Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Golden v V'landys [2020] NSWCA 120 Hearing dates: 15 June 2020 Date of orders: 26 June 2020 Decision date: 26 June 2020 Before: Basten JA at [1]; Macfarlan JA at [13]; Meagher JA at [38] Decision: Summons seeking leave to appeal dismissed with costs. Catchwords: CIVIL PROCEDURE – application for leave to appeal against decision striking out statement of claim and dismissing proceedings – claims for judicial review largely an attempt to relitigate issues dealt with in previous proceedings – remainder long out of time and lacking utility Legislation Cited: Supreme Court Act 1970 (NSW), ss 65, 69, 75 Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 56.02 Uniform Civil Procedure Rules 2005 (NSW), rr 59.1, 59.10; Pt 59 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Buttrose v Attorney General of New South Wales [2015] NSWCA 221; 324 ALR 562 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Maddingley Brown Coal Pty Ltd v Environment Protection Authority [2013] VSC 582 Minister for Youth and Community Services v Kew Cottages & St Nicholas' Parents Association Ltd (1996) 10 VAR 293 Texts Cited: K R Handley, Spencer Bower and Handley: Res Judicata (4th ed, 2009, LexisNexis) Category: Principal judgment Parties: Joseph Paul Golden (Applicant) Peter V'landys (First Respondent) Kevin P Greene (Second Respondent) Anthony G Hodgson (Third Respondent) Racing New South Wales (Fourth Respondent) Representation: Counsel: Self-represented Applicant P Braham SC / D Birch (Respondents) Solicitors: Self-represented Applicant Yeldham Price O'Brien Lusk (Respondents) File Number(s): 2019/347238 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 1362 Date of Decision: 16 October 2019 Before: McCallum J File Number(s): 2018/263736 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: The applicant seeks leave to appeal from a judgment of McCallum J in the Common Law Division, striking out a statement of claim filed in 2018 and dismissing the proceedings. Because the summary dismissal does not preclude the applicant bringing fresh proceedings, he needs leave to appeal that decision. I agree with Macfarlan JA that leave to appeal should be refused. I add the following observations in relation to a decision of the second respondent, Racing New South Wales, to refuse the applicant a trainer's licence for the 2016-2017 year. Futility of judicial review 1. While the applicant should not be permitted to reopen proceedings which have already been determined, that principle does not apply to the decision of Racing New South Wales in February 2017 to reject the applicant's application for a trainer's licence for the year ending 30 June 2017. However, the fact that the proceedings were not commenced until more than a year after the licence would have expired suggests that a proceeding by way of judicial review in respect of that determination would lack utility. There being no legal interest affected by the quashing of that decision, even if invalidity were to be demonstrated, relief by way of judicial review would be refused, on the basis of inutility, as explained in Ainsworth v Criminal Justice Commission. [1] 2. On the other hand, because the application was rejected on the basis that the applicant was not a fit and proper person to hold such a licence, there might well be ongoing practical effects which would enliven an entitlement to declaratory relief. [2] 3. A finding that a person is not a fit and proper person to hold a licence may be expected to have ongoing adverse effects on the person's reputation and future business interests. It may not matter that the applicant cannot point to any existing business interest which has been adversely affected or is likely to be so affected on a continuing basis. [3] The High Court held in Ainsworth that "reputation is an interest attracting the protection of the rules of natural justice", and that the same is true of "business or commercial reputation". [4] Declaratory relief may be available for that purpose, as it was in Ainsworth. Limitation issue 1. The primary judge approached the present application on the basis that the expiry of the period within which the licence, if granted, would have operated was not fatal to the judicial review application. [5] Nevertheless, she did place weight upon the fact that the application for review was commenced long after the expiry of the three month period for judicial review provided in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), Pt 59. The judge noted that UCPR r 59.10 requires leave of the court if proceedings for judicial review are not commenced within three months of the date of the impugned decision. [6] The judge further noted that the applicant had not sought the necessary extension of time. [7] 2. However, order (9) in the statement of claim sought a declaration that the decision "not to reissue Mr Golden's trainer's licence on the grounds that Mr Golden is not a fit and proper person to be licensed as a trainer with Racing New South Wales, was beyond power or otherwise invalid." Such a declaration did not constitute an order in the nature of mandamus under s 65 of the Supreme Court Act 1970 (NSW) nor, at least in form, was it a proceeding in lieu of a writ under s 69 of the Supreme Court Act. Rather, declaratory relief is addressed in s 75 of the Supreme Court Act. Such relief is not expressly encompassed within the definition of proceedings to which Pt 59 applies: r 59.1(1)(a). 3. A similar issue has arisen in Victoria with respect to provisions in similar terms to Pt 59: Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 56.02. In Maddingley Brown Coal Pty Ltd v Environment Protection Authority [8] Kyrou J, following an earlier decision of the Victorian Court of Appeal, [9] concluded that the time limitation did not apply to proceedings seeking declarations. [10] That was not to say that the delay in seeking relief might not be a factor to be taken into account in considering discretionary refusal of relief. Here, the time limitation for seeking an order under s 69 of the Supreme Court Act would no doubt be relevant in considering discretionary refusal of declaratory relief. 4. The primary judge treated the case as one in which two factors, namely that "the application raises substantial questions of fact and is significantly out of time" warranted refusal of an extension of time in circumstances where the orders would be inutile. [11] A further factor supporting this conclusion was that the paragraphs in the statement of claim which related to the determination of February 2017 did not clearly articulate a basis for challenging the validity of the decision. [12] 5. The last criticism may be accepted; however, it would not necessarily lead to dismissal of the proceedings, as opposed to striking out the statement of claim. If relief were sought by way of judicial review, it would not normally be necessary (or appropriate) to commence proceedings by way of a statement of claim, as opposed to a summons setting out the grounds upon which review was sought. The position is different with respect to a claim for declaratory relief. However, as stated by Beazley P and Leeming JA in Buttrose v Attorney General of New South Wales, [13] "just because a plaintiff seeks purely declaratory relief, it does not follow that the ordinary principles relating to judicial review cease to apply." [14] That observation applies equally to both the available grounds and temporal considerations. 6. The respondent noted that, so far as delay was concerned, no explanation had been given by the applicant. That was true. However, in oral submissions the applicant did give an explanation as to the reasons for the delay. Normally that would be given limited weight by the Court. On the other hand, the Court is relying on his candid concession that he would only be able to resume his business if he were to obtain compensation for the losses he has suffered through losing his licence and being warned off race courses, effectively conceding that declaratory relief alone with respect to the 2017 decision would provide little financial advantage. Accepting that concession, the Court should also accept his explanation for delay in commencing proceedings. 7. If the order of summary dismissal finally disposed of his claim for declaratory relief in respect of the 2017 licence decision, I would grant the applicant leave to appeal with respect to that issue, as aspects of the reasoning of the trial judge were flawed. The striking out of the 2018 statement of claim would have been upheld, given the absence of grounds for challenging the 2017 decision. However, the dismissal of the proceedings does not prevent the applicant recommencing a claim for declaratory relief in respect of the 2017 licence decision, if so minded, without the impermissible attempt to reopen issues disposed of in earlier proceedings, which comprised the vast bulk of the 2018 claim. 8. For these reasons the orders proposed by Macfarlan JA are appropriate. 9. MACFARLAN JA: This is an application by Mr Joseph Golden for leave to appeal from a judgment of McCallum J (as her Honour then was) striking out his statement of claim filed on 28 August 2018 to commence the present proceedings (the "2018 Proceedings") and dismissing those proceedings with costs. The application arises out of the following circumstances. 10. In the period 1992 to 2011, Mr Golden carried on a business of breeding, training and racing thoroughbred racehorses. In 2007 the horse racing industry was severely and adversely affected by an outbreak of equine influenza, as a result of which the Commonwealth Government instituted the Commercial Horse Assistance Payments scheme ("CHAPs") to provide assistance to those impacted by the outbreak. Racing New South Wales ("Racing NSW"), the present fourth respondent, made various payments under the scheme pursuant to a funding agreement with the Commonwealth. By early 2011 Mr Golden had come to the view that Racing NSW had acted improperly in this role, as had Mr Peter V'landys, its Chief Executive Officer and the present first respondent. 11. Mr Golden subsequently made numerous vociferous complaints to various persons and entities about what he alleged was the "rorting" of the scheme. These communications included a letter to Racing NSW dated 10 May 2011 accusing Mr V'landys of corruption and incompetence. Thereafter Racing NSW issued to Mr Golden a notice requiring him to show cause as to why his trainer's licence should not be suspended. Following further accusations by Mr Golden, on 8 June 2011 the Licensing Committee of Racing NSW suspended Mr Golden's licence for six months. Then on 24 June 2011 Mr V'landys approved Racing NSW's Licensing Committee's recommendation that Mr Golden be "warned off" all race tracks under the control of Racing NSW. 12. In 2013 Mr Golden commenced proceedings against Mr V'landys and Racing NSW seeking judicial review of these decisions of 8 and 24 June 2011, and seeking damages (the "2013 Proceedings"). In its further amended form, filed on 1 April 2015, Mr Golden's statement of claim included the following presently relevant allegations: 1. In his involvement in the two challenged decisions, Mr V'landys was acting as a public officer. 2. In so acting, Mr V'landys was biased against Mr Golden as a result of a number of matters including that Mr Golden had publicly accused Mr V'landys of incompetence and corruption and that Mr V'landys had threatened to exercise private law rights against Mr Golden in respect of his public criticisms of Mr V'landys. Alternatively, it was alleged that the decisions were vitiated by apprehended bias. 3. The two decisions were made for improper purposes and in bad faith, were based on irrelevant considerations and were unreasonable and illogical. 4. The second decision constituted an abuse of power because Mr Golden's "warning off" was disproportionate to his conduct. 5. Mr V'landys acted maliciously in connection with the two decisions. 6. As a result of the decisions, Mr Golden suffered substantial loss because he was unable to carry on his business of breeding, training and racing horses. 7. By reason of Mr V'landys' misfeasance in public office, which Racing NSW authorised, Mr V'landys and Racing NSW were liable for damages to compensate Mr Golden for his loss. 1. By judgment of 17 November 2015 Adamson J rejected Mr Golden's claims, finding, in particular, that he had not established either actual or apprehended bias and that he had not made good his allegations of misfeasance in public office ([2015] NSWSC 1709). 2. On an appeal by Mr Golden in relation to the second decision, this Court found on 4 November 2016 that that second decision was invalidated by the existence of a reasonable apprehension of bias on the part of Mr V'landys (Golden v V'landys [2016] NSWCA 300). The Court however rejected Mr Golden's allegations that the decision was made for an improper purpose and rejected his claim for damages based on misfeasance in public office. 3. On 18 November 2016 Mr Golden applied for a thoroughbred trainer's licence for the year ending 30 June 2017, but that application was refused by Racing NSW on 7 February 2017 on the ground that he was not a fit and proper person to hold such a licence. Mr Golden did not seek judicial review of that decision in the three month period prescribed under r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) for such a challenge. He in fact took no action for some 15 months after expiry of that period, eventually filing the statement of claim that commenced the current proceedings on 28 August 2018. 4. The relief sought in this statement of claim was as follows. 1. Prayers 1 to 5 were virtually identical to prayers 1 to 5 in the statement of claim in the 2013 Proceedings. Both sets of prayers related to the decisions of 8 and 24 June 2011. 2. Prayers 6, 8 and 11 to 13 sought declarations concerning the involvement of Racing NSW, Mr V'landys, Mr Kevin Greene (a director of Racing NSW and the second defendant) and Mr Anthony Hodgson (a director of Racing NSW and the third defendant) in the alleged embezzlement of public funds in 2007/2008 or its cover-up. 3. Prayers 7, 9 and 10 sought declarations and consequential relief concerning Racing NSW's licence decision of 7 February 2017. 4. Prayer 14 sought damages, as had prayer 6 in the 2013 statement of claim. 1. On the defendants' application, McCallum J, by judgment of 16 October 2019, struck out the statement of claim in the 2018 Proceedings and summarily dismissed the proceedings with costs ([2019] NSWSC 1362). 2. Her Honour noted that the 2011 decisions referred to in the statement of claim had already been the subject of judicial review proceedings, the second decision having been quashed by this Court on the ground of apparent bias. Challenges to the first decision had been rejected. Having noted that the prayers concerning the 2011 decisions in the statements of claim in the 2013 and 2018 Proceedings were almost identical, her Honour continued: "[31] … [Mr Golden] contends that his lawyers in the earlier proceedings wrongly failed to present evidence of the CHAPs fraud and he now seeks to re-litigate the claims brought in those proceedings with the benefit of that evidence and with a view to proving a separate basis for having the decisions quashed. That is clearly an abuse of process. The position is beyond doubt in respect of orders 2 and 4 as the warning-off decision [of 24 June 2011] has already been quashed and accordingly the subject matter of those contentions no longer exists. But in any event, it would condone an abuse of the court's process to allow Mr Golden to have a second run at the case previously put concerning the 2011 decisions." 1. Her Honour further concluded that the statement of claim in the 2018 Proceedings did not "provide a coherent account of any justiciable claim" to support Mr Golden's contention that the 2017 decision should be set aside. She described that aspect of his pleading as "incomprehensible and … plainly liable to be struck out in its present form". 2. Her Honour then noted that Mr Golden's challenge to this decision was well out of time and continued: "[39] The defendants submitted that no extension of time would be granted in any event because there is no explanation for the delay and an extension would serve no useful purpose due to the nature of the decision of which review is sought. The trainer's licence for which Mr Golden applied would (if it had been granted) have expired on 30 June 2017 under the relevant rules (Racing NSW, Rules of Racing, Local Rules). Local Rule 51(5) provides: '(5) Unless otherwise determined all licences, permits and registrations expire on the 30th day of June each year, excepting Forepersons Stablehands & Bookmaker's Clerks [licences] which expire on the 31st day of October each year.' [40] The defendants accordingly submit that, even if the decision could be impugned, there would be no utility in granting the relief sought. [41] I have previously held (in different circumstances) that the fact that a decision of which judicial review was sought related to an expired licence period did not preclude the grant of declaratory relief: Webber v Racing NSW [2019] NSWSC 46 at [61]-[70] (a case in which breach of procedural fairness was conceded). However, inutility is a more powerful consideration in circumstances where, as here, the application raises substantial questions of fact and is significantly out of time." 1. Her Honour next referred to prayers 6, 8, 11 and 12 in the statement of claim. These sought declarations as to the involvement of the defendants in alleged embezzlement, or its cover-up, in relation to the CHAPs scheme. Her Honour concluded that these claims were not maintainable by Mr Golden because they did not seek to vindicate any private right of his and were in any event not in a form that could be reflected in court orders. 2. Her Honour took the view that prayer 13 went further and asserted a claim for damages for misfeasance in public office. She held that that prayer was in a form that the court would be unable to reflect in a court order but in any event the claim represented "an attempt to relitigate the claim rejected by Adamson J relying on new evidence" and was therefore an abuse of process. 3. Her Honour added that lengthy portions of the statement of claim were in any event "irrelevant, unnecessary or scandalous against the defendants and other person who are not parties to the proceedings" or vague or imprecise such that the defendants would not be able to plead to them. 4. For these reasons, her Honour made the orders referred to in paragraph [13] above. 5. Mr Golden's application for leave to appeal from McCallum J's judgment was heard on a concurrent basis with the appeal that would follow if leave were to be granted. Mr Golden therefore had a full opportunity to present his appeal submissions. In my view leave to appeal should however be refused on the basis that Mr Golden's proposed appeal is hopeless. In summary, Mr Golden did not demonstrate the existence of any even arguable error on her Honour's part. 6. First, her Honour was clearly correct to dismiss the proceedings so far as they constituted an attempt to challenge the 2011 decisions. Those decisions were the subject of earlier proceedings in which judicial review and damages for misfeasance in public office were sought. The proceedings failed in respect of the first decision but succeeded, on the ground of apparent bias, in respect of the second. The claim for damages for misfeasance in public office was rejected in respect of both decisions (including in the Court of Appeal as to the second decision). 7. As was pointed out in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34], it is a "central and pervading tenet of the judicial system … that controversies, once resolved, are not be reopened except in a few, narrowly defined, circumstances". This is not such a circumstance. The general principle is therefore applicable. Consistently with that, a plaintiff who has asserted a cause of action in concluded proceedings is precluded from re-asserting it in subsequent proceedings, whether or not he or she has been successful in the first proceedings. If the plaintiff succeeds on the cause of action in the first proceeding it merges in the judgment and ceases to exist. If the plaintiff is unsuccessful, relitigation is precluded by cause of action estoppel (see K R Handley, Spencer Bower and Handley: Res Judicata (4th ed, 2009, LexisNexis) at [7.01]). There is no requirement for a strict identity of the causes of action: substantial identity suffices. As well, the estoppel is not precluded by the availability of new evidence to tender in the subsequent proceedings, even if that evidence was not available at the time of the first proceedings (ibid at [7.02]-[7.08]). 8. The disposition of the 2013 Proceedings preceded the 2017 decision. Challenge to it in the 2018 Proceedings is thus not precluded by those earlier proceedings. The challenge to it was however commenced some 15 months out of time and Mr Golden requires an extension of time in order to advance it. In my view he has not however demonstrated any error in the primary judge's decision to refuse that extension on the basis that a challenge to the 2017 decision would lack utility. 9. To the extent that Mr Golden sought a declaration as to the validity of the 2017 decision, an argument is available that the three month period stipulated by the Uniform Civil Procedure Rules 2005, r 59.10 is inapplicable. However in my opinion the preliminary view stated by Beazley P and Leeming JA in Buttrose v Attorney General of New South Wales [2015] NSWCA 221; 324 ALR 562 at [13] should be applied, namely, that the stipulated three month period "would either apply directly, or alternatively inform the Court's discretion to grant declaratory relief, even though the formal setting aside of a decision is not required". 10. As her Honour pointed out, the trainer's licence for which Mr Golden then applied would (if it had been granted) have expired on 30 June 2017. If Mr Golden intends, and is able, to make a further application for a licence, he might nevertheless have an interest in having the 2017 decision set aside, as the decision was made on the basis that he was not a fit and proper person to hold a licence. It is however apparent from what Mr Golden told the primary judge, and also this Court, that he will not be able to make a further application. Mr Golden said that he would only be able to apply for a licence and resume business, and therefore to fund the substantial expense that that would involve, if he were able to obtain compensation from the defendants in respect of the losses he alleges he suffered as a result of the 2011 decisions. It is apparent however, from the judgment below and this judgment, that Mr Golden does not have any prospect of achieving that. In these circumstances, there would be no utility in allowing him the opportunity to challenge the 2017 decision. 11. In respect of the next aspect of the 2018 Proceedings, that is, the allegations concerning the defendants' involvement in alleged embezzlement and a cover-up of misconduct under the CHAPs scheme, Mr Golden again did not demonstrate any even arguable error on the part of the primary judge. As her Honour held, the statement of claim did not allege any private right held by Mr Golden that might enable him to obtain declarations concerning alleged public misconduct of the defendants. 12. Likewise no arguable error was shown in her Honour's conclusion that Mr Golden's claim for damages for misfeasance in public office was impermissible as an attempt to relitigate the claim to like effect made in the 2013 Proceedings. That claim was only made in those earlier proceedings against Mr V'landys and Racing NSW and the claim in the 2018 Proceedings was also arguably so confined but, even if it were not, claims against the other defendants for damages for misfeasance in public office would fail for the same reasons as those against Racing NSW and Mr V'landys failed at first instance and before this Court in the earlier proceedings. 13. For these reasons, I propose that Mr Golden's summons seeking leave to appeal be dismissed with costs. 14. MEAGHER JA: I agree with the orders proposed by Macfarlan JA. 15. Whilst in different circumstances there might have been some benefit to Mr Golden in challenging the February 2017 finding as to his fitness to hold a trainer's licence, looking at the matter in June 2020 and accepting Mr Golden's concession that declaratory relief alone would not permit him to resume his business as a trainer, the position remains, as Macfarlan JA concludes, that there would be no utility in allowing him the opportunity to challenge that 2017 decision in the 2018 proceedings. That is particularly so where, as Basten JA observes, the summary dismissal of those proceedings does not prevent Mr Golden from seeking declaratory relief in further proceedings, although there may be substantial discretionary considerations against the granting of such relief. 16. Accordingly even if one accepts that there was arguable error in the summary dismissal of Mr Golden's claim to declaratory relief in relation to the 2017 decision only, that error did not, for the reasons given by Macfarlan JA, justify any grant of leave to appeal in the 2018 proceedings. ********** Endnotes 1. (1992) 175 CLR 564; [1992] HCA 10. 2. Ainsworth at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ), 597 (Brennan J). 3. Ainsworth at 577. 4. Ainsworth at 578. 5. Golden v V'landys [2019] NSWSC 1362 at [41]. 6. Golden v V'landys [2019] NSWSC 1362 at [37]. 7. Golden at [38]. 8. [2013] VSC 582. 9. Minister for Youth and Community Services v Kew Cottages & St Nicholas' Parents' Association Ltd (1996) 10 VAR 293 at 297 (Phillips JA), 302 (Callaway and Hedigan JJA), dealing with the predecessor to the 2005 Civil Procedure Rules, namely Order 56 of the General Rules of Procedure in Civil Proceedings (1996) (Vic). 10. Maddingley at [361]-[363]. 11. Golden at [41]. 12. Golden at [35]. 13. [2015] NSWCA 221; 324 ALR 562. 14. Buttrose at [15]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2020