Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Macatangay v State of New South Wales [2013] NSWCA 237 Hearing dates: 16 July 2013 Decision date: 29 July 2013 Before: Macfarlan JA at [1]; Leeming JA at [2]; Sackville AJA at [3] Decision: 1.Pursuant to UCPR, r 6.27, order that the Attorney-General be joined as the second respondent to the motion filed by the applicant on 14 March 2013 ("Motion"). 2.The Motion is dismissed. [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.] Catchwords: PROCEDURE - motion to set aside vexatious proceedings order - no reasonable grounds Legislation Cited: Vexatious Proceedings Act 2008, ss 4, 5, 6, 8, 9, 14 Uniform Civil Procedure Rules 2005, r 6.27 Cases Cited: Bar-Mordecai v Attorney-General (NSW) [2012] NSWCA 207 Forestry Tasmania v Ombudsman (No 2) [2010] TASSC 52 Macatangay v State of New South Wales [2007] NSWSC 57 Macatangay v State of New South Wales (Unreported, 8 November 2007) Macatangay v State of New South Wales (Unreported, 22 November 2007) Macatangay v State of New South Wales (Unreported, 1 May 2008) Macatangay v State of New South Wales (Unreported, 27 August 2008) Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Macatangay v State of New South Wales (Unreported, 20 September 2010) Macatangay v State of New South Wales [2012] NSWCA 108 Macatangay v State of New South Wales [2012] NSWCA 305 Macatangay v State of New South Wales [2012] NSWCA 341 Macatangay v State of New South Wales [2012] NSWCA 374 Category: Principal judgment Parties: Miguela Alvarez Macatangay (Applicant) State of New South Wales (First Respondent) Attorney-General of New South Wales (Second Respondent) Representation: Solicitors: In person (Applicant) Mr DF Galbraith, Crown Solicitor's Office (NSW) (Second Respondent) File Number(s): 2005/269316 Decision under appeal Jurisdiction: 9003 Citation: Macatangay v State of New South Wales [2012] NSWCA 374 Date of Decision: 2012-11-15 00:00:00 Before: Macfarlan JA, Sackville AJA, Tobias AJA File Number(s): 2005/20144 or 2005/269316 Judgment 1MACFARLAN JA: I agree with Sackville AJA. 2LEEMING JA: I agree with Sackville AJA. 3SACKVILLE AJA: On 15 November 2012, this Court (Macfarlan JA, Sackville AJA, Tobias AJA) made orders against the present applicant on its own motion, pursuant to s 8(7) of the Vexatious Proceedings Act 2008 ("VP Act"): Macatangay v State of New South Wales [2012] NSWCA 374. The Court ordered that: (a) all proceedings in New South Wales already instituted by the applicant in matter Nos 20144 of 2005 or 269316 of 2005 ("the Matter") 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 Matter. I refer to these as "the Orders". 4The applicant filed a notice of motion on 14 March 2013 seeking the following orders: 1. Pursuant to section 9 of the Vexatious Proceedings Act 2008, set aside the vexatious proceedings order made by the Full Bench constituted by Macfarlan JA, Tobias AJA and Sackville AJA handed down on 15 November 2012 for matter 20144 of 2005 or 269316 of 2005. 2. Pursuant to section 14 of the Vexatious Proceedings Act 2008 grant leave to institute proceedings in relation to the claim for relief for the damage and loss suffered as a consequence of the wrongful prohibition to be employed in any capacity. Vexatious Proceedings Act 5Section 8 of the VP Act relevantly provides as follows: Making of vexatious proceedings order (1) When orders may be made An authorised court may make an order under this section (a "vexatious proceedings order") in relation to a person if the court is satisfied that: (a) the person has frequently instituted or conducted vexatious proceedings in Australia, or (b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia. (2) For the purposes of subsection (1), an authorised court may have regard to: (a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and (b) orders made by any Australian court or tribunal (including orders made before the commencement of this section). (3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard. (4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons: (a) the Attorney General, ... (7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person: (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person. 6Section 6 defines "vexatious proceedings" to include: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 7Section 5 provides as follows: (1) In this Act, "institute", in relation to proceedings, includes: (a) for civil proceedings-the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and ... (2) A reference in this Act to instituting proceedings includes a reference to instituting: (a) proceedings generally, and (b) proceedings in relation to a particular matter, and (c) proceedings against or in relation to a particular person, and (d) proceedings in a particular court or tribunal. 8The definition of "proceedings" in s 4 of the VP Act includes: (a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and (c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way. 9Section 13(1) of the VP Act provides that if a court makes a vexatious proceedings order prohibiting a person from instituting proceedings, the person may not do so without the leave of an appropriate Court under s 16. If proceedings are instituted in contravention of s 13(1), the proceedings are stayed until they are dismissed or taken to be dismissed: s 13(2). Proceedings that are stayed by s 13(2) are taken to be dismissed 28 days after the proceedings were first instituted: s 13(3). 10Sub-sections 14(1) and (2) of the VP Act provide that a person who is subject to a vexatious proceedings order prohibiting the person from instituting proceedings may apply for leave to institute proceedings that would otherwise be prohibited. The applicant is required to file with the application an affidavit that discloses certain matters, including all proceedings he or she has previously instituted in Australia and all facts material to the application, whether supporting or adverse to it, that are known to the applicant: s 14(3). The Court to which the application is made may dispose of it by dismissing the application under s 15 or granting the application under s 16: s 14(5). 11Section 15 requires the Court to dismiss the application if it considers that the affidavit filed by the applicant does not substantially comply with s 14(3), the proceedings are vexatious proceedings or there is no prima facie ground for the proceedings. 12Section 16(1) specifies procedural requirements that must be complied with before a court grants an application for leave made under s 14. The Court is to grant leave only if satisfied that the proceedings are not vexatious proceedings and that there are one or more prima facie grounds for the proceedings: s 16(4). 13The procedures laid down in the VP Act for the making and disposition of applications for leave to institute proceedings create a number of difficulties: see Bar-Mordecai v Attorney-General (NSW) [2012] NSWCA 207, at [51] ff, per Basten JA (with whom Beazley JA and Sackville AJA agreed). It is not necessary to consider these in the present case. Joinder Application 14The notice of motion filed by the applicant named the State of New South Wales ("the State") as a "defendant" to the application. The file number was said to be 20144 of 2005 or 269316 of 2005. These were the file numbers given to the application dealt with by the Court in the judgment of 15 November 2012. It appears that the State has filed a submitting appearance in relation to the applicant's motion. 15By a notice of motion filed on 26 June 2013, the Attorney-General of New South Wales sought an order pursuant to Uniform Civil Procedure Rules 2005 ("UCPR"), r 6.27, joining him as a second respondent to the applicant's motion. Written submissions filed on behalf of the Attorney-General contended that the joinder was "necessary to the determination of all matters in dispute" within the meaning of UCPR, r 6.24. 16The submissions pointed out that in the absence of an order for joinder, there would be no party with an interest in acting as a contradictor to the motion and thus the Court would be deprived of the assistance that a contradictor can provide. The submissions also noted that the Attorney-General is the Minister responsible for the administration of the VP Act and has an interest in advancing arguments as to the proper construction of the legislation. Moreover, the Attorney-General is expressly named as a person on whose application an "authorised court" may make a vexatious proceedings order: s 8(4)(a). Thus, had the Court not acted of its own motion in proposing orders against the applicant, the Attorney-General would have been entitled to seek a vexatious proceedings order against her. 17One consequence of joining a person as a party to proceedings is that the person may become entitled to a costs order if successful, or may become liable to a costs order if unsuccessful. If the Court allows submissions to be received from an amicus curiae, the amicus is not a party and ordinarily will not receive the benefit of a costs order even if his or her submissions are accepted: see Forestry Tasmania v Ombudsman (No 2) [2010] TASSC 52, at [14]-[26], per Porter J, where the authorities are discussed. 18Mindful of this distinction, the Court inquired of Mr Galbraith, who appeared for the Attorney-General, whether he would seek an order for costs if the Attorney-General was joined as a party and the applicant's motion was unsuccessful. Mr Galbraith indicated that in these circumstances the Attorney-General would not seek such an order. On this basis, the Court granted the Attorney-General's motion to be joined as the second respondent to the applicant's motion. Background 19The applicant's repeated attempts to re-litigate issues decided adversely to her long ago illustrate the great difficulty the legal system often has in bringing litigation to an end where an unsuccessful party adamantly and obdurately refuses to accept the outcome. The history of the proceedings up to and including April 2012 is recounted in two judgments of the Court: Macatangay v State of New South Wales (Unreported, 20 September 2010) and Macatangay v State of New South Wales [2012] NSWCA 108 ("April 2012 Judgment"). I shall return to some of that history later. 20In the April 2012 Judgment, this Court, on the application of the State, restrained the applicant from making any further applications in the Matter without the leave of the Court. In the Matter, the applicant sought damages from the State on the ground that she had been wrongfully dismissed in 2002 from her position as a teacher. 21In the April 2012 Judgment, this Court noted that, leaving aside the applicant's unsuccessful proceedings in the Industrial Relations Commission, the Matter had been before the Supreme Court (either a single Judge or the Court of Appeal) on some eight occasions. In addition, the applicant had brought three unsuccessful special leave applications in the High Court. 22Since the April 2012 Judgment further developments have taken place. 23On 21 September 2012, this Court (Macfarlan JA, Sackville AJA, Tobias AJA) dismissed a motion by the applicant seeking leave to file a further application in the Matter (Macatangay v State of New South Wales [2012] NSWCA 305). 24On 25 October 2012, the Court dismissed a further motion by the applicant seeking leave to file an application in the Matter: Macatangay v State of New South Wales [2012] NSWCA 341. The Court noted (at [6]) that the applications made by the applicant over a number of years arguably fell within sub-paragraphs (a) and (c) of the definition of "vexatious proceedings" in s 6 of the VP Act. The Court also noted (at [7]) that it had power under s 8(4) of the VP Act to make a vexatious proceedings order of its own motion, if satisfied that the applicant had frequently instituted vexatious proceedings in Australia. The Court indicated (at [8]) that it was minded to make such an order. However, it provided an opportunity to the applicant to file written submissions in opposition to the making of a vexatious proceedings order. 25On 5 November 2012, the applicant filed submissions opposing the making of an order against her. In the judgment of 15 November 2012, the Court made the orders set out earlier in this judgment. The Court gave the following reasons: 9 The history of this matter makes it patently clear that over a number of years [the applicant] has instituted proceedings in New South Wales which are either an abuse of the process of the Court or which she has instituted and pursued without reasonable grounds. Her submission ... goes over old ground and concludes with a plea that she be permitted to pursue her claim ... which was dismissed by Grove J [in 2007] pursuant to UCPR Rule 13.4. That rule relevantly empowers a court to dismiss proceedings where they are vexatious or disclose no reasonable cause of action or are an abuse of process of the court. It is apparent from her submission that [the applicant] will continue, unless a vexatious proceedings order is made, to pursue the same claims as she has been making for some time and in respect of which her numerous applications relating to those claims have been dismissed in some cases on the ground that they constituted an abuse of the court's processes. 10 In the foregoing circumstances, the Court is satisfied that [the applicant] has frequently instituted or conducted vexatious proceedings in Australia which justifies the making of a vexatious proceedings order. Reasoning 26The applicant filed written submissions which seek to establish that she has reasonable grounds for pursuing the Matter, notwithstanding her many unsuccessful attempts to reopen it. The submissions in substance simply repeat the assertions that the applicant has repeatedly made and that have been repeatedly rejected by this and other courts. Her submissions add nothing to what she has previously put in support of her claim against the State. They provide no basis for reopening the Matter that, as I have indicated, was concluded long ago. 27In an affidavit filed on 14 March 2013, the applicant contends that this Court erred in making the Orders because none of the proceedings instituted by her were within the definition of "vexatious proceedings" in s 6 of the VP Act. In essence, the applicant asserts that each of her many applications was well founded and that each of the decisions adverse to her was flawed. 28At the hearing, because of the late filing of the Attorney-General's submissions, the applicant was granted leave to file further written submissions in response to those submissions. The further submissions, which largely repeat the matters raised in the applicant's affidavit, have been taken into account. 29As this Court pointed out in its judgment of 15 November 2012, Grove J in 2007 dismissed the proceedings brought by the applicant against the State as an abuse of the process of the Court: Macatangay v State of New South Wales [2007] NSWSC 57. An application for leave to appeal was dismissed by this Court on 8 November 2007: Macatangay v State of New South Wales (Unreported, 8 November 2007). 30On 12 or 13 November 2007, the applicant filed a notice of motion seeking to set aside the orders made by Grove J on the ground that they were obtained by fraud. That motion was dismissed on 22 November 2007 by Harrison AsJ: Macatangay v State of New South Wales (Unreported, 22 November 2007). Her Honour also restrained the applicant from making any further applications in the Matter without the leave of the Court. Her Honour's judgment indicates that the motion to set aside the judgment on the grounds of fraud was clearly instituted without any reasonable grounds for doing so. 31On 1 May 2008, this Court refused leave to appeal from the decision of Harrison AsJ: Macatangay v State of New South Wales (Unreported, 1 May 2008). Mason P (with whom Handley AJA agreed) said that the applicant had advanced no arguable case for concluding that Harrison AsJ had erred or that the orders made by Grove J should be disturbed. 32The applicant subsequently purported to appeal as of right from the decision of Grove J. This appeal was struck out as incompetent on 4 September 2009. The Court also refused leave to the applicant to appeal from Grove J's decision: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272. The Court said that the applicant had failed to establish any grounds that would justify it differing from the decision of a differently constituted Court 22 months earlier to refuse the applicant leave to appeal. The judgment of the Court makes it clear that the second application for leave to appeal was instituted or pursued without reasonable grounds. 33The applicant filed a further notice of motion on 14 August 2008 in the Supreme Court. She sought orders, inter alia, setting aside the judgment of Grove J. This application was dismissed by Harrison J on 27 August 2008: Macatangay v State of New South Wales (Unreported, 27 August 2008). It, too, was clearly instituted and pursued without reasonable grounds. 34The applicant filed yet another motion in the Supreme Court on 14 May 2010 seeking to reopen the Matter. On 20 May 2010, Hulme J refused leave to file the motion, which was clearly hopeless. 35In refusing the applicant's application for leave to appeal from the decision of Hulme J, this Court stated (Macatangay v State of New South Wales (Unreported, 20 September 2010)) that: the proceedings presently before the Court are a clear abuse of its process and cannot possibly serve any useful purpose. 36On 16 April 2012, this Court dismissed yet further motions by the applicant seeking to reopen the Matter. Again, a reading of the judgment shows that the motions were filed and pursued without any reasonable grounds. 37The procedure was repeated on 21 September 2012, when yet another motion to reopen the Matter was dismissed on the papers by this Court. 38This account, which is by no means a full history of the groundless applications instituted and pursued by the applicant, shows that the Court had more than a sufficient basis for concluding on 15 November 2012 that the applicant had "frequently instituted or conducted vexatious proceedings" within the meaning of s 8(1)(a) of the VP Act. The contentions advanced by the applicant in her affidavit cast no doubt whatsoever on the conclusion reached by this Court on 15 November 2012 or the Orders made on that date. 39It is not necessary to consider on the present application the circumstances in which a Court might, pursuant to s 9 of the VP Act, set aside a vexatious proceedings order. It is enough to say that the applicant has not shown any plausible grounds for doing so. 40The applicant also seeks leave pursuant to s 14 of the VP Act to institute proceedings in relation to her claim for damage and loss "suffered as a consequence of the wrongful prohibition to be employed in any capacity". The grant of leave sought by the applicant, so it appears, is intended to enable her to reopen the Matter, although she has not specified the precise nature of the proceedings she wishes to institute. 41The applicant filed an affidavit which purports to comply with s 14(3) of the VP Act. It is very unlikely that the affidavit does comply with the requirements of s 14(3). It asserts that all the decisions adverse to her were erroneous, unfair or otherwise tainted by error, but fails to record all facts adverse to her application for leave, including the findings that her claim to reopen the Matter was without foundation. 42It is not, however, necessary to determine whether the affidavit complies with s 14(3) of the VP Act. For the reasons that have been given, the applicant has shown no prima facie ground for initiating any further proceedings in relation to the Matter. Her application for leave must therefore be dismissed pursuant to s 15(1)(c) of the VP Act. Orders 43The following orders should be made: 1 Pursuant to UCPR, r 6.27, order that the Attorney-General be joined as the second respondent to the motion filed by the applicant on 14 March 2013 ("Motion"). 2 The Motion is dismissed. ********** 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: 29 July 2013