New South Wales Court of Appeal CITATION: Vescio v Guardianship Tribunal of New South Wales [2010] NSWCA 227 HEARING DATE(S): 25 August 2010 JUDGMENT OF: McColl JA at 1,15; Young JA at 13 EX TEMPORE JUDGMENT DATE: 25 August 2010 DECISION: Application for leave to appeal dismissed with costs CATCHWORDS: PROCEDURE – civil – summary disposal – dismissal – whether reasonable cause of action – frivolous or vexatious claims – no issue of principle Defamation Act 2005 (NSW) LEGISLATION CITED: Guardianship Act 1987 (NSW) Uniform Civil Procedure Rules 2005 CATEGORY: Principal judgment CASES CITED: Vescio v Guardianship Tribunal of New South Wales [2009] NSWDC 341; (2009) 10 DCLR (NSW) 83 PARTIES: Carmelo Michael Vescio - Applicant Guardianship Tribunal of New South Wales - Respondent FILE NUMBER(S): CA 2010/17425 COUNSEL: Miss S T Chrystanthou for the Respondent SOLICITORS: Applicant in person I V Knight Crown Solicitor for the Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2714/09 LOWER COURT JUDICIAL OFFICER: Gibson DCJ LOWER COURT DATE OF DECISION: 15/12/09 LOWER COURT MEDIUM NEUTRAL CITATION: [2009]NSWDC 341 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/17425 McCOLL JA YOUNG JA 25 August 2010 MICHAEL VESCIO v GUARDIANSHIP TRIBUNAL OF NEW SOUTH WALES Judgment ex tempore 1 McCOLL JA: This is an application by Michael Vescio for leave to appeal from a judgment of Judge Gibson of the District Court of New South Wales delivered on 15 December 2009: Vescio v Guardianship Tribunal of New South Wales [2009] NSWDC 341; (2009) 10 DCLR (NSW) 83. Her Honour was dealing with a summary judgment application brought by the Guardianship Tribunal of New South Wales pursuant to Uniform Civil Procedure Rules 2005 13.4 or UCPR 14.28. 2 The proceedings the respondent sought to dismiss were brought by the applicant seeking damages for defamation in relation to determinations made by the Guardianship Tribunal on six dates set out in paragraph 2 of the statement of claim. Two of those dates were in 2005, and hence preceded the commencement of the Defamation Act 2005 (NSW) (the "2005 Act") on 1 January 2006. Four of the publications were made following the commencement of the 2005 Act. 3 The respondent adduced evidence before the primary judge which her Honour accepted that each of the publications by the respondent on those dates, was a publication by a tribunal exercising a judicial function by reason of the powers conferred on it by Part 6 of the Guardianship Act 1987 (NSW). It also established it was an Australian tribunal and thus protected by absolute privilege pursuant to s 27(2) of the 2005 Act. The respondent submitted before her Honour that in so far as publications took place prior to the commencement of the 2005 Act, they were protected by absolute privilege at common law. Her Honour accepted that submission also: primary judgment (at [12] and [35]). 4 Based on those findings her Honour concluded (at [30]) that the matters in respect of which the applicant sought to pursue the respondent for defamation were protected by absolute privilege. Accordingly the proceedings were frivolous and vexatious within the terms of UCPR 13.4 and also so hopeless as to amount to an abuse of process warranting being struck out pursuant to UCPR 14.28 (1)(c). 5 Her Honour gave other reasons for concluding that the statement of claim should be dismissed. It is unnecessary to deal with those matters for the purposes of dealing with the application for leave to appeal from her Honour's judgment. 6 The applicant who has appeared today in person has provided the Court with written submissions to which I will come shortly and also has filed materials in support of his application for leave to appeal. He submits that the Court should grant leave to appeal primarily because her Honour ought to have permitted his action to proceed to trial by jury. 7 The applicant does not challenge her Honour's conclusion, however, that the matter was protected by absolute privilege. The applicant has not, accordingly, identified any error in the primary judge's conclusion that the matters complained of were protected by absolute privilege. No action in defamation can be brought for statements made by a tribunal exercising judicial functions. It was, accordingly, correct for the primary judge to conclude the statement of claim did not disclose a reasonable cause of action: UCPR 13.4(1)(b). The case does warrant a grant of leave to appeal. 8 Annexure C to the document the applicant handed to the Court when the application commenced listed what appear to be a number of matters involving the applicant or his mother who appears to have been under the protection of the Guardianship Tribunal for some time. In this application he asked that the Court consider the matters I identified by numbers 6, 7, 10, 13, 14, 23, 25, and a judgment of Justice Palmer delivered in early 2009. He submitted the Court should entertain, as I understand it, a review of each of those decisions in order to afford him natural justice. 9 It would be apparent from the date of Justice Palmer's judgment to which I have referred to, that the time for any review of such a decision has long since passed. The earliest of the decisions enumerated in annexure C is December 2005. 10 Leaving aside any other procedural irregularities as to the application for this Court now to consider each of those matters, they are all clearly past the time permitted by the rules in which an application even for leave to appeal from each could be advanced. 11 In my view the application for leave to appeal from Judge Gibson's decision should dismissed. 12 Ms Chrysanthou, who appears for the respondent, seeks costs of the application for leave to appeal which the applicant resists. In my view, it is appropriate that the applicant should pay the respondent's costs. 13 YOUNG JA: I agree. 14 I just add this. The applicant appears to read the reasons of Justice Palmer in related protective matter P67/2008 as his Honour saying that he was not prepared to interfere with a discretion of the Guardianship Tribunal because he was not interested in doing his duty in exercising his powers to review that decision. However, a fair reading of what his Honour said is he can find no reason for interfering with the Guardianship Tribunal's exercise of discretion and that is why he dismissed that application. 15 McCOLL JA: The orders of the Court then are the application for leave to appeal is dismissed with costs. ********** 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.