Application by John Wilson

John Wilson is a vexatious litigant, having been so declared by this Court in 2010: Attorney General of NSW v Wilson [2010] NSWSC 1008. Relevantly, the orders of the Court were:

As a consequence of that order the applicant requires leave from an appropriate court prior to instituting legal proceedings. This Court, being the Court that made the order, is an appropriate court: Vexatious Proceedings Act 2008 (NSW), s 12.

Believing that he may have been defamed by a report broadcast by the Australian Broadcasting Commission (“the ABC”) on television on 30 November 2015, the applicant seeks leave to institute proceedings otherwise prohibited by the terms of the 2010 order.

In the subject broadcast, the applicant was referred to as a person identified by a “domestic terror threat assessment” as “an extremist member of the sovereign citizen movement and a potential terror threat to Australia” (Annexure A to the affidavit of Martin Thomas Slattery filed 28 September 2016 in support of the application, hereinafter “Slattery”).

The applicant contends that the characterisation of him broadcast by the ABC is potentially defamatory.

He has made inquiries of the NSW Police, the Australian Federal Police (“the AFP”), and the ABC, in an effort to obtain a copy of the “domestic terror threat assessment” that the ABC report referred to, but has been unsuccessful. Neither the NSW Police nor the AFP have such a document, and the ABC declined to provide the applicant with any relevant documentation in its possession absent a subpoena or other legal process (Slattery, Annexures D, E and C respectively).

By summons filed on 29 September 2016 the applicant seeks the following relief:

In brief submissions filed on 20 October 2016 in support of the summons the applicant delineates the “proceedings” he seeks leave to institute as, initially, an application for preliminary discovery pursuant to rr 5.3 and 5.4 of the Uniform Civil Procedure Rules 2005 (“UCPR”). Should discovery reveal a prima facie case for action in defamation, the applicant also seeks leave to institute substantive proceedings.

“Proceedings” is broadly defined by s 4 of the Vexatious Proceedings Act:

An application for pre-trial discovery is clearly caught by s 4(a) and is thus a proceeding for the purpose of the Act. An action in defamation is an action or suit and is also caught by s 4.

The proceedings the applicant seeks leave to institute are thus matters in respect of which an application of this nature may be made.

In considering whether leave ought to be granted by the Court to the applicant to commence proceedings, regard must be had to those matters in s 16 of the Vexatious Proceedings Act. The section is in these terms:

A proceeding will be vexatious for the purposes of s 16(4)(a) if it falls within the definition provided by s 6:

The information provided to the Court in support of the application is very limited, no doubt because the information the applicant has access to is limited. He may have an actionable claim although, as the applicant himself concedes in his affidavit of 1 September 2016, the ABC may have a defence to any such action, wholly vitiating it. Even on the scant information available, a number of the defences referred to in Division 2 of Part 4 of the Defamation Act 2005 (NSW) are potentially available.

However, part of what is sought is pre-trial discovery of documents and it may be that permitting the applicant to pursue discovery would determine whether his proposed substantive action has merit prima facie. This in turn would allow the Court to determine those matters referred to in s 16(4) of the Vexatious Proceedings Act.

Accordingly, I propose to make orders pursuant to s 16(1) of the Act giving relevant persons an opportunity to be heard in relation to the question of leave to institute proceedings in the nature of discovery, pursuant to r 5.3 of the UCPR. I do not propose to make orders with respect to discovery pursuant to r 5.4 of the UCPR, since the identity of any person not a party to the prospective proceedings, but who may have some relevant document, is not established on the material filed in support of the application and hence, not identified for the purposes of s 16(5) and s 8(4)(e) of the Act.

It is premature in my view to make s 16(1) orders in relation to the substantive litigation. Consideration should first be given to the institution of proceedings for discovery.