NSW Land & Housing Corporation v von Reisner [2009] NSWSC 128

New South Wales Supreme Court

CITATION : NSW Land & Housing Corporation v von Reisner [2009] NSWSC 128

HEARING DATE(S) : 17 - 19 November 2008

JUDGMENT DATE : 25 March 2009

JUDGMENT OF : Mathews AJ

DECISION : Orders sought in Summons declined. Plaintiff to pay the costs of the Defendant.

CATCHWORDS : PROCEDURE - declaration sought that litigant vexatious - whether proceedings instituted "habitually and persistently" - whether proceedings "vexatious" - collateral purpose

LEGISLATION CITED : Dust Diseases Tribunal Act 1989 Supreme Court Act 1970

CATEGORY : Principal judgment

Attorney-General v Wentworth (1988) 14 NSWLR 482 Attorney- General for New South Wales v Solomon (1978) 8 NSWLR 667 CASES CITED : Hunters Hill Municipal Council v Pedler (1976) 1 NSWLR 478 Jones v Skyring (1992) 109 ALR 303 Ramsey v Skyring (1999) 164 ALR 378 Re Vernazza (1960) 1 QB 197

PARTIES : New South Wales Land and Housing Corporation (Plaintiff) Koidu von Reisner (Defendant)

FILE NUMBER(S) : SC 16096/08

COUNSEL : J Turnbull (Plaintiff)

SOLICITORS : McCabe Terrill Lawyers (Plaintiff) Defendant in person

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Acting Justice Mathews

Wednesday 25 March 2009

16096/08

NSW Land and Housing Corporation v Koidu von Reisner

JUDGMENT

Introduction 1 HER HONOUR: The plaintiff in this action, the New South Wales Land and Housing Corporation ("the Corporation"), seeks an order, pursuant to s 84(2) of the Supreme Court Act 1970 ("the Act"), that the defendant (Ms von Reisner) be declared a vexatious litigant with the consequence that she will require leave in order to institute any legal proceedings against the Corporation. 2 The application was originally made by way of Notice of Motion in proceedings number 20466 of 2004 in which the Corporation was the defendant. However, by a separate Notice of Motion, Ms von Reisner had sought to have those proceedings transferred to the Dust Diseases Tribunal ("the DDT") pursuant to s 12 of Dust Diseases Tribunal Act 1989 ("the DDT Act"). Mr Turnbull of counsel, who appeared for the Corporation, freely conceded that those proceedings fell within s 11(1) of the DDT Act in that Ms von Reisner was claiming damages in respect of a dust-related condition which she said was attributable to a breach of duty owed to her by the Corporation. This being the case, s 12 of the DDT Act requires that the proceedings be transferred to the DDT, together with any ancillary or related matters. Accordingly I gave leave to the Corporation to issue a fresh Summons seeking the same orders under s 84 of the Act as had been sought in proceedings number 20466 of 2004, and returnable forthwith. I ordered by consent that proceedings number 20466 of 2004 be transferred to the DDT. I then took submissions from both parties in the new proceedings which related solely to the Corporation's application under s 84. 3 The following, briefly, is the background of this matter.