Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Macatangay v State of New South Wales [2023] NSWCA 238 Hearing dates: 3 October 2023 Decision date: 12 October 2023 Before: Bell CJ; Leeming JA; Stern JA Decision: 1. Notice of motion filed by the applicant on 18 July 2023 dismissed. 2. Applicant to pay the respondent's costs. Catchwords: PRACTICE – vexatious litigant – whether making vexatious proceedings order without separate oral hearing contravened statute – whether proceedings vexatious – where matter sought to be relitigated had previously been determined on a final basis from which an appeal was dismissed – application dismissed Legislation Cited: Industrial Relations Act 1996 (NSW), s 87 Vexatious Proceedings Act 2008 (NSW), ss 4, 8(3), 9, 13, 14, 15(2) Cases Cited: Jorgensen v Australian Securities & Investment Commission [1999] FCA 356; 30 ACSR 481 Macatangay v NSW Department of Education & Training [2006] NSWSC 214 Macatangay v State of New South Wales [2007] NSWSC 57 Macatangay v State of New South Wales [2009] NSWCA 81 Macatangay v State of New South Wales [2012] NSWCA 108 Macatangay v State of New South Wales [2012] NSWCA 341 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Miguela Macatangay v NSW Department of Education and Training [2005] NSWIRComm 69 Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 Category: Principal judgment Parties: Miguela Alvarez Macatangay (Applicant) State of New South Wales (Respondent) Representation: Counsel: Applicant (Self-represented) L Meagher (Respondent) Solicitors: Hall & Wilcox (Respondent) File Number(s): 2005/269316 [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. THE COURT: Ms Miguela Macatangay was declared a vexatious litigant by this Court on 15 November 2012: Macatangay v State of New South Wales [2012] NSWCA 374. The terms of the order made on that date are as follows: Pursuant to s 8(7) of the Vexatious Proceedings Act 2008: (a) all proceedings in New South Wales already instituted by the applicant in matters Nos 20144 of 2005 and 269316 of 2005 ("the Matters") be stayed; and (b) the applicant be prohibited from instituting any further proceedings in New South Wales relating to any of the claims or complaints made by her in the Matters. 1. That order was a "vexatious proceedings order" for the purposes of the Vexatious Proceedings Act. It has serious consequences, one of which is that it prevents the person from commencing proceedings without first seeking leave under s 14, and if proceedings are commenced without leave, they are automatically stayed immediately and then dismissed after 28 days: see s 13(2) and (3). Importantly, "proceedings" is defined in s 4 of the Act to mean "any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings …". Thus a prohibition upon "instituting proceedings" extends to a prohibition upon making procedural or interlocutory applications. 2. By notice of motion filed on 18 July 2023, Ms Macatangay seeks the following orders: 1. The stay of proceedings in Matter 20144 of 2005 (the Matter) and the prohibition from instituting any further proceedings be lifted as: (a) the Matter is not a vexatious proceeding under s 6 of the Vexatious Proceedings Act 2008 (the Act), (b) the Applicant is not a person under s 8(1)(a) of the Act, (c) the vexatious order was made on the Papers which is a contravention of s 8(3) of the Act, (d) the subsequent proceedings after the erroneous final order of Grove J are as of right pursuant to section 101(1)(a) of the Supreme Court Act 1970 2. Resume hearing of Matter 20144 of 2005 and provide the relief being claimed in the Further Amended Statement of Claim pursuant to the leave granted by the Court on 15 February 2006, filed on 28 March 2006. 3. Cost. 1. The motion was filed in the Court of Appeal. As drafted by her, it identified the 2005 proceeding in the Common Law Division (20144 of 2005) as the proceeding in which it was filed. However, as an administrative act, the motion has been treated as being filed in proceeding 2005/269316. The way in which proceedings commenced in the Supreme Court are allocated numbers has changed over the 18 years since Ms Macatangay sued the State of New South Wales, and it appears that what was formerly regarded as 20144 of 2005 is now known as proceeding 2005/269316. Nothing turns on this (and indeed it passed unremarked in the parties' written and oral submissions) for two reasons. The first is that Ms Macatangay's complaint will be resolved as a matter of substance, rather than form. The second is that the extant vexatious proceedings order, which Ms Macatangay challenges in her motion, extends to 20144 of 2005 and 2005/269316. 2. The wording of the motion (which appears to have been drafted by Ms Macatangay without the assistance of a lawyer) does not fully correspond to the avenues which are open to her under the Vexatious Proceedings Act. However, it is tolerably clear that although she seeks other orders, Ms Macatangay also seeks leave to institute proceedings. It is also clear that Ms Macatangay seeks to set aside the extant vexatious proceeding order, an application which is authorised by s 9 of the Act. The most efficient course, and one that is more favourable to Ms Macatangay than one based on a literal or technical reading of her motion, is to address the matters at the level of substance. 3. The motion was listed before the Court constituted by three judges, and for an oral hearing, notwithstanding that the State did not seek to be heard orally and said it could be dealt with on the papers, and notwithstanding that parts, at least, could be addressed by a single Judge of Appeal. Ms Macatangay, by an email promptly answering the Court's inquiry a few days before the hearing, insisted that there be an oral hearing. That is consistent with her submission, made repeatedly in oral address, that previous courts have not listened to or understood her submissions. In the event, this Court heard Ms Macatangay orally for somewhat in excess of an hour in addition to receiving three sets of written submissions she had filed, and 95 pages of annexures dealing with the history of her dispute with the State of New South Wales. 4. Some brief factual background is necessary in order to resolve the notice of motion. Background 1. More than two decades ago, Ms Macatangay was employed as a secondary school teacher by the State of New South Wales. She commenced proceedings in the Industrial Relations Commission in 2002, claiming she was unfairly dismissed. The proceedings were not heard and determined on a final basis. There was a hearing occupying two days before the Commission constituted by Macdonald C but that hearing was on the State's notice of motion filed on 12 June 2003 seeking orders that Ms Macatangay's proceeding be dismissed because a binding settlement had been reached on 21 March 2003. In this Court, Ms Macatangay went through numerous documents from 2003 concerning the purported (as she contended) compromise of the proceeding. The starting point was a without prejudice offer from the Department of Education and Training concerning the litigation dated 20 March 2003 and which attached "an amended offer of settlement". A response from a solicitor, which gives every indication that he was acting for her and had authority to do so, dated the following morning, referred to discussions concerning an additional recital, and then added "On the above basis, the matter is settled and I'll proceed accordingly to notify the Commissioner's associate". There followed a series of communications as to the terms of a deed of release. It was and is common ground that no deed of release was ever executed. 2. Ms Macatangay also took the Court to transcripts of direction hearings before Macdonald C in June and July 2003 which recorded negotiations or attempts to conciliate by the parties and which concluded with the Commissioner's statement that "[t]he upshot of those off-record discussions is that the matter remains unresolved". On the latter of those occasions, on 24 July 2003, counsel for the Department is recorded as saying: Commissioner, on 12 June 2003, the respondent filed a notice of motion seeking orders that the proceedings be dismissed or stayed on the grounds of the reasons set out, they being principally that there was a binding agreement entered into between the parties in settlement of the matter on 21 March 2003. We'd seek to have a hearing date for that motion to be dealt with and we'd also seek directions. 1. The motion was set down for hearing, and Macdonald C determined that there was a binding settlement and dismissed the proceedings. 2. Ms Macatangay appealed to a Full Bench of the Industrial Relations Commission and her appeal was dismissed: Miguela Macatangay v NSW Department of Education and Training [2005] NSWIRComm 69. 3. Later in 2005, Ms Macatangay commenced proceeding 20144 of 2005 against the State of New South Wales seeking damages for the State's negligence in conduct involving her employment as a teacher. Ms Macatangay relied upon an interlocutory decision of McClellan CJ at CL dated 15 February 2006, granting her leave to replead, and that the basis upon which Ms Macatangay had put her case in oral argument on that occasion was that the Department had been negligent in placing her name on a confidential register which had the consequence that she could not in future be employed by the Department: Macatangay v NSW Department of Education & Training [2006] NSWSC 214. 4. On 9 February 2007, proceeding 20144 of 2005 was summarily dismissed for reasons given by Grove J: Macatangay v State of New South Wales [2007] NSWSC 57. His Honour said at [27]: I have elaborated in some detail the scope of the issues between the parties and the terms of settlement which were reached in the IRC proceedings. In my view it is amply demonstrated that this action seeks to relitigate what was finali[s]ed by the settlement of that litigation. … [T]he oral submissions by the plaintiff were cogently demonstrative of her desire in this Court to agitate once again issues which had been determined against her in the IRC. 1. Ms Macatangay applied, out of time, to appeal from those orders. Her appeal was dismissed as incompetent by the Registrar but on review before a Judge of Appeal, that decision was set aside: Macatangay v State of New South Wales [2009] NSWCA 81. In support of her current motion, Ms Macatangay emphasised that Basten JA said at [38] that there was "no material which would allow me to be satisfied that a future leave application would be doomed to fail". 2. However, the Court of Appeal, constituted by Allsop P, Tobias JA and Handley AJA, delivered a joint judgment on 4 September 2009 dismissing the appeal as incompetent and refusing leave to appeal: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272. As was pointed out in the present hearing, the Court said at [23]: Whatever the limits of the Commission's jurisdiction in unfair dismissal cases may be, it had jurisdiction to decide whether such proceedings have been settled. Decisions of the Commission within jurisdiction are final and can give rise to res judicata estoppels. This principle is well established. 1. Special leave to appeal was refused by the High Court on 30 March 2010 (Heydon and Bell JJ). 2. On 16 April 2012, the Court of Appeal dismissed Ms Macatangay's subsequent motion to reopen the decision: Macatangay v State of New South Wales [2012] NSWCA 108. The High Court once again refused special leave to appeal (Hayne and Crennan JJ). 3. On 25 October 2012, the Court of Appeal dismissed a further application to file a notice of motion in the proceeding: Macatangay v State of New South Wales [2012] NSWCA 341. On that occasion, the Court indicated at [8]-[9] that it was minded to make an order under the Vexatious Proceedings Act but would not do so without hearing further from Ms Macatangay. The Court's subsequent judgment, which was determined on the papers, in Macatangay v State of New South Wales [2012] NSWCA 374 records at [5]: On 5 November 2012, Mrs Macatangay filed a submission purportedly pursuant to the Court's direction made on 25 October 2012. The submission which runs to 15 pages with numerous annexures seeks to once again argue her case that she was wrongly prohibited from employment by the Department in 2002; that there was no settlement of the proceedings which she instituted in the Industrial Relations Commission; and that the decision of Grove J was wrong and was a clear demonstration of an abuse and misuse of his Honour's power as an officer of the Court. Consideration 1. In light of that background, the notice of motion on 18 July 2023 may be resolved concisely. 2. First, we do not accept Ms Macatangay's submission that the order made on 15 November 2012 did not comply with s 8(3) of the Vexatious Proceedings Act 2008 (NSW). That section requires that a Court must not make a vexatious proceedings order "without hearing the person or giving the person an opportunity of being heard". That provision was complied with by the request for and the receipt of substantial written submissions from Ms Macatangay. There is nothing in the material placed before this Court to indicate that Ms Macatangay sought an oral hearing in addition to the written submissions she supplied. More generally, a statutory requirement that a person be given an "opportunity of being heard" does not without more entail that there must be an oral hearing. As Heerey J explained in Jorgensen v Australian Securities & Investment Commission [1999] FCA 356; 30 ACSR 481 provisions of this kind simply enact the common law hearing rule, which does not require an oral hearing in all or indeed most cases. The Vexatious Proceedings Act refers explicitly in s 15(2) to the absence of an "oral hearing", which tends to confirm that the "opportunity to be heard" in s 8(3) does not entail an oral hearing. Consistently with this, in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [13]-[14] the same practice of complying with s 8(3) through permitting the filing of written submissions was adopted. 3. Secondly, s 9 of the Act confers power to vary or set aside a vexatious proceedings order. In that respect, a vexatious proceedings order lacks the finality of many orders of courts which are final. Parts of Ms Macatangay's application may fairly be regarded as an application to set aside the order made on 15 November 2012. In particular, she says that her applications are not vexatious because the proceedings in the Industrial Relations Commission were never compromised, and none of the courts before which she has appeared have listened to her case. However, for reasons which will be elaborated below, none of Ms Macatangay's written or oral submissions provides any proper basis for varying or setting aside the extant order. Indeed, they confirm that she is still determined to re-litigate the very points which have been decided against her. 4. Thirdly, no basis has been established to warrant the grant of leave as required by s 13. The entirety of Ms Macatangay's submissions overlap with what has been put forward, more than once, to other Courts, save for a point based on s 87 of the Industrial Relations Act 1996 (NSW). 5. Fourthly, the difficulties confronted by Ms Macatangay's application are insurmountable. At the forefront of her submissions is the proposition that the proceedings in the Industrial Relations Commission were not compromised. She is bound by the determinations of the Industrial Relations Commission to the contrary. She maintains that that position is inconsistent with what occurred subsequent to March 2003, including the exchange of correspondence between the parties and a statement by the Commissioner in June 2003 that "the matter was unresolved". Neither of those propositions is correct in law. It is perfectly possible for litigation to be compromised without the parties executing a deed. It is also perfectly possible for there to be a dispute about whether litigation has been compromised (indeed, this category of dispute is far from uncommon). What was undeniably unresolved in June 2003 was the dispute as to whether, as the State contended, the proceeding had been compromised, or whether as Ms Macatangay contended, no binding compromise had been made. That dispute was the subject of the State's notice of motion which was determined in favour of the State some 20 years ago. Ms Macatangay is correct to submit that there has been no hearing on the merits for her action in negligence against the State. But that is because it has been authoritatively determined by Grove J and the Court of Appeal that that action seeks to relitigate what was finalised by the compromise in the proceedings in the Industrial Relations Commissions. 6. Fifthly, Ms Macatangay relied on s 87 of the Industrial Relations Act, which provides: Arbitration where conciliation unsuccessful (1) When, in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful, the Commission is to determine the claim by making an order under section 89, dismissing the application or making any other order it is authorised to make under this Act. (2) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes such an order. 1. Her point was that statute superseded common law, and s 87 required the Commissioner to determine the dispute between her and the Department concerning whether she had been unfairly dismissed. However, as was pointed out in the hearing of her motion, that section does not prevent there being a binding agreement reached between the parties. That is what the State contended occurred on 21 March 2003 by its motion of 12 June 2003, and that was what was determined by the Industrial Relations Commission thereafter. 2. Finally, Ms Macatangay repeatedly contended that none of the judges who heard the various motions heard her arguments, and they only heard the arguments brought by the State. There is no basis for the submission, and we expect it is a product of Ms Macatangay not accepting the analysis in the previous paragraphs. To the contrary, what has occurred is the application of orthodox and well-settled principles of law. The difficulties for Ms Macatangay appear to be that she does not accept that proceedings can be compromised in the absence of a deed, she does not accept that a solicitor with apparent authority to bind a client can compromise litigation, and she does not accept that her action for negligence against the State is inconsistent with the compromise for the unfair dismissal claim in the Industrial Relations Commission. The last point is illustrated by the relief sought in paragraphs 1(d) and 2 of her motion which seek to overturn the order made by Grove J which was upheld by this Court. 3. For those reasons, the orders sought in the notice of motion dated 18 July 2023 should not be made. Lest there be any dispute about the automatic dismissal effected by s 13(3) of the Vexatious Proceedings Act, this Court will order that the notice of motion be dismissed. There is no reason to depart from the usual rule as to costs. Ms Macatangay should pay the costs of the State of New South Wales. ********** 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: 12 October 2023