Ipsofactoj.com: International Cases [2001] Part 9 Case 9 [NZCA]




- vs -

Attorney General




17 July 2001


Blanchard J

(delivering judgment of the court)

  1. Mr Brogden appeals a decision of the High Court characterising him as a vexatious litigant and making orders under s88A of the Judicature Act 1908 preventing him from bringing or continuing with civil proceedings without the leave of that Court.

  2. In 1994 Mr Brogden brought a proceeding in the District Court at Tauranga against his sister, Mrs Walsdorf. What was in dispute was whether a fund provided by their father and held by her in trust at the date of their father’s death consisted of $15,000 (as she said) or $16,000 (as Mr Brogden said); whether the fund should be divided equally between five siblings (as she said) or just between Mr Brogden and his sister (as Mr Brogden said); and whether Mrs Walsdorf was entitled to the interest said to have accrued on the principal amount. The terms of the trust were entirely oral.

  3. Obviously in monetary terms a relatively small sum was at stake so far as Mr Brogden was concerned: at most, it seems, about $5,000. In fact, Mr Brogden’s principal concerns seem to be with the additional $1000 and a very small sum of interest.

  4. He appeared for himself, as he has done at all ensuing hearings. The District Court Judge, Judge Kearney, delivering judgment on 17 August 1994, preferred the evidence of Mrs Walsdorf where it conflicted with that given by Mr Brogden. On that basis he found that Mr Brogden had failed to prove his case.

  5. Mr Brogden appealed against this decision to the High Court in Rotorua. The primary focus of his appeal was that Mrs Walsdorf was a dishonest witness whose evidence should not have been believed. He pointed to various inconsistencies in her evidence.

  6. Thorp J recorded, in his oral judgment of 28 April 1995 dismissing the appeal, that he had endeavoured to explain to Mr Brogden that on issues relating to which witness should have been believed, it was not open to an appellate court to overturn the trial Judge, who had had the benefit of seeing and hearing the witnesses. Having looked into the particular matters raised by Mr Brogden, Thorp J was not prepared to interfere with a judgment which, correctly in our view, he said was based substantially on the trial Judge’s assessment of Mrs Walsdorf’s credibility.

  7. On 12 December 1995 Morris J dismissed an application for leave to appeal to this Court. The proposed appeal did not meet the test prescribed for a second appeal in Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343. This Court confirmed that Morris J was right to refuse leave (Brogden v Walsdorf, CA71/96, 23 February 1998). Gault J said in giving the Court’s reasons:

    It is a case involving a small sum. It raises no issue of general importance being confined to the particular dispute between the parties. It raises primarily issues of credibility on which, as Thorp J emphasised, the findings of the trial Judge are not lightly disturbed. We were not given and have not discerned any ground suggesting error on the part of the Judges in the admission or exclusion of evidence. Mr Brogden has had his arguments fully considered. There must be an end to litigation.

  8. Mr Brogden had convinced himself that Mrs Walsdorf’s counsel, Ms Adams, had misstated the truth about the moneys held by Mrs Walsdorf in a letter written on behalf of her client on 31 August 1993; and that a pleading in the statement of defence drawn by Ms Adams was also false in similar respects.

  9. We pause to comment that even if Ms Adams had "lied" (to use Mr Brogden’s oft repeated term) in these respects, it is difficult to see that this could have had any effect on Judge Kearney’s judgment, which was based upon the evidence given by Mrs Walsdorf, not on the letter or the pleading. In fairness to Ms Adams and her law partner Mr Horsley, whose role will appear later, nothing we say in this judgment should be taken as accepting Mr Brogden’s view of their conduct.

  10. Mr Brogden commenced a proceeding against Ms Adams claiming damages of $200,000 for emotional and physical distress, including damage to his credibility said to have been caused by her statements.

  11. Ms Adams applied to strike out the proceeding against her. Mr Horsley appeared as her counsel. Judge I B Thomas, in the District Court at Tauranga, determined that the proceedings were misconceived, an abuse of process and frivolous and vexatious. He referred to the possibility of asking the Solicitor-General to have Mr Brogden declared as such, but left that matter to counsel, Mr Horsley. He made an order striking out the whole of the proceeding.

  12. Robertson J dismissed Mr Brogden’s appeal against the decision of Judge Thomas. He said that there was not the slightest doubt that, on the evidence available to him, Judge Thomas had no option but to strike out the proceeding. He too warned Mr Brogden of the possibility of being declared a vexatious litigant. "If he is not in that arena he is perilously close to it".

  13. Mr Brogden then turned his attention to Judge Thomas. On 3 June 1998 he commenced proceedings in the High Court against the Attorney-General and the Judge, once more seeking damages of $200,000 and claiming (inter alia) that the decision was wrong and contrary to the judicial oath; that the Judge was biased against him and had "deliberately lied" in his judgment. That proceeding was struck out by Anderson J on 10 September 1998 as "an abuse, as well as potentially raising the issue of criminal contempt".

  14. Mr Brogden then proceeded to sue Mr Horsley for $75,000, alleging that he too had "deliberately lied" when filing statements of defence. The alleged lies were said to relate to the same questions about the quantum of the fund held by Mrs Walsdorf. An application by Mr Horsley to have this proceeding struck out has been adjourned pending the outcome of this present proceeding.

  15. As a consequence of Mr Brogden’s litigation the Attorney-General applied to the High Court under s88A of the Judicature Act 1908 seeking orders that:

    No civil proceedings should, without leave of the Court, be instituted by Mr Brogden by himself or by his agent; and

    None of the civil proceedings so far instituted by Mr Brogden should be continued by him or his agent without such leave.

  16. Section 88A is in the following terms:


    Restriction on institution of vexatious actions


    If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior Court, and whether against the same person or against different persons, the Court may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any Court and that any civil proceeding instituted by him in any Court before the making of the order shall not be continued by him without such leave.


    Leave may be granted subject to such conditions (if any) as the Court or Judge thinks fit and shall not be granted unless the Court or Judge is satisfied that the proceeding is not an abuse of the process of the Court and that there is prima facie ground for the proceeding.


    No appeal shall lie from an order granting or refusing such leave.

  17. The application was heard over three days by Salmon and Laurenson JJ. They made an order as sought in a reserved judgment delivered on 11 October 2000. After setting out the history of Mr Brogden’s litigation in rather more detail than we have done and discussing relevant case law and the influence of s27 of the New Zealand Bill of Rights Act 1990 (the right to the observance of the principles of natural justice), the Judges said that it could be seen from the submissions of Mr Brogden that he was simply unwilling or unable to understand that there was a proper evidential basis upon which Judge Kearney was entitled to make the decision he did, namely that Mrs Walsdorf could be accepted as an honest witness despite any inconsistency in her evidence. The Judges had no doubt that it was a case where an order should be made under s88A. They said that the proceedings against Ms Adams, Judge Thomas and Mr Horsley were all vexatious:

    They all display the obsession with what Mr Brogden perceives as the grave injustice against him represented by the decisions in the Walsdorf proceedings. They involve making unfounded and insulting allegations against a widening circle of people, including opponents, counsel and Judges. The conduct of appeals, including those from the original decision by Judge Thomas, illustrate a similar degree of persistence and vexatiousness. We are satisfied that Mr Brogden had no reasonable grounds for initiating the Adams, Thomas and Horsley proceedings.


  18. Mr Brogden essentially made two arguments, which focused on the requirement in s88A(1) that the Court must be satisfied that the respondent to an application under the section "has persistently and without any reasonable ground" instituted vexatiously proceedings. Mr Brogden said first that, because complaint was made about three proceedings only, including one (that against Mr Horsley) which has yet to be determined, he could not, as a matter of law, be said to have brought proceedings "persistently".

  19. Mr Brogden’s second argument was that he has not brought any of the proceedings "without any reasonable ground". He developed at some length his reasons for saying that, because he believes that he is able to show that Ms Adams and Mr Horsley "lied" in the respects already mentioned, his three proceedings therefore had a reasonable ground. In order to demonstrate this he took us to certain passages in the evidence given before Judge Kearney, to certain financial records and bank account details of Mrs Walsdorf, to Ms Adams’ letter and to the statement of defence filed by Ms Adams on behalf of Mrs Walsdorf. Listening to Mr Brogden it was clear to us that he is quite unable to accept that any other view on these matters apart from his own could be correct; and that he entirely fails to understand the role of legal counsel and the difference between evidence, on the one hand, and pleadings and submissions, on the other.


  20. Although s88A and a predecessor section have been in existence in New Zealand law for more than 35 years, to date only a handful of applications has been made. This reflects an appropriately conservative approach by successive Attorneys-General, no doubt mindful of the fundamental constitutional importance of the right of access to the courts. Recognition of that value does, however, need to be balanced against the desirability of freeing defendants from the very considerable burden of groundless litigation. This is particularly so where the target of such unmeritorious litigation is a lawyer or judicial officer unfortunate enough to have encountered the litigant in a professional or judicial capacity only.

  21. Section 88A is concerned with a person who has "instituted" vexatious proceedings. Obviously, therefore, the jurisdiction to make an order under the section exists only when multiple proceedings have been commenced by the respondent. What constitutes institution of such proceedings "persistently" will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed. The fact that one or more proceedings have been struck out does not inevitably lead to the conclusion that the litigation has been vexatious. But this may be a strong indication. We agree with the following comment of the Full Court in Attorney-General v Collier [2001] NZAR 137, 149:

    Although in many cases it may not be possible to decide whether litigation is wholly without merit until it is determined, a successful strike-out application by the defendant, at least where not based upon technical points (such as Limitation Act defences or error in the form of proceedings not known to the plaintiff) may be reliable evidence in the circumstances of vexatiousness.

  22. What is required is an appropriate assessment of the whole course of the respondent’s conduct of the litigation in question, including the manner in which and apparent purpose for which each proceeding has been conducted, including resort to the appeal process where that has been done without any realistic prospect of success. We note the adoption by the High Court in this case of the observation made in Attorney-General v Hill (1993) 7 PRNZ 20, 22 that the concern is not with whether the proceeding was instituted vexatiously but whether it is properly described as a vexatious proceeding. Of course, if the litigant is found to have had an improper purpose in commencing proceedings, a finding that the litigation was vexatious is more likely. The test is, however, whether, overall, the various proceedings have been conducted by the litigant in a manner which properly attracts that epithet.

  23. Where an order is made under s88A the litigant’s access to the Courts is not denied, but the High Court is able to act as a gatekeeper or supervisor to ensure that the processes of the Courts are not abused. Where the litigant satisfies a High Court Judge that there is a prima facie ground for the proceeding, leave may be granted. The Court is given the power to impose conditions which may be a means of ensuring that the litigant pursues the proceeding in a proper manner. The interests of the litigant and the intended defendant, and the public interest in the proper administration of justice can, by way of these controls, be appropriately balanced. Repetition of the litigant’s vexatious use of legal proceedings can be prevented. Section 88A is thus a reasonable limitation upon the right of access to the Courts which the litigant has been found to be abusing. The relevant considerations in any particular case, including rights guaranteed to a litigant under s27 of the Bill of Rights, can by this means be weighed and accommodated.


  24. We have carefully considered all of the material placed before us and listened at length to Mr Brogden’s oral submissions. We are left in no doubt that the Full Court correctly assessed the position in the passage from its judgment quoted above.

  25. Having failed in his case against Mrs Walsdorf (which is not characterised as vexatious), Mr Brogden has successively brought three proceedings, all quite hopeless, in an obvious effort to re-litigate the very matters upon which he failed in the Walsdorf proceeding. He has on numerous occasions chosen to make very serious allegations, which are not shown to have any proper justification. It is of particular concern that he has made allegations of bias and other impropriety against Judge Thomas without any basis at all for his statements. He does this out of his sense of injustice. But that cannot excuse the extravagance of his allegations. It became obvious when we listened to him that Mr Brogden utterly fails to recognise the futility of his course of litigation and, as the Full Court said, has become obsessed with it. He has not been prepared to desist after two of his proceedings were rightly struck out. He has now embarked upon a third proceeding which is equally without merit and appears to be intended merely to embarrass the defendant, Mr Horsley. Contrary to Mr Brogden’s argument, the commencement of that proceeding can properly be taken into account on the s88A application. Although it has not been the subject of any judicial determination, it has been "instituted" and no reasonable ground has been shown.

  26. Mr Brogden has brought the proceedings persistently and without any reasonable ground. The High Court properly determined that he is a vexatious litigant.

  27. We dismiss the appeal and confirm the orders made in the High Court that no civil proceeding may be instituted by Mr Brogden without leave of the High Court or a Judge thereof and that any civil proceeding already instituted by him before any Court prior to the making of the order is not to be continued by him without leave.

  28. The appeal is dismissed.


Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343; Brogden v Walsdorf, CA71/96, 23 February 1998; Attorney-General v Collier [2001] NZAR 137; Attorney-General v Hill (1993) 7 PRNZ 20


Judicature Act 1908, s.88A

New Zealand Bill of Rights Act 1990, s.27


Appellant in Person
K L Clark and J S McHerron for Respondent (instructed by Crown Law Office, Wellington)

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