barr J delivered judgment).

46. [132]

    On 16 May 2005, after withdrawing his appeal in the District Court, Mr Mahmoud again commenced proceedings by summons in the Supreme Court seeking essentially the same relief as that previously sought. On 7 February 2006 Hoeben J dismissed Mr Mahmoud’s summons. His Honour said “none of the allegations made by the plaintiff raise any proper issue as to the fairness or adequacy of the proceedings before the Local Court on 2 July 2004 as a result of which he was convicted of assault”.

47. [133]

    On 30 June 2006 Mr Mahmoud made an application to the Local Court for an annulment of his conviction. It does not appear that orders were made.

48. [134]

    In my view:

    1. (1)

       Mr Mahmoud’s applications made on 7 November 2003 and 2 July 2004 that magistrates disqualify themselves on the basis of actual bias were vexatious pursuant to ss 6(c) and (d);

    2. (2)

       Mr Mahmoud’s 28 June 2004 Supreme Court application for the “abortion” of his Local Court prosecution was vexatious, due to the nature of his evidence and submissions, pursuant to ss 6(a), (c) and (d):

    3. (3)

       the appeals commenced by Mr Mahmoud on 29 July 2004, 30 November 2004 and 16 May 2005 were vexatious pursuant to s 6(c); and

    4. (4)

       Mr Mahmoud’s affidavits and submissions in these proceedings, contained a number of serious allegations made without supporting evidence and were vexatious pursuant to s 6(d).

49. [135]

    The private prosecution commenced by Mr Mahmoud on 30 May 2003, and his application for an annulment of his assault conviction commenced on 30 June 2006 were not vexatious proceedings, as the Attorney General conceded.

50. [136]

    On 14 July 2003 Mr Mahmoud commenced proceedings in the Industrial Relations Commission against the NSW Department of Education and Training for unfair dismissal. He filed multiple motions seeking a variety of remedies, including $300,000 for psychological and physical injuries, $28,000 for costs, $790 for stationery and $900,000 compensation for “damage to his livelihood and work everywhere”. On 24 March 2006 the Commission dismissed Mr Mahmoud’s application.

51. [137]

    The finding of the Commission, in respect of the altercation with Ms Binns, bears repeating:

52. [138]

    The Commission also noted that various remedies sought were beyond the Commission’s power.

53. [139]

    There was nothing proffered by the applicant in evidence in these proceedings which provided any support for these serious allegations.

54. [140]

    In my view, the following aspects of the applicant’s conduct of these proceedings were vexatious under ss 6(c) and (d):

    1. (1)

       making extravagant claims for damages;

    2. (2)

       filing lengthy written submissions with abundant irrelevant material; and

    3. (3)

       making allegations without any objective basis of a conspiracy or a “feminist, racist plot”.

55. [141]

    On 25 May 2005 a sequestration order was made against Mr Mahmoud’s estate in the Federal Magistrates Court. On 12 December 2005 the Official Trustee commenced proceedings in the Supreme Court for possession of Mr Mahmoud’s unit. These matters proceeded in parallel.

56. [142]

    On 16 May 2006 Mr Mahmoud made an application for an annulment of the sequestration order. He also sought various other interim and final orders, including a stay of proceedings in the Supreme Court (proceedings for possession of his unit – see below), an order for a grant of Legal Aid, an order that the “opponents of Tosson Mahmoud calling themselves the owners’ corporation 811” were an illegitimate body, an order that he did not owe any money as stated in the creditor’s petition because the costs order in the Supreme Court relied upon therein was a “very severe miscarriage of justice” and an order that he had paid all levies in respect of the Owners Corporation. On 23 May 2006 Barnes FM dismissed the application in respect of the interim orders sought. At the hearing it emerged that Mr Mahmoud had not served the petitioning creditor, the Owners Corporation, but told the Court that as chairman and treasurer of the Owners Corporation he was the person who must be served.

57. [143]

    On 6 June 2006 Mr Mahmoud filed a notice of motion seeking a stay of the Supreme Court proceedings pending the hearing of his annulment application in the Federal Magistrates Court. On 19 June 2006 Rothman J dismissed the application. His Honour reiterated that Mr Mahmoud should file documents addressing the issues in the Supreme Court proceedings rather than the Federal Magistrates Court proceedings.

58. [144]

    On 13 June 2006 Mr Mahmoud filed in the Federal Court an application for leave to appeal from the judgment of Barnes FM. On 30 June 2006 Conti J dismissed Mr Mahmoud’s application in the following terms: “Application for leave to the applicant to issue proceedings against the respondent be declined”. His Honour recorded that Mr Mahmoud sought to establish that he was authorised to act on behalf of the Owners Corporation, and had signed a notice of appearance on behalf of the Owners Corporation; and that he asserted illegality and impropriety in respect of the hearing before Barnes FM, but was unable to articulate any bases in law for that “sweeping allegation”. He said “I am simply unable to distil any conceivably viable basis for the grant of any juridical relief, at least by this Court”.

59. [145]

    On 4 September 2006 Tamberlin J in the Federal Court dismissed Mr Mahmoud’s application for leave to appeal with costs. Mr Mahmoud argued that because a representative of Insolvency Trustee Services Australia was present at the hearing before Barnes FM, the decision should be set aside because ITSA had no status to attend the hearing. Tamberlin J did not consider than an appeal on this ground had any reasonable prospect of success.

60. [146]

    On 7 August 2006 Mr Mahmoud commenced proceedings by way of summons for leave to appeal in this Court seeking leave to appeal from the decision of Rothman J of 19 June 2006. He also filed a notice of motion seeking a stay of the Supreme Court proceedings pending determination of the application for leave to appeal. On 14 August 2006 Mason P dismissed the notice of motion, describing the application as misconceived. On 10 November 2006 McColl and Basten JJA dismissed Mr Mahmoud’s summons. Their Honours commented that Mr Mahmoud’s submissions “deal with irrelevant matters”.

61. [147]

    On 24 October 2006 Mr Mahmoud commenced proceedings by summons in the Supreme Court seeking an order that the practicing certificate of Mr Le Page, the solicitor for the Owners Corporation, be cancelled. Mr Mahmoud’s affidavit in support contained allegations that a gang was invading the strata plan, bribing police and that a psychiatric hospital unit was attempting to label him as mentally ill; and that Mr Le page had illegally and fraudulently represented the Owners Corporation in court proceedings. On 4 December 2006 Adams J struck out Mr Mahmoud’s summons.

62. [148]

    At some time prior to 25 October 2006 Mr Mahmoud made an application for an adjournment of his annulment application in the Federal Magistrates Court. Lucev FM dismissed the application. He recorded that this was the third adjournment sought and that Mr Mahmoud had not complied with directions for the filing and service of evidence. Ultimately on 7 December 2006 Lucev FM dismissed Mr Mahmoud’s annulment application, noting that “The Applicant has tendered no admissible evidence in support of the application”. The proceedings were adjourned to a later date to deal with other orders sought by Mr Mahmoud.

63. [149]

    On 14 November 2006 Rothman J struck out Mr Mahmoud’s defence in the Supreme Court proceedings. On 9 January 2007 Mr Mahmoud filed a notice of motion in the Supreme Court seeking a stay of the writ of possession. On 12 January 2007 Hall J dismissed Mr Mahmoud’s motion. Mr Mahmoud had argued that he intended to commence appeal proceedings against Rothman J’s decision of 14 November 2006, but was unable to do so due to medical difficulties. Hall J was not satisfied that the medical evidence provided a sufficient explanation for the failure to file any process in the Court of Appeal.

64. [150]

    On 12 February 2007 Mr Mahmoud filed a further notice of motion in the Supreme Court seeking an order that the notice to vacate be stayed until the finalisation of proceedings in the Federal Magistrates Court; and “a ruling that it is torture to the Claimant to keep him engaged in” various court proceedings, given his medical condition. On 14 February 2007 Studdert J dismissed Mr Mahmoud’s motion.

65. [151]

    On 27 March 2007 Lucev FM heard the remainder of Mr Mahmoud’s application (e.g. orders for Legal Aid, for declarations concerning the Owners Corporation, costs, etc). At the hearing Mr Mahmoud made oral applications to file a notice of motion and affidavit in court; and for Lucev FM to disqualify himself on the basis of bias on the basis of race and an alleged “criminal conspiracy”. Those applications were dismissed. On 18 October 2007 Lucev FM dismissed the remaining prayers in Mr Mahmoud’s application, because there was no evidence filed, the court did not have power to grant the relief sought, and the relief sought was inconsistent with the dismissal of Mr Mahmoud’s annulment application.

66. [152]

    Mr Mahmoud’s conduct in seeking to re-litigate in each of the bankruptcy proceedings cases above the underlying claims by the Owners Corporation that led to the bankruptcy – all of which were dismissed – were vexatious pursuant to s 6(c) and Mr Mahmoud’s lengthy and irrelevant submissions and affidavits were vexatious pursuant to s 6(d).

67. [153]

    On 12 December 2009 Mr Mahmoud commenced AVO proceedings in the Local Court against Mr Sutherland, another resident in the complex in which Mr Mahmoud was living. On 6 January 2010 an interim AVO was made, however on 20 April 2010 Magistrate Heilpern dismissed the application with costs. The transcript records that Mr Mahmoud refused to answer certain questions under cross-examination.

68. [154]

    On 20 April 2010 Mr Mahmoud filed a notice of appeal in the District Court. Ultimately on 6 May 2011 Knox DCJ dismissed Mr Mahmoud’s appeal. In respect of costs Knox DCJ held that s 99(3) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) permitted the award of costs if the complaint was frivolous or vexatious, and that there was a clear inference that this was the basis on which the costs order was made by Magistrate Heilpern.

69. [155]

    On 14 July 2010 Mr Mahmoud filed a notice of motion in the District Court seeking orders in relation to the transcript and audio recording of the hearing before Magistrate Heilpern. On 11 October 2010 Mr Mahmoud filed a further notice of motion in similar terms. The motion alleged the magistrate “stated very unashamedly blunt lies”. On 27 October 2010 King DCJ dismissed the later motion. His Honour said “None of the assertions made by the applicant in relation to what he claims was really said were germane in any way to the decision made by the magistrate in relation to the refusal of the application, that refusal being based on the applicant’s refusal to answer questions asked by counsel for the respondent which were relevant and appropriate”.

70. [156]

    On 12 November 2010 Mr Mahmoud filed a summons in this Court seeking a prerogative writ setting aside the orders made by King DCJ. On 18 March 2011 this Court dismissed Mr Mahmoud’s summons. Sackville AJA said that Mr Mahmoud’s submissions made unsubstantiated allegations of misconduct against judges, transcript writers and others, and that it was inappropriate for a litigant to make such allegations without cogent evidence.

71. [157]

    On 9 March 2011 Mr Mahmoud filed a notice of motion in this Court seeking to set aside orders fixing the date of the appeal hearing. He complained that he lacked access to certain District Court transcripts, causing prejudice. On 14 March 2011 the Court dismissed the motion, noting that Mr Mahmoud could re-argue the point on the hearing date.

72. [158]

    On 24 March 2011 Mr Mahmoud made a series of applications before Garling DCJ in the District Court. Those applications were:

    1. (1)

       that the matter proceed on a tape rather than transcript. Garling DCJ refused this application;

    2. (2)

       for Mr Sutherland to be called to give evidence. Garling DCJ refused this application on the basis that the witness did not give evidence before the Local Court; and

    3. (3)

       for the production of certain medical evidence to explain why Mr Sutherland walked on crutches. Garling DCJ refused the application on the basis that it was irrelevant and not an order that the court could make.

73. [159]

    On 4 October 2011 Mr Mahmoud filed a summons in this Court seeking to set aside the decision of Knox DCJ dismissing Mr Mahmoud’s appeal from Magistrate Heilpern’s decision. It will be recalled that Magistrate Heilpern made a costs order and Knox DCJ held such an order was available under the relevant statute. On 26 September 2010 the Court allowed the appeal in part. On the basis that a costs order could be made under s 99(3) if the proceedings were frivolous or vexatious, the Court held that Knox DCJ erred in failing to form his own view on this question on the basis of the evidence before him, rather than draw an inference as to the magistrate’s state of satisfaction. The issue of costs was remitted to the District Court. The appeal was otherwise dismissed as to the substantive issues. Therefore, Mr Mahmoud had a limited success on this discrete issue.

74. [160]

    On 7 June 2013, on remitter, Cogswell J set aside Magistrate Heilpern’s costs order. However, his Honour noted that s 99(3) provides for a costs order in relation to an apprehended domestic violence order. Mr Mahmoud’s application was for an apprehended personal violence order. Noting this apparent error, his Honour considered himself bound by the Court of Appeal’s orders to consider whether Mr Mahmoud’s application was frivolous or vexatious. Finding it was not, his Honour set aside the magistrate’s orders.

75. [161]

    On 24 October 2012 Mr Mahmoud filed an application for special leave to appeal the Court of Appeal’s decision in the High Court. The special leave application referred to bias, falsified transcripts and racial discrimination. On 11 February 2013 Heydon J directed that Mr Mahmoud notify his trustee in bankruptcy of the proceedings and reconsider the allegations made in his special leave application.

76. [162]

    Excluding the first application for an AVO commenced on 24 December 2009, each of the proceedings against Mr Sutherland was vexatious under ss 6(a) and (c). This includes the 4 October 2011 proceedings. Each of the proceedings was characterised by the prolixity and the extravagance of the allegations made, without any basis, by the applicant. The proceedings were each instituted and pursued without reasonable ground. They were an abuse of process.

77. [163]

    On 26 October 2011 Mr Mahmoud filed a further amended statement of claim against the NSW Police in the NSW Supreme Court. Mr Mahmoud alleged the actions of the police in entering his premises in March 2006 (in the context of his dispute with the Owners Corporation) were wrongful and that he was entitled to damages. On 17 December 2012 consent orders were filed providing for judgment in Mr Mahmoud’s favour in the sum of $110,000 plus costs. Therefore, Mr Mahmoud had a significant degree of success in the proceedings. It is noteworthy that Mr Mahmoud was represented by solicitors in these proceedings.

78. [164]

    On 15 November 2013 Mr Mahmoud filed a notice of motion seeking to set aside the consent orders. He alleged he was induced to enter into the settlement as a result of the “betrayal, misconduct and collusion” of his solicitor and the defendants. He also sought interest on the judgment sum for an 18-day period. On 4 December 2013 Harrison J dismissed the motion, stating that but for a “limited and confined issue” the motion was “wholly without merit”, that Mr Mahmoud’s concerns were misconceived and that the contention that he was defrauded was not supported by evidence. The “limited and confined issue” related to the date from which interest on the judgment sum was to be calculated.

79. [165]

    The Attorney General submitted the following conduct was vexatious pursuant to ss 6(a), (c) and (d):

    1. (1)

       Mr Mahmoud’s motion to set aside consent orders made nearly 11 months earlier; and

    2. (2)

       Mr Mahmoud’s motion seeking costs for his own time and interest for a period of time during which he said he was unpaid.

80. [166]

    Mr Mahmoud’s conduct in relation to the 15 November 2013 proceedings was vexatious pursuant to ss 6(a), (c) and (d). There was not then and is not now the slightest evidence in support of the applicant’s claim that the settlement was effected by the “betrayal, misconduct and collusion” of his solicitor and the defendants. The proceedings were each instituted and pursued without reasonable ground. They were conducted in a way so as to harass or annoy. They were an abuse of process.

81. [167]

    The claim made against police commenced (by solicitors on behalf of the applicant) on 26 October 2011 was not vexatious.

82. [168]

    On 3 September 2013 the State commenced these proceedings seeking orders under the Vexatious Proceedings Act. On 26 March 2014 Mr Mahmoud made an application for a stay of these proceedings until the Police proceedings before Harrison J were heard and determined. On 1 April 2014 Fullerton J dismissed that application. Her Honour recorded that Mr Mahmoud relied on evidence that he did not have the time and resources, or sufficient physical health, to participate in both proceedings. Her Honour was unpersuaded by the limited medical evidence relied upon by Mr Mahmoud.

83. [169]

    On 4 July 2014 Mr Mahmoud filed a notice of motion seeking orders that the proceedings be dismissed, or alternatively that the proceedings be adjourned in order to bring an appeal against the orders of Fullerton J. On 24 July 2014 Hoeben CJ at CL dismissed the motion with costs. His Honour described various of Mr Mahmoud’s submissions as “misconceived” and said that “the content of the medical reports are self-evidently inadequate to justify a stay of proceedings”.

84. [170]

    On 24 September 2014 Mr Mahmoud made an application for the vacation of certain case management orders. The matter came before Schmidt J as duty judge. Mr Mahmoud made an application that Schmidt J disqualify herself on the basis of apprehended bias (on the basis that her Honour was a woman) and actual basis (on the basis of alleged racism). Her Honour recorded that Mr Mahmoud made the following submission with respect to the apprehended bias issue:

85. [171]

    On 4 March 2015 Mr Mahmoud sought orders vacating the hearing date as he had insufficient time to prepare. Wilson J dismissed the application, stating that it was “entirely without substance”.

86. [172]

    In relation to the conduct of the proceedings below the following steps were vexatious pursuant to ss 6(c) and (d):

87. [173]

    The application ultimately determined by Wilson J was vexatious pursuant to ss 6(c) and 6(d).

88. [174]

    Furthermore, the applicant’s conduct in the appeal proceedings was itself vexatious. The documents he filed were unnecessarily voluminous and contained many scandalous allegations with no support.

89. [175]

    Each of the proceedings was characterised by the completely unfounded allegations made about judicial officers by the applicant. The proceedings were each instituted and pursued without reasonable ground. They were conducted in a way so as to harass or annoy. They were an abuse of process.

90. [176]

    In this regard, on 3 November 2016 – the day before the hearing of this appeal – Mr Mahmoud filed submissions in reply in which he referred to the “speech disability of Barrister Emmett” and sought orders that “Barrister Emmett to stop speaking in Court on the hearing of 04-11-2016, or to order him to write what he wants to say, hand it to the Court and then the Court reads it to me or to order him to speak very slowly word by word otherwise I will not be having a fair trial”. This was an application which was plainly without merit and is properly described as vexatious.

91. [177]

    To the extent that the notice of appeal sought leave to appeal from each of the decisions set out immediately below, and that application for leave was properly before the Court (a matter about which I express no concluded view) that leave should be refused. No coherent basis was advanced by the applicant why leave to appeal should now be granted in any of those cases. Given my conclusions elsewhere in these reasons, it would be futile to allow the applications for a stay and dismissal of the proceedings to become the subject of leave. Those cases are:

Whether an order should be made under the Vexatious Proceedings Act

1. [178]

   For the following reasons this is a case where an order should be made in the terms below declaring the applicant to be a vexatious litigant.

2. [179]

   First, the number of vexatious proceedings over the period of years tends in favour of making the order. I have set out above each of the proceedings I have found to be vexatious. Initially, I was attracted to confining any order to the circumstances of the applicant’s repeated assertion that he was entitled to commence proceedings on behalf of the Owners Corporation of his former building. However, on a close analysis of all of the proceedings the applicant has instituted and conducted over many years such a limitation is not warranted. Whilst the assertion that he was entitled to act on behalf of the Owner’s corporation was an important feature of a number of early proceedings involving the applicant, the large number of more recent proceedings have each contained additional and very different vexatious features.

3. [180]

   Secondly, the content of the proceedings I have found to be vexatious tends in favour of making the order. Without repeating what I have set out above in relation to individual proceedings it is clear that the applicant has instituted and conducted a large number of vexatious proceedings over many years containing wild, extravagant claims for which there was no foundation. This is a case where the content of the completely unfounded allegations made by the applicant in such a large number of cases tends strongly in favour of making an order under the Act.

4. [181]

   Thirdly, the proportion of vexatious proceedings in relation to non-vexatious proceedings involving the applicant is high, tending in favour of making the order. Whilst the fact that the applicant was successful in achieving a settlement with the NSW Police and in a limited number of other proceedings, which tends against making the order, the overall proportion of vexatious proceedings remains high.

5. [182]

   Fourthly, the conduct of the applicant in the present case tends in favour of making the order. That conduct, as I have found, was vexatious in the extreme. Numerous completely unfounded allegations were made about judicial officers with no support whatsoever.

6. [183]

   Fifthly, while the age of some of the proceedings described above tends against making an order, the course of the vexatious proceedings instituted and conducted by the applicant over many years, up to and including the present application tends strongly in favour of making the order.

7. [184]

   In all the circumstances, I propose making an order with appropriate limitations as suggested by the Attorney General. I have already addressed why in my view those limitations are warranted.

8. [185]

   It is to be noted that consent orders were apparently made in the Common Law Division matter number to vacate order (2) made on 24 September 2015, giving effect to the Attorney General’s concession on that topic.

9. [186]

   Finally, as the applicant has been granted leave to appeal from the final orders made in this case and his appeal has been considered on its merits, it is unnecessary to make orders regarding leave to appeal from the interlocutory decisions made in this matter, even assuming such leave was sought, a matter which remains unclear: see generally Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22. In any event, no error was shown in relation to those interlocutory decisions.

Costs

1. [187]

   The Attorney General submitted that if leave to appeal was refused (apart from the limited matters conceded) the Court should award costs in favour of the Attorney General from the date that the Attorney General first proposed the limited variations to the orders made by the primary judge.

2. [188]

   Leave having been granted and the appeal allowed, in my view such an order is not appropriate. Whilst the applicant has enjoyed some success, he should not receive an award of costs (if otherwise entitled – see Cachia v Hanes) - nor have to pay the whole of the costs of the Attorney General. The applicant’s limited success should in my view be reflected in a partial award of costs to the Attorney General.

3. [189]

   Having regard to all of the circumstances here the appropriate order is that the applicant pay 50% of the costs of the Attorney General of the hearing before the primary judge and the appeal.

Orders

1. [190]

   Accordingly, I propose the Court make the following orders:

   1. (1)

      Grant leave under order 1 of the amended notice of motion filed 13 September 2016 to file the notice of motion in Court together with an affidavit in support;

   2. (2)

      Otherwise dismiss the motion;

   3. (3)

      Mr Mahmoud pay the costs of the Attorney General (as agreed or assessed) of the amended notice of motion;

   4. (4)

      Grant leave to appeal from the judgment of Rothman J dated 24 September 2015;

   5. (5)

      Allow the appeal;

   6. (6)

      Vary order 1 of the orders made by the primary judge by adding the words “save that this order does not apply to Mr Mahmoud instituting proceedings within the meaning of the Vexatious Proceedings Act 2008 (NSW):

   7. (7)

      Mr Mahmoud pay 50% of the costs of the Attorney General (as agreed or assessed) of the hearing before the primary judge and of the appeal.