Strike out of vexatious proceedings

The decision in the matter of Farmers Fruit Box & Plastics Pty Ltd & Anor v Select Carbon Pty Ltd & Anor [2023] QSC 241 (the Qld proceedings), which was handed down by Justice Bradley of the Qld Supreme Court following a strike out application filed by the Defendants, is a win against vexatious litigants.

Given the outcome of the case was determined to be an abuse of process and in favour of the Defendants, it serves as a reminder that:

1. in circumstances where the same (or materially same) set of facts are being heard before a court, then the commencement of any parallel proceedings, regardless of which court or tribunal they are commenced before, should prompt the consideration of a potential strike out application under the Uniform Civil Procedure Rules (UCPR)
2. in circumstances where a party is seeking to evade the effect of an order (i.e., to avoid settling a costs award), and commences proceedings against the same (or similar) entities seeking to rely upon the same (or similar) factual scenario, there may be scope to commence an application to permanently stay those proceedings under the Vexatious Proceedings Act 2005 (Qld) (Act), and
3. the Act continues to provide a reliable mechanism to permanently stay proceedings as a viable addition or alternative to striking out proceedings pursuant to the UCPR in circumstances where the plaintiff can be considered vexatious.

The above avenues of recourse are sometimes forgotten, perhaps as they may seem too obvious, however, any fresh proceedings should always prompt a very early enquiry as to whether any outstanding orders or proceedings with the same (or similar) parties exist, as they may present as a timely and cost-effective mechanism to bring about relief.

Strike out

Alan Jorgensen (Jorgensen), one of the Plaintiff’s in the Qld proceedings, was the controlling mind behind the commencement of prior court proceedings in the NSW Supreme Court. The NSW Supreme Court struck out the statement of claim in those proceedings on the basis that it was defective as it lacked a number of key elements, including an applicable cause of action. Despite striking out the statement of claim, the NSW Supreme Court granted the Plaintiff’s leave to replead their case although they would have to satisfy a $30,000 costs order prior to doing so.

Jorgensen made submissions during the strike out application in the Qld proceedings that he had formally discontinued the NSW proceedings, although that was not established.

The Qld proceedings arose out of the same set of facts and sought the same, or substantially similar, relief as sought within the prior NSW proceedings.

The Defendants’ made submissions that the institution of the Qld proceedings was to avoid obligations arising from the NSW proceedings and were a textbook example of an abuse of process. The Defendants’ application requested that the Qld proceedings be struck out pursuant to rule 171(2) of the UCPR.

Justice Bradley referenced Justice Burns in the matter of Lewis v Minister for Police and Corrective Services (Qld) [2022] QSC 70 at [7] who stated that:

“it should come as no surprise to record that the commencement of a second or subsequent proceeding in a court if a proceeding is already pending with respect to the matter or matters in issue in the same court will be ‘prima facie vexatious and oppressive’ and liable to be stayed or set aside as an abuse of process of that court. Indeed, unless proper justification for the maintenance of multiple proceedings can be discerned, such an outcome would have to be regarded as inevitable.”

Justice Bradley ordered the striking out of the Qld proceedings given that there was no proper justification for them and, in circumstances where the NSW proceedings remained on foot, the Qld proceedings were an abuse of process.

Vexatious litigant

The Defendants’ applied for a vexatious proceedings order under s 6(2) of the Act restraining Jorgensen from instituting (or causing to be instituted) similar proceedings in the future without the leave of the court. The Defendants’ argued that Jorgensen was “a person who has frequently instituted or conducted vexatious proceedings in Australia”.

The Defendants’ relied upon s 6(1)(a) of the Act, whereby such an order can be made if the court is satisfied that the plaintiff is a person who has frequently instituted or conducted vexatious proceedings in Australia.

Justice Bradley considered that the Qld proceedings fell within all possible alternate definitions of “vexatious proceedings” on the basis that they were an abuse of process, were instituted (or conducted in such a way) to harass or annoy the Defendants and were commenced without reasonable grounds. Therefore, Justice Bradley considered that the Defendants were vexed by the proceedings and were granted leave under s 5(2) of the Act to make their application for a vexatious proceedings order against Jorgensen.

Justice Bradley referred to a prior order of Justice Daubney who restrained Jorgensen from instituting certain proceedings. His Honour explicitly made a finding that Jorgensen “[was] a person who has frequently conducted vexatious proceedings in Australia”. Further, Justice Bradley considered that Jorgensen had continued to institute vexatious proceedings, including Jorgensen v Shorten (No 2) [2016] NSWSC 1761, Jorgensen v Jorgensen [2017] QCA 110, and the subject Qld proceedings instituted in February 2023.

Further, Justice Bradley referenced Justice Sofronoff in Jorgensen v Jorgensen [2017] QCA 110 who stated that:

“The current proceedings were calculated to evade the effect of the order that …  Alan Jorgensen … provide security for costs before proceeding with the claims. All of the subsequent proceedings raise the same grounds of complaint against the same class of defendants; for that reason alone, they are textbook examples of abuse of the Court’s process. They also evidence an incorrigibility in the behaviour of the plaintiffs who are all associated with Alan Jorgensen that justifies the injunction that was granted. It is the only possible effective relief against this conduct.”

Therefore, Justice Bradley made an order pursuant to s 6(2) of the Act permanently staying the Qld proceedings and restraining Jorgensen from instituting any other proceeding in Qld that relates to the same subject matter, without the prior leave of the court.

Costs order

As the Qld proceedings were determined to be an abuse of process, indemnity costs for the strike out application and Qld proceedings were awarded against Jorgensen.