Supreme Court New South Wales Medium Neutral Citation: Paramasivam v Sabanathan [2013] NSWSC 1033 Hearing dates: 28 June 2012 Decision date: 05 August 2013 Before: McCallum J Decision: Plaintiff's claim in defamation dismissed; defendants' application for relief under the Vexatious Proceedings Act refused Catchwords: DEFAMATION - plaintiff claiming to have been defamed by words said in Court in Sri Lanka by lawyer appearing for some defendants - whether any reasonable cause of action disclosed PROCEDURE - application by defendants for relief under Vexatious Proceedings Act - where application brought by private parties against whom only a single set of proceedings had been brought - whether discretion to grant relief should be exercised Legislation Cited: Defamation Act 2005 Evidence Act 1995 Inclosed Lands Protection Act 1901 Judicial Officers Act 1986 Racial Discrimination Act 1975 (Cth) Vexatious Proceedings Act 2008 Uniform Civil Procedure Rules 2005 Cases Cited: Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 Gargan v Kippin Investments Pty Ltd [2009] FCA 398 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Paramasivam v Wheeler [2000] FCA 1559 Paramasivam v Wheeler [2001] FCA 231 Paramasivam v Acquilina [2002] HCA Trans 87 Paramasivam v Howard [2002] HCA Trans 88 Paramasivam v Karmel [2002] HCA Trans 89 Paramasivam v Kemp [2002] HCA Trans 90 Paramasivam v Sendt [2002] HCA Trans 91 Paramasivam v Wheeler [2002] HCA Trans 92 Paramasivam v University of New South Wales [2002] NSWADT 202 Paramasivam v Vice Chancellor, University of New South Wales [2003] NSWADTAP 2 Paramasivam v University of New South Wales [2006] NSWSC 1189 Paramasivam v University of New South Wales [2007] FCA 875 Paramasivam v Shier [2001] FCA 545 Paramasivam v Shier [2002] FCAFC 142 Paramasivam v Juraszek [2002] FCAFC 141 Paramasivam v Tay [2001] FCA 758 Paramasivam v Tay [2002] FCAFC 143 Paramasivam v Randwick City Council [2005] FCA 369 Paramasivam v Randwick City Council (No 2) [2005] FCA 508 Paramasivam v Unversity of New South Wales [2006] NSWSC 1189 Paramasivam v The State of New South Wales (No.2) [2007] FCMA 1033 Pascoe v Liprini [2011] NSWSC 1484 Category: Interlocutory applications Parties: Gajalakshmi Paramasivam (plaintiff) Saraswathy Sabanathan (first defendant) Tharmaratnam Sabanathan (second defendant) Yohananda Sabanathan (third defendant) Mahadevan Sritharan (fourth defendant) Paramanathan Senthilnathan (fifth defendant) Sakthidevy Mahadevan (sixth defendant) Sellathurai Manadevan (seventh defendant) Subramaniam Tharmalingam (eighth defendant) Representation: Plaintiff self-represented P Maddigan (defendants) Bosscher Lawyers (defendants) File Number(s): 2012/80864 Publication restriction: None Judgment 1These are proceedings for defamation commenced by statement of claim filed on 13 March 2012. There are eight defendants to the proceedings. Their relationship to the plaintiff is not clearly explained in the statement of claim but they are evidently all members of the plaintiff's extended family or people otherwise associated with legal proceedings in Sri Lanka concerning the estate of the plaintiff's late brother-in-law. 2The sixth, seventh and eighth defendants are identified in the pleading as being residents of Sri Lanka. In an affidavit sworn by their solicitor, the defendants noted that the statement of claim had not been duly served on those defendants. However, a notice of appearance has been filed on behalf of all defendants including those resident in Sri Lanka. Further, the notice is in the form of a submitting appearance (that is, an appearance submitting to the making of all orders sought, and the giving or entry of judgment in respect of all claims made, except as to costs). That was presumably done in error (curiously, it is a relatively common error in proceedings in this Division of the Court). Nonetheless, by appearing on the present application unconditionally, the overseas defendants have submitted to the Court's jurisdiction. 3On 18 April 2012 the defendants filed a notice of motion seeking to have the proceedings dismissed summarily and, alternatively, to have the statement of claim struck out under r 14.28 of the Uniform Civil Procedure Rules 2005. The notice of motion also seeks relief under the Vexatious Proceedings Act 2008. 4In response to that motion, the plaintiff served subpoenas requiring the defendants who are resident in Australia and the fourth defendant's wife to attend to give evidence at the hearing of the motion. That prompted the defendants to file a second notice of motion on 22 June 2012 seeking to have the subpoenas set aside. At the hearing of the defendants' two applications, I made an order setting the subpoenas aside, reserving my reasons. This judgment gives my reserved reasons for setting the subpoenas aside and determines the defendants' first notice of motion. Reasons for setting aside subpoenas 5The plaintiff represents herself in the proceedings. Accordingly, in accordance with r 7.3 of the Uniform Civil Procedure Rules 2005, no subpoena may be issued at her request except by leave of the Court. The principal point taken by the defendants was that the subpoenas appeared to have been issued in contravention of that rule. The basis for that contention was that the subpoenas did not, on their face, bear any endorsement to indicate that leave had been granted and there was no record to that effect in Justice Link (the Court's electronic record of proceedings). 6There is no express requirement for any such endorsement in the rules. Rule 33.2(4) provides that a subpoena is taken to have been issued upon its being sealed or otherwise authenticated in accordance with sub rule 3. Further, the court file discloses that the plaintiff provided written submissions in support of her request to have the subpoenas issued. That document was filed in the registry on 13 June 2012. At the hearing before me, the plaintiff was evidently under the impression that the registrar had approved the issue of the subpoenas after considering those submissions. In those circumstances, I determined to proceed on the assumption that leave to issue the subpoenas was granted in the registry and to determine the application according to the principles for setting aside a subpoena duly issued. 7The plaintiff's submissions filed in the registry seeking leave to have the subpoenas issued stated: The evidence submitted by the defendants [in support of their first notice of motion] includes communications between the plaintiff and the above persons [the subpoenaed parties] and regarding the plaintiff's representation of the above persons at various points it would be necessary to establish the basis of construction of this claim through examination of the minds of these persons - so that the evidence submitted by the plaintiff in rejection of these claims could be matched towards a wholesome picture of the actual state of affairs - based on which the matter is being heard. 8The plaintiff expanded upon that submission in an affidavit in support of the present applications sworn on 27 June 2012. She explained (at paragraphs 27 to 29) that she sought to examine the minds of the defendants to ascertain the thinking that had prompted them to seek a determination that she is a vexatious litigant. The affidavit reveals that the plaintiff believes that deeper analysis on the part of the defendants would prompt them to revise their view so as to conclude that, rather than abusing the processes of the court, she has contributed "to the development of the judiciary's appreciation of the principles and values on which the laws of racial equality have been founded". 9The affidavit further reveals that the plaintiff wished to establish, through the defendants as witnesses, the contribution she made to their being granted residential status in Australia (paragraph 39 of the affidavit). 10The defendants are competent and compellable to give evidence in the plaintiff's case: see s 12 of the Evidence Act 1995 (cf s 17 of the Act). However, I was not persuaded that there was a legitimate forensic purpose for the subpoenas in the matters outlined on behalf of the plaintiff. As I understood the submission, the plaintiff sought, in effect, to cross-examine the defendants so as to bring them round to her view as to the utility or propriety of various legal proceedings she has brought from time to time. The view of the defendants on that issue is not capable of informing any issue to be determined in the present application. Whether any proceedings brought by the plaintiff are "vexatious proceedings" within the meaning of the Vexatious Proceedings Act is a matter for the Court. Accordingly, I was satisfied that it was appropriate to set the subpoenas aside. Defamation claim 11The manner in which the plaintiff's claim is pleaded reflects her lack of legal training and is plainly embarrassing (in the legal sense). In many respects, the pleading is simply incomprehensible. It makes many assertions of unclear significance. It identifies a number of statements made by both the defendants and the plaintiff which reveal the existence of various disputes between them but which are not capable of being defamatory or which are not alleged to have been published to any person other than the plaintiff. As submitted on behalf of the defendants, the pleading fails to identify the allegedly defamatory publication or publications sued upon, fails to provide particulars of publication and fails to identify the defamatory imputations relied upon. The defendants should not be left to speculate as to those matters. The pleading is liable to be struck out on that basis alone. 12However, in deference to the further arguments put on behalf of the defendants and for the purpose of considering whether the proceedings should be dismissed or whether, alternatively, the plaintiff should have leave to replead, it is appropriate to consider the substance of the claim, to the extent that it can be discerned. 13The pleading identifies three potentially defamatory publications about the plaintiff, which I would characterise as follows (not quite in the terms submitted on behalf of the defendants): (a) a statement made by a lawyer, Mr Yogendra, acting on behalf of the first, second, sixth, seventh and eighth defendants in proceedings before the District Court of Mallakam in Sri Lanka (to which the first, second, sixth, seventh and eighth defendants and the plaintiff are parties) to the effect that the plaintiff was shamelessly after other people's monies and was not accepted by the family as the wife of Mr Subramaniam Paramasivam (statement of claim at [2]). The sixth and seventh defendants are alleged to have been present in court when their lawyer made those statements (statement of claim at [6]) but the legal significance of that assertion is not explained; (b) a statement made by the first defendant to the plaintiff's husband to the effect that the plaintiff and her husband were a disgrace to the first defendant's family (statement of claim at [3]); (c) the republication of the statement made by the lawyer (set out in (a) above) by Mrs Poomathevi Nadarajah to Mr Mylvaganam (statement of claim at [8]). Neither the lawyer nor Mrs Poomathevi Nadarajah is a party to these proceedings. 14A statement of the kind described in (b), whilst undoubtedly hurtful, would be regarded as merely abusive and is not such as to sustain the prosecution of an action in defamation in this Court. 15The primary focus of the argument was on the statement referred to in paragraph (a) above, pleaded in paragraph 2 of the statement of claim as follows: On 16 February 2012, it was stated on behalf of the 1st, 2nd, 6th, 7th and 8th defendants in court that the plaintiff was shamelessly after 'other people's monies' and words to the effect that the plaintiff was not accepted by the family as the wife of Mr Subramaniam Paramasivam - the brother of 1st, 6th and 8th defendants who are all siblings of the deceased person Late Subramaniam Yoganathan, mentioned above. The 3rd, 4th and 5th defendants spoke and/or acted in support of the 1st, 2nd, 6th, 7th and 8th defendants in this issue. 16The plaintiff confirmed that the words are alleged to have been said in the legal proceedings in Sri Lanka relating to the estate of the plaintiff's brother-in-law, who evidently died intestate. She stated, however, that it was "the Australians" whose lawyer had made the statement and that "they obviously would have given instructions from here to Sri Lanka". 17Leaving aside any issue as to whether the words said by the lawyer were published under absolute privilege (under the law of the place of the tort), the principal difficulty is that the statement of claim does not directly plead any cause of action in defamation against any defendant. The un-stated premise of the claim appears to be that the defendants are liable as publishers for statements made in court (in Sri Lanka) by their lawyer. However, no facts are pleaded to support that contention. As currently pleaded, no reasonable cause of action in defamation is disclosed against any defendant. 18Upon close consideration of the balance of the pleading, I am not persuaded that it alleges any actionable defamation. Paragraphs 3 to 7 are directed to the background to the statements made in court on 16 February 2012. Whilst those paragraphs reveal a level of acrimony between different members of the family, they do not identify any discrete defamatory publication sought to be sued on. Paragraph 8 is directed to damage allegedly resulting from the publication in court on 16 February 2012. Paragraphs 9, 10 and 11 are also directed to damage to reputation and the plaintiff's good standing. 19I am satisfied that the statement of claim discloses no reasonable cause of action against any of the defendants. Further, I do not think there is any point in granting leave to replead, particularly in light of the plaintiff's concession that the claim relates to words said in Sri Lanka. If the matter complained of is the words said in court by the lawyer in Sri Lanka (on the basis, not presently pleaded, that the defendants are liable as publishers of those words), the place of the tort is Sri Lanka. If it was intended to rely upon the instructions given to the lawyer in Sri Lanka by means of a telephone call initiated in Australia but received in Sri Lanka, that would also be a publication in Sri Lanka in accordance with the principles stated by the High Court in Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 especially at [26] to [28]. The plaintiff does not appear to seek to vindicate her reputation in New South Wales. 20The defendants submitted that any publication in Sri Lanka "does not give rise to a cause of action in New South Wales". However, as illustrated by the decision of the High Court in Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575, the identification of the place of publication is not the final measure of this Court's authority. The Court's jurisdiction has been regularly invoked in the present case. A statement of claim has been served and the defendants have appeared unconditionally. The more pertinent question is whether the Court should, in the circumstances, decline to exercise its jurisdiction on the basis that this is a clearly inappropriate forum for the trial of the plaintiff's cause (cf Gutnick at [45] to [48] per Gleeson CJ, McHugh, Gummow and Hayne JJ). There is a strong basis for concluding that this is a clearly inappropriate forum for the trial of any action based on the instructions given to the lawyer in Sri Lanka. The plaintiff has put forward no material on the strength of which this Court could be satisfied as to the viability of any such action in this Court. 21For those reasons, I am satisfied that the plaintiff's claim in defamation enjoys no reasonable prospect of success and must be dismissed. Claim for relief under the Vexation Proceedings Act 2008 22The more difficult issue is the relief sought by the defendants under the Vexatious Proceedings Act, as follows: 6 An order that pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW) the Plaintiff is prohibited from instituting proceedings in New South Wales without the leave of the Court. 7 In the alternative to order 6, an order that pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW) the Plaintiff is prohibited from instituting proceedings in New South Wales against the Defendants and the agents of the Defendants collaterally involved in these proceedings without the leave of the Court. 8 An order pursuant to section 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW) all proceedings already instituted by the Plaintiff in New South Wales be stayed. 9 In the alternative to orders 6, 7 and 8, an order for a copy of any decision of the court in this proceeding along with the judgments set out in Schedule A of the Defendants' Notice of Motion be referred to the Attorney General for possible action under the Vexatious Proceedings Act 2008 (NSW) against the plaintiff. 23It may be noted at the outset that the Court could not, in my view, make an order in the terms sought in prayer 7 above. An order prohibiting the institution of proceedings against "the agents of the defendants collaterally involved in these proceedings" is, in my view, too vague. Any person sought to be protected by such an order apart from the defendants would have to be individually named and the basis for their inclusion in the order clearly articulated in the evidence. 24Section 8 of the Vexatious Proceedings Act 2008 relevantly provides: 8 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, (b) the Solicitor General, (c) the appropriate registrar for the court, (d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings, (e) a person who, in the opinion of the court, has a sufficient interest in the matter. (5) An application for a vexatious proceedings order may be made by a person referred to in subsection (4)(e) only with the leave of the authorised court. (6) A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceedings order in relation to a specified person. (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. ... 25"Vexatious proceedings" are defined in s 6, as follows: 6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (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. 26The defendants submitted the proceedings are an abuse of process in that they were brought for the collateral purpose of putting pressure on the defendants in the proceedings in Sri Lanka. They further submitted that the plaintiff has in effect admitted that the proceedings were commenced for such a purpose. That admission was said to have been made in the paragraph 10.6 of the plaintiff's affidavit, as follows (emphasis in original): I affirm my belief that one who perceives collateral advantage would at the same time perceive its other side - collateral disadvantage. I believe that this happens as per law of Nature - that every physical manifestation has two sides - as in Plaintiff and Defendant. I believe that belief itself when manifested without interference on the way, would produce two Equal sides and both sides would be equally visible to a person standing above along the vertically dividing plane of Independence. I affirm my belief that when one does not have subjective powers take up the higher position, the decision is made along the horizontal plane on which the events happened, to manifest objective evidence. I affirm my belief that one standing on the point where the two planes meet needs to have two sights through Janus face. Since no reason based on common principles has been provided as to why the Defendants consider my action to be towards collateral advantage, I affirm that I take the claim to be subjective and that 'collateral advantage' for me, is collateral disadvantage to the Defendants at social level. I affirm my belief that hence their hiring of lawyers to elevate their subjective powers. 27I confess I have difficulty understanding how the defendants were able to make any sense of that paragraph whatsoever, let alone enjoying the confidence to construe it as an admission by the plaintiff that her claim in these proceedings amounts to an abuse of process. I am not persuaded that the plaintiff's claim is anything other than a bona fide attempt to vindicate her reputation in the eyes of her extended family. 28Separately, the defendants claimed to be entitled to make the present application as persons "against or in relation to whom another person has instituted or conducted vexatious proceedings". They submitted that, if the Court were satisfied that the plaintiff's claim in defamation is liable to be dismissed on the basis that it has no reasonable prospects of success, they would, by virtue of that finding, have standing to seek the relief sought in the motion. 29I think I must accept that submission. At first glance, one would not ordinarily think of an action dismissed as having no reasonable prospects of success as necessarily being an abuse of the process of the Court. Upon reflection, however, there can be no reasonable ground for commencing an action which enjoys no reasonable prospects of success. Accordingly, it would appear that the statute intended to comprehend within the definition of "vexatious proceedings" any action objectively lacking reasonable prospects of success, regardless of the subjective purpose of the plaintiff. It follows that the present proceedings are "vexatious proceedings" within the meaning of s 6(c) of the Act and, accordingly, that the defendants have standing to bring the present application under of s 8(4)(d) of the Act. 30My conclusion on that issue is consistent with the analysis by Adamson J in Pascoe v Liprini [2011] NSWSC 1484, where her Honour provided a convenient summary of the principles relating to vexatious proceedings, beginning with a consideration of s 6: "10 These categories are not discrete, since each of the sub-paragraphs (b)-(d) could properly be regarded as an abuse of process of a court or tribunal. Furthermore, the difference between sub-paragraph (b), which connotes a subjective intention on the part of the Defendant, and sub-paragraph (d), which does not, and is concerned with effect and consequence, rather than motive or design, relieves the Court of the obligation of determining whether the respondent to such an application intends the consequences of his or her actions, or does not. 11 The term "proceedings" is defined by s 4 of the Act to include interlocutory proceedings as well as appeals. This means that the Court can have regard to baseless applications or appeals: Attorney General (NSW) v Wilson [2010] NSWSC 1008 (Wilson) at [15]. The term "proceedings" includes matters not only before courts, but also before tribunals. 12 The purpose of an order is not to impose punishment for past litigious misdeeds, but to shield both the public and the Court itself: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3], cited with approval in Attorney General v Gargan at [8]. 13 It is a serious thing to deprive litigants of their access to the courts: Wilson at [11]. 14 The term "frequently" is relative; it must be looked at in the context of the litigation being considered: Wilson at [12]; Attorney General (NSW) v Croker [2010] NSWSC 942 at [22]; Attorney General v Gargan at [7]; Siteberg Pty Ltd v Maples [2010] NSWSC 1344 at [31]-[32]. It is not necessary for a person to commence a large number of proceedings in order for it to be said that the person has done so frequently: Siteberg at [31]. The individual number of proceedings can be quite small if, for example, they are an attempt to re-litigate an issue already determined against the person: Wilson at [14]; Attorney General v Gargan at [7]. 15 A litigant's own protestation as to his or her mental state may be relevant - "frequently enough, the vexatious are betrayed out of their own mouths": Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [9], cited with approval in Attorney General v Gargan at [8]. ... 18 While the Court needs to form its own view about each piece of litigation relied on by the Plaintiff, the Court is entitled to have regard to the result of the proceedings, and where appropriate, the findings of, and views expressed by, the various judicial officers who dealt with them: Wilson at [22]; Attorney General v Croker [2010] NSWSC 942 at [125]; Attorney General v Gargan at [7]. 19 As to the exercise of discretion, Perram J said in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [12], cited with approval in Attorney General v Gargan at [8]: "... the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise." 31In applying those principles, it is necessary to examine the plaintiff's litigation history as well as her other related conduct and her defence to the present application in order to determine whether she has frequently instituted vexatious proceedings, the extent to which she has insight into her litigious history and whether the commencement of vexatious proceedings in the future is likely. Plaintiff's litigation history 32In support of the application, the defendants relied upon the affidavits of Mr Jack Leitner, solicitor, sworn 17 April 2012, 31 May 2012 and 27 June 2012. Mr Leitner's first affidavit annexed a series of decisions in which the plaintiff was named as a party. Those decisions were obtained by Mr Leitner by conducting a search of the AustLII database. He identified 26 decisions in which the plaintiff had instituted proceedings, was self-represented and was ultimately unsuccessful. 33The proceedings may be considered in series. The first series of proceedings commenced in 2000 in the Federal Court. The plaintiff instituted six applications against a number of parties including the Prime Minister, Ministers of the Commonwealth and of the State of New South Wales, a Commonwealth department officer, the New South Wales Ombudsman, the New South Wales Independent Commission Against Corruption and the New South Wales Auditor-General. The plaintiff alleged that the respondents had engaged in conduct proscribed by the Racial Discrimination Act 1975 (Cth) stemming from what she perceived to be inadequate responses to various complaints she had made to them regarding her period of employment at the University of New South Wales. The primary judge (Moore J) found that nothing in the material pointed to by the plaintiff would indicate that she was dealt with in anything other than a "regular" way: Paramasivam v Wheeler [2000] FCA 1559 at [7]. 34The plaintiff sought leave to appeal against that decision on the basis of statements allegedly made by the primary judge during the course of oral submissions. In refusing leave to appeal, the Full Court found that the plaintiff had misunderstood what the primary judge had told her and that her complaints were otherwise without foundation: Paramasivam v Wheeler [2001] FCA 231 at [12]-[15] per Carr J; Hill J agreeing at [17]; Tamberlin J agreeing at [22]. 35In each of the six matters, an application for special leave to appeal to the High Court was unsuccessful: Paramasivam v Aquilina [2002] HCA Trans 87; Paramasivam v Howard [2002] HCA Trans 88; Paramasivam v Karmel [2002] HCA Trans 89; Paramasivam v Kemp [2002] HCA Trans 90; Paramasivam v Sendt [2002] HCA Trans 91; Paramasivam v Wheeler [2002] HCA Trans 92. This first series of proceedings accounts for eight of the 26 cases identified by Mr Leitner. 36The plaintiff was also unsuccessful in bringing a claim of unlawful racial discrimination against the New South Wales Attorney General and the Director-General of the Attorney General's Department. She alleged that they had delayed in answering her correspondence, failed to provide specific answers to her questions about the legal system and refused to provide the legal services of the Attorney General or his Department to her in relation to her claims relating to her period of employment at the University of New South Wales. She stated: "the advice I received was for me to go to a private lawyer. I therefore failed to receive the service of the Attorney General - for which I have paid my taxes on an Equal Basis to any other member of the Public - be they in senior positions of Government or ordinary members of the Public": Paramasivam v Grant [2001] FCA 882 at [8]. She unsuccessfully appealed that decision to the Full Court: Paramasivam v Grant [2001] FCAFC 144. 37In 2002, the plaintiff lodged complaints with the Anti-Discrimination Board alleging that UNSW had discriminated against her on the basis of her sex and race in failing to employ her in various positions for which she had applied and in terminating her existing contract of services. The President declined her complaint and referred the matter to the Administrative Decisions Tribunal at her request. The plaintiff told the Tribunal that her complaint was based only on racial discrimination and was dealt with on that basis. The Tribunal found that her claims were lacking in substance and, in one instance, bordered "on being vexatious": Paramasivam v University of New South Wales [2002] NSWADT 202 at [34]. The plaintiff appealed to the Appeal Panel of the Administrative Decisions Tribunal and was unsuccessful on the basis that no error of law was established: Paramasivam v Vice Chancellor, University of New South Wales [2003] NSWADTAP 2. 38No cases are listed (or counted) by Mr Leitner in the period from 2003 to 2004. However, the litigious history from that time is summarised in the decision of Sully J in Paramasivam v University of New South Wales [2006] NSWSC 1189, a case arising later in this sequence. 39His Honour recorded that, during 2003-2004, the plaintiff was arrested and prosecuted on many occasions for breach of s 4(1) of the Inclosed Lands Protection Act 1901 in refusing to leave the grounds of the University. On one instance arising out of her arrest on 10 November 2003 the plaintiff was acquitted in the Local Court. 40In 2004, the plaintiff brought proceedings against an individual police officer and "the New South Wales Police" in the District Court seeking $750,000 including $166,666.67 for "solicitor's costs" and $580,796.33 "loss of goodwill" relating to her arrest on 10 November 2003 and subsequent acquittal. She reduced the claim to $750,000 so as to fall within the jurisdictional limit of the District Court. Sully J stated that it was "no easy thing to deduce" from the pleading what cause of action the plaintiff saw herself as pursuing. His Honour thought it would be fair to understand it as a claim for a remedy for wrongful arrest and "perhaps, for defamation": at [30]. The plaintiff eventually amended her statement of claim, significantly expanding the nature and detail of her grievances. At some point the State of New South Wales (the proper defendant to the claims) was substituted as defendant. 41Following a preliminary hearing, Gibson DCJ made orders evidently calculated to assist the plaintiff to plead the claim properly. The orders required the plaintiff to file a further amended statement of claim and were constructed in such a way that they nominated the heads of damages under which the plaintiff might claim relief and the detail to be particularised under each head. Following those orders, the plaintiff filed a further statement of claim from which it was possible to define "the nature of the cause of action which the plaintiff was intending to plead... [being] damages for defamation, for negligence, for malicious prosecution, for false imprisonment, for trespass to the person and for personal injury": at [40]. She sought, inter alia, declarations that she was an "owner" of the University and of the State of New South Wales, "reprimands" and "opportunities", and $6,800,000 representing $200,000 loss per annum for 34 years: at [43]. 42The statement of claim was struck out. However, leave was granted to file a further amended statement of claim limited to any claim for wrongful arrest, false imprisonment and malicious prosecution arising out of her arrest on 10 November 2003. The plaintiff filed a further amended statement of claim which included a claim for damages for personal injury in the sum of $1,381,500 and loss of future earnings of $2,400,000. Her total claim was $4,122,496, again reduced for the purpose of falling within the jurisdictional limit of the District Court. The claim was dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules on the basis that it was "frivolous and vexatious", and that "no reasonable cause was actually disclosed... and [the proceedings were] an abuse of process": summarised in Paramasivam v University of New South Wales [2006] NSWSC 1189 at [53]. 43The plaintiff then commenced relevantly similar proceedings in the Supreme Court in 2006 against the University, the State of New South Wales and the Commonwealth of Australia. The respondents sought variously to have the statement of claim struck out and the proceedings summarily dismissed or permanently stayed. The statement of claim included "FACTS 1 TO 488 Listed in Chronological Order ... the basis on which my claim is made." Sully J described the 488 "facts" as occupying 65 pages of close type arranged on each page into five columns headed from left to right, "No.", "Date", "From", "To", and "Subject matter". His Honour said: "58 It is, I must confess, difficult to know where to begin in evaluating that document. It is simply unacceptable in this day and age, and as I have previously observed, simply to impose a document of that character upon any Court without some attempt at refinement of the material into a form which sorts out, so to speak, the wheat from the chaff, and provides a practical tool which can be given practical use in assessing the main pleading." 44His Honour then referred to the overriding purpose of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings, before continuing: "67 It seems to me that any reasonable reader of the statement of claim and the two supporting "facts" documents would need to do no more than to consider them as I have been doing, in order to be comfortably satisfied that, at the very least, they should be struck out. I do not resile in that connection from anything that I earlier said about the ways in which a Court will do what it properly can to assist a litigant in person. It is, however, the case that with all the goodwill in the world there must come a time when, to put the matter simply and bluntly, enough is enough." 45Sully J concluded: "72 It seems to me that there are several bases upon which it would be proper in the present case to make an order for the summary dismissal of the proceedings. I raised during the course of submissions and, in particular, with learned counsel for the second defendant, the differentiation between the concepts of "frivolous" and "vexatious", which concepts are normally joined together in the rules under the rubric "frivolous or vexatious". It seems to be intended that there will be recognised some difference between the two, but there does not seem to be any satisfactory exposition by relevant authority of what that difference might be. 73 I do not propose to characterise these proceedings as "frivolous". I do that out of what I intend to be a proper respect for the views which the plaintiff undoubtedly holds as a matter of deeply embedded conviction. One can say a lot of things about the course of litigation pursued by this plaintiff; but I do not think one can fairly say that her approach to it has been frivolous in the normal grammatical sense of being insufficiently serious or insufficiently purposeful. 74 I have no doubt, however, that the proceedings are properly to be characterised as "vexatious". To bring a fresh set of proceedings in this Court, after all of their historical antecedents in the District Court, is almost by definition vexatious; and especially so when the framing of the proceedings that have been commenced in this Court has, in truth, nothing to distinguish it in any substantive way from the tortuous District Court proceedings antecedent to the proceedings in this Court. 75 Further, I am comfortably of the view that this is a case in which the proceedings can be characterised properly as an abuse of the process of the Court. I wish to make it clear that I do not imply by that statement any view that the proceedings have been brought for some sinister or improper collateral purpose. The material which I have before me, whatever else might be said about it, cannot, I think, support an inference of that character. 76 My point is, rather, that there must come a time when it really does become, in the most literal grammatical sense, an abuse of the process of the Court to continue to use that process to regurgitate, on a sixth successive occasion, a pleading not substantially different from antecedent pleadings which have been held, in the clearest terms, to fall foul of the relevant provisions of the Civil Procedure Act and its rules." 46In January 2005 a further trespass charge brought by UNSW against the plaintiff was heard in the Local Court. The plaintiff lodged a complaint with the Human Rights and Equal Opportunity Commission (HREOC) in February 2005 alleging racial discrimination on the part of the Magistrate at that hearing. The complaint was terminated on the basis that the functions of a judicial officer were covered by the statutory provisions of judicial immunity: Judicial Officers Act 1986 s 44B. It was also noted that the complaint made no causal link between the plaintiff's treatment by the Magistrate and the plaintiff's Sri Lankan ethnic origin. As a result of the termination of the complaint the plaintiff commenced proceedings in the Federal Court which were transferred to the Federal Magistrates Court. Summary dismissal was granted on the basis that, "taking the applicant's contentions about what occurred ... at their highest, the doctrine of judicial immunity operates to protect the Magistrate from the legal redress sought by the applicant on the ground of an alleged unlawful discrimination": Paramasivam v O'Shane [2005] FMCA 1686 at [28], [50]. 47The plaintiff made a further complaint to HREOC in relation to her time of employment at UNSW and her removal from the University grounds. When that complaint was terminated on relevantly similar grounds to her earlier complaints, she commenced proceedings in the Federal Court in 2006 claiming that UNSW had unlawfully discriminated against her on the basis of her race and ethnic origin. Her application stated that her claim was based on "employment-related bullying, harassment, persecution and alienation which resulted in arrests on four occasions": Paramasivam v University of New South Wales [2007] FCA 875 at [2]. She also sought a "Declaration of Right" that she was the owner of UNSW and asked the Court to "reprimand" UNSW for failing to "uphold the value and the discovery of Truth through Research and Education", the State of New South Wales for failing to "facilitate DUE PROCESS" and the federal government for ignoring her suffering and pain. She sought loss of past and future income in the amount of 3.2 million dollars. In entering summary judgment for UNSW, Tamberlin J found that the evidence "does not, even at its highest, provide any support for the view that [the plaintiff] has been treated unlawfully because of her race, colour or ethnicity. To the contrary, the evidence supports the conclusion that there was no causal relationship between the removal of the applicant from the University's premises and any contravention of her human rights or unlawful deprivation of equal opportunity." She unsuccessfully appealed that decision: Paramisivam v University of New South Wales [2007] FCAFC 176. 48The plaintiff also made a further complaint to HREOC in respect of actions of the New South Wales Police Force and its officers in removing her from UNSW on four occasions in 2003-2004. Her complaint was terminated as "lacking substance and misconceived". She again applied to the Federal Magistrates Court and, although she successfully resisted an application for summary dismissal, was subject to an order for security in the sum of $10,000 on the basis that she had "revealed on many occasions in her previous litigation a hostility to meeting orders for the payment of costs": Paramasivam v The State of New South Wales (No.2) [2007] FMCA 1033 at [28]. She appears to have provided the security, as her application was heard in the Federal Magistrates Court in 2007, but she was unsuccessful on the basis that she did not make out any of her complaints of unlawful discrimination: Paramasivam v State of New South Wales (No.3) [2008] FMCA 647. 49The proceedings summarised above may broadly be categorised the "UNSW proceedings". Three other categories of proceedings brought by the plaintiff can be identified from Mr Leitner's list. 50In 2001, the plaintiff commenced proceedings alleging that the managing director of the Australian Broadcasting Corporation and the Director of Corporate Affairs at the ABC had unlawfully discriminated against her "ethnic knowledge" based on what she perceived to be inadequate responses to her letters expressing views about a restructure of the ABC. HREOC terminated her complaint on the ground that it was lacking in substance. Her application to the Federal Court to review that decision was dismissed on the basis that "no reasonable cause of action of unlawful discrimination [was] shown": Paramasivam v Shier [2001] FCA 545 at [19]. The plaintiff unsuccessfully appealed to the Full Court against that decision: Paramasivam v Shier [2002] FCAFC 142. 51Also in 2001, the plaintiff commenced proceedings against her former supervisor following termination of her employment with Health Services Australia. Her case was that as "the objective circumstances [did] not establish a proper basis for terminating her services on the grounds of incompetence and ... in the absence of any other rational explanation, it should be inferred that the real reason for [her] dismissal was because of her racial characteristics": Paramasivam v Jurseszek [2001] FCA 704 at [8]. In dismissing her application, Gyles J noted (at [11]-[12]): "There was no serious issue of credit arising in the case... the applicant is not alleging any objective act which was denied by the respondent... the applicant was not inventing circumstances showing racial discrimination. The applicant was drawing attention to a number of facts and arguing that an inference should be drawn from them. ... Whilst I do not doubt that the applicant has a genuine sense of grievance as to what happened and may attribute it to racial discrimination, in my opinion there was no racial discrimination operating in the circumstances of this case." 52Similar observations were made in many of the other judgments from this time. 53The plaintiff unsuccessfully appealed against the decision of Gyles J on the basis that his Honour "acted in breach of Article 5 (a) and e (v) of the International Convention on the Elimination of All Forms of Racial Discrimination... [in that he was] prejudiced against me because I am from a lower position in society compared to Ms Juraszek" and acting in breach of "s 13 (b) of the Racial Discrimination Act 1975 by providing me with his services on less favourable terms than his services to Ms Juraszek. I paid for the services of [the trial judge] when I paid my taxes. When accepting his job His Honour entered into contract with me to provide his Services on Equal basis as any other citizen": Paramasivam v Juraszek [2002] FCAFC 141 at [4]. 54The plaintiff then commenced proceedings against the President of HREOC alleging that, in terminating her complaints against the managers of the ABC and her former supervisor at Health Services Australia, the President of the Commission had racially discriminated against her: "My expressions of corporate wisdom were not treated on the same basis as those [of] others in positions of power." 55In dismissing her application, Madgwick J found that there was "no shred of material to ground any inference that any failing by the respondent, or any aspect of the respondent's treatment of the applicant, was on account of the applicant's racial origins": Paramasivam v Tay [2001] FCA 758 at [25]. The plaintiff was unsuccessful in an appeal to the Full Court against that decision: Paramasivam v Tay [2002] FCAFC 143. 56A final, separate series of proceedings was commenced by the plaintiff in 2005. The plaintiff owned a unit with her husband in Coogee. She wrote to the Randwick City Council objecting to owners of other units in the building using them as serviced apartments. She was dissatisfied with the Council's response and complained that letters written in response to her from the Council were addressed only to her husband, which she believed constituted sexual discrimination. She lodged a complaint with HREOC which was terminated on the ground that it was "lacking in substance and misconceived": Paramasivam v Randwick City Council [2005] FCA 369 at [12]. 57The plaintiff sought to file applications in the Federal Court Registry (Paramasivam v Randwick City Council [2005] FCA 369, at [14]-[17]) seeking a declaration that the Council had "committed unlawful discrimination and [an order] directing [the Council] not to repeat or continue such unlawful discrimination", orders that the Council restore the applicant's "special rights" or pay damages in "$500,000 to compensate for the fall in value that resulted due to not including my wisdom in making the said decision", and a declaration that the Council had unlawfully discriminated against the plaintiff. She also sought to file an accompanying application that alleged that one of the other unit owners had "brainwashed" the others and that the Council treated her less favourably than other males such as the other unit holder, who had "successfully used the Council to carry out his wishes". She stated that the discrimination may have been due to her sex or race, and that even if it was not conscious discrimination, it was "negligent". 58A registrar of the Federal Court sought and received a direction from the duty judge that the application was on its face an abuse of process of the Court or otherwise frivolous or vexatious. However, the registrar had attached to his memorandum to the duty judge a brief history of the proceedings the plaintiff had previously instituted in the Court. The plaintiff was informed that the registrar had been directed by the duty judge to refuse to accept her application on the basis that there was "no evidence showing that [the applicant] was treated less favourably by reason of sex or race" (at [21]). 59The applicant then complained to HREOC that the Federal Court was discriminating against her on the basis of her race. Her complaint was terminated and she sought judicial review in the Federal Court and a direction that the registrar accept her complaints "as if [she] was not known to them": Paramasivam v Randwick City Council [2005] FCA 369 at [26]. The Council sought an order dismissing or permanently staying her application for judicial review on the basis that no reasonable cause of action was disclosed or that it was frivolous or vexatious. The plaintiff had a minor success and her application was not dismissed on the basis that the inclusion of her litigation history in the memorandum to the duty judge made it possible that the judge made his direction based on that information, and not the face of her application. It was therefore impossible to characterise her case as "hopeless and therefore bound to fail": at [49]. The decisions of the registrar and the duty judge preventing the plaintiff from filing her applications were set aside: Paramasivam v Randwick City Council (No 2) [2005] FCA 508. No further case history relating to those proceedings was put before me. 60There are thus four categories or series of proceedings commenced by the plaintiff: the UNSW proceedings, the ABC proceedings, the HSA proceedings and the Randwick Council proceedings. All of the cases share similar characteristics: the plaintiff genuinely believed that she was discriminated against on the basis of her race or ethnic origin, and in one instance her sex; she then pursued every avenue of review and appeal available to her, often by way of making personal complaints against the individual decision-maker or judge, and in each instance represented herself. In almost all instances, her belief that she had been unlawfully discriminated against was said by the tribunal or court to be unfounded, although genuinely held. On at least two occasions proceedings instigated by the plaintiff were held to be vexatious or an abuse of process: Paramasivam v Unversity of New South Wales [2006] NSWSC 1189 at [53], [74]-[75]. Plaintiff's other relevant conduct 61The first affidavit of Mr Leitner also annexed correspondence sent by the plaintiff to the third and fourth defendants, among many other recipients. In one email the plaintiff reproduced a medical report concerning her prepared by Dr Rosalie Wilcox. The subject of the group email was the international relations of and assistance to Sri Lanka. In it, the plaintiff states that Australia: "is not able to effectively use global systems... I discovered this through my own legal actions using our Racial Discrimination Act 1975 which includes the UN Convention on the Elimination of all forms of Racial Discrimination. Through the Due Processes that I followed, I discovered that majority of our judges were not conscious of this global standard at all and hence hastily applied the general rules that they already knew - irrespective of whether it was appropriate or not." 62The letter then annexes the medical report as an "account" that "confirms what happens in Australia, to believers driven by Truth at the National level" (p 205 of the annexures to Mr Leitner's first affidavit). 63The defendants properly conceded at the hearing that the report could not be relied upon to establish any opinion of or diagnosis purportedly made by Dr Wilcox. Rather, they relied upon the contents of the report and the plaintiff's commentary on the report (contained in the email) as revealing the plaintiff's perception of the earlier series of proceedings she had commenced. The report was reproduced in the plaintiff's email under the heading: "Appendix 2 The Hidden Message in the Psychologist's Report. Part of the condition on which Magistrate Pat O'Shane released me on bail was that I get examined by a psychological expert. Accordingly I saw Dr. Rosalie Wilcox on 08 June 2005." 64The report, as reproduced in the email, states: "[The plaintiff] indicated that it was her belief that the police, the university and the judiciary were all colluding against her. When asked why this was so she said that the police were waiting on the grounds in 2003 even before she arrived and this indicated that the police had not acted independently. She said that when she was in Court the judiciary did not let her question the police and this indicated that the judiciary was protecting the police [sic]. She believed that there was resentment from these three bodies because she knew the law better than they did. ... [The plaintiff] acknowledged that for several years she had been in communication with a range of people including Yoga Swami, Our Lady and Dai Baba the leader of an Indian Religious Group. She told me that Sai Baba was a saint and on the 5 November 1998 [sic] red powder materialized on her picture of him. She interpreted this as meaning that he was in communication with her and felt that it was a miracle, a sign of his love for society." 65Following the report, the plaintiff then wrote in her email: "The University did not apply for a restraining order. If they had and the matter had been heard by a judge who followed the law - it would have been publicly known that the University employees did not have lawful grounds to ask me to leave and that they were acting in breach of my fundamental rights to participate in process. It was interesting that the psychologist who produced the best report in terms of details even with some inaccuracies - did not ask the simple question as to whether or not I was guilty of trespass. Given that the psychologist has referred to me as a Sri Lankan national - it is possible that she did not think that I had that basic right of participation. If I am indeed Sri Lankan by law - I would have been guilty as per the Inclosed Lands Protection Act 1901. Once we think we know - we do not check wether we are right in making strong statements about the lawfulness of others. SO THE STOLEN GENERATION CONTINUES AND THEY SEEK TO MANIPULATE THE MINDS THROUGH MEDICATION IF YOU DO NOT OBEY AND COMPLY WITH THEIR PROGRAM." 66The second affidavit of Mr Leitner annexed a letter sent by the plaintiff to the third and fourth defendants which attached a link to an article written by the plaintiff published online in the Sri Lanka Guardian on 18 May 2011, in which she states: "It was just yesterday that my husband and I filed and served my Affidavit in relation to a matter regarding my complaint against members of my husband's family, in the Supreme Court of NSW, Australia. This is also about the dowry system which is included in the Law of Thesawalamai, which is officially included as the Customary Law of Tamils of Northern Sri Lanka." She later says: "My husband and I discussed the above case in which the Australian Defendants of Sri Lankan Tamil origin, have sought through White Australian Lawyers (including Barrister) to have our complaint dismissed and pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), for me to be prohibited from instituting proceedings in New South Wales without the leave of the Court, and I thought of those, including journalists, who complained against the Sri Lankan Government for their life in exile. To my mind, the above Defendants who claimed to be strong LTTE supporters and tried to score points over my husband and I in related matter - would be like the abusive Police if they got into the higher positions." 67Mr Leitner's third affidavit annexed another email written by the plaintiff which attached a link to another article written by her in the Sri Lankan Guardian, on 9 November 2011. In that article, the plaintiff reproduces a letter she says she sent to the then Attorney-General on 13 November 2006, which said: "'First they ignore you; then they laugh at you; then they fight you and then you win' - Mahatma Gandhi Yesterday, the Supreme Court of New South Wales helped me bring about a closure to my traumatic experiences first with the University of New South Wales, then with the State & Commonwealth Governments. The University of New South Wales ignored me; the Governments laughed at me; the Judge fought me and then I won. The Court records, read by any independent assessor would confirm I won with flying colours but the verdict says that I failed and was to be banned permanently from the Courts also - if the Judge had his way. As the Judge said - 'enough is enough'. He said it on the basis of costs for the courts. I am also saying enough is enough. I will not be told what to do by any White Australian Administrator. From now on I am a fully fledged Coloured Australian governing myself. 68As already noted, the purpose for which that material was relied upon was to demonstrate the plaintiff's lack of insight into her litigious history. Plaintiff's defence 69The plaintiff relied upon her affidavit sworn on 17 May 2012. The affidavit is 73 pages long. It is informative to cite a few passages, albeit at some length, which reflect the nature of the document and the plaintiff's understanding of and motivations for bringing legal proceedings (from p 3): "3.3 Hence I believe that the work I am doing through this matter before the Supreme Court of NSW, on the basis of my genuine belief, would strengthen the social justice power of the legal system as well as of wider society through individuals who identify with either side. I affirm that it is this realization that has given me inner peace which I believe adds to harmony in Australia and other environments I feel a part of. 3.4 I affirm my belief that I have the right to use the Court system as a facility towards giving the highest institutional status to my work before it goes into this social justice system driven by natural judgments. I believe that judgments without expectations of benefits and fears of costs, based on the Truth of individuals - known within, are Natural Judgments. I believe that this Affidavit Facility is to include such Truth into the Legal system, in the form through which the matter is presented in the Legal system. Completing the picture of social justice 3.5 I affirm my belief that as a natural leader in our community, I feel the need to give form to my experiences because I feel it is needed by the groups with whom I share common faith, including our Australian Tamil Community. I believe that this is of value to wider Australian Society who are not privy to the inner workings of our Community, based on cultural norms and heavily driven by social justice, many of which I believe would never be 'seen' by wider society. I affirm that as much as possible I have consolidated at family and community levels respectively and presented only the consolidated form to wider society. 3.6 I affirm that this has helped me accept the net outcomes of my Court experiences at the consolidated level and not disintegrate (except when I have undertaken a job that requires otherwise) and view at the physical level where wins and defeats have priority over value added to the substance. ... 3.13 I affirm that I felt/feel it was/is my duty to my Australian environment to give form to my work as much as possible through appropriate structured systems including the courts and hence this action through the Courts. I believe that this would help regulate and consolidate our thinking towards Commonness as Australians and help us see both sides of a matter through outcomes produced at the higher level. I affirm that this to me is genuine integration - which means that I do not lose my earned independence to be accepted as an Australian in an Australian institution that has the responsibility to uphold the consolidated value of my Australian experience in form. 3.14 I affirm that I intuitively know that I would be defeated in many such 'high forums' but that acceptance of this gives me a real platform on which my work is not interrupted and therefore my contribution to social justice is free to flow. I affirm that I prefer this real platform to the falsely higher ones. 3.15 I affirm that I genuinely do my best to get problems resolved and opportunities recognized within family, community and the workplace and bring only the unresolved problems and opportunities to the knowledge of wider public so that social justice would happen naturally and collectively. I affirm that towards this, I bring to courts only the issues that I believe are relevant to Judicial governance. 3.16 I affirm that this has resulted in me being defeated in Court repeatedly but that the experience helped me help others know more accurately the limits of the legal system, so they would not be distracted from their own internal powers to resolve. I affirm that I feel this need by my Community strongly due to the Sri Lanka war to which I believe I also contributed by distancing myself despite my higher education, from the rebels on my side - the Tamil side - starting with myself. I affirm my belief that those who have faith in me were thus facilitated to find their 'internal' resolutions, which I believe goes towards preventing new wars which I believe starts happening when we disintegrate through unpractised laws of Equal Opportunity whilst benefiting form the system of Democracy. ... 4.63 I believe that it is important (included to self-assess my deservedness) to use the Australian Legal system, on the basis of my contribution to family responsibility especially in the framework of migrant culture. Annexure 3 which is a letter I shared with family and community during my mother's last days on earth - confirms my entitlements from a common community based family and I believe that as per the values of Diversity, my matter before this court has earned the right to be related to through this consciousness. I believe that this letter confirms the common principles and values of our migrant community that the Defendants were required to uphold instead of what seems to me to be their own individual thoughts. I believe they failed in this duty in the case of our marriage and hence have adversely affected our marital status and therefore our family status within the community. 4.64 I affirm that it is my understanding that the first and second defendants draw Australian Pension as seniors and therefore I believe they have greater responsibility to Australian values at least to the extent they saw those values through us their sponsors of origin - than to their personal thinking when the values contradicted each other. I believe that they have the responsibility to complete the picture of their experiences relevant to the public to give form to Australian values rather than their own individual thinking without the backing of common principles. ... 4.85 I confirm that on the basis of our sponsorship of the 4th Defendant, I continued to believe that we had the responsibility to provide due care to his family and hence when the 4th Defendant and his wife Mrs. Shangeetha Sritharan stated that they needed the latter's parents' support when the 4th Defendant and his wife had their first baby, we agreed to help them. I confirm that I was informed by the 4th Defendant and his wife that Mrs. Shangeetha Sritharan's parents' application to visit Australia to support her was rejected by the Australian authorities. 4.86 I confirm that Annexure 9 is evidence of my involvement in their appeal which successfully resulted in the 4th Defendant's father-in-law arriving in Australia as a visitor. I confirm that I stated to the Migration Review Tribunal on the basis of my belief which in turn was on the basis of my acceptance of statements by the 4th Defendant, his wife and his parents in law, - that the 4th Defendant's father in law was only visiting Australia - and that he would return to Sri Lanka after the approved time period. 4.87 I affirm that on that basis the 4th Defendant's father in law was approved to come to Australia as a visitor and that in Colombo, I personally took his passport to authorities, argued with them and gave my statement in support, when they said that no such approval had been given which resulted in the visa approval being stamped for 12 months as a visitor. I affirm my belief that it was my strong faith through my contribution to the Australian system of governance that resulted in his approval, when relatively within the community others who had tried harder for longer periods were continuing to get rejected by the Australian High Commission in Sri Lanka. I affirm my belief that the High Commission was able to connect to my commitment through the prior work done in this area. I affirm that to me it was confirmation that the Australian Social Justice system was healthy. ... 9.15 I affirm my belief that when I taker legal actions as per my belief, the social justice system within the legal system also gets empowered by such belief, in addition to benefiting from my ability to structure it to suit Australian Administration and Judicial systems. ... 12. I affirm my belief that it was as a result of my ownership contribution through the Court system to social justice system, that I was invited by Her Honour Justice Margaret Beazley AO - Acting President, Court of Appeal NSW Supreme Court & Patron of Toongabbie Legal Centre (TLC) to participate in the Launch of TLC's Outreach Legal Service to the Blacktown and Surrounding Communities by Sir Gerard Brennan AC KBE, Former Chief Justice, High Court of Australia, 0n 25 April 2012 [sic]. I confirm that I participated in the function and appreciated very much the contribution to social justice within legal circles by all concerned. ... 15.15 I affirm that in terms of applications for summary dismissal by Respondents referred to in JL4 of Defendants' Affidavit, I took that to be a confession that they lacked the expertise to complete the 'other' side of my picture on the basis of Equal Opportunity principles and values. I concluded so because as per my mind, one has to be at Equal level to see the Equal other side. To me that is the law of nature. I concluded that none of the lawyers had had the experience to complete the picture on the basis of racial equality." 70The plaintiff appears to suggest that her litigation and the failure of others to heed her advice have had the capacity to affect the impact of events such as the bombings in the United States on 11 September 2001 and the bombing in Bali in October 2002 (p 51 [15.22], p 54-55), and that by bringing racial discrimination claims she "diffuse[s] such real threats" to "Australia lives and security" (at 66 [36.5]). She refers also to "outcomes along the way through common due process", which appears to refer to amicable interactions she has with court and registry staff in the course of her proceedings, as "far stronger than the verdict by the [High Court] Judges who I felt were not connected to the subject matter of the complaint at all. ... I believe my work to satisfy the requirements of the High Court Administration, confirm my high level of commitment to Administration and that I have given form to my contribution at the level of the High Court - by systematically following Due Process in the consciousness of belief. I affirm my belief that it is this belief that gives us sense of belonging in an environment - even if we do not express it through our work and that it strengthens the security of the environment when we are good persons caring about the welfare of all concerned - which I believe I am." (at p 61) 71In relation to complaints against UNSW in the Administrative Decisions Tribunal, she says: "I confirm that both Chancellors [of UNSW] of my time - Sir Anthony Mason and Dr. John Yu, recognized and responded to my complaints which confirmed to me that within their limits they believed that my complaints had substance. I concluded that the Tribunal lacked the Resources to hear such matters at that time. I confirm that at community level I was offered the opportunity to work in Sri Lanka on a UNDP (United Nations Development Programme) assignment to assist in the development of Public Administrative systems in Northern Sri Lanka and I took this opportunity to be part of my reward for the work and pain through the Tribunal experience. I confirm that during my service through UNDP, Chancellor of the University of NSW - Dr. John Yu did respond to my communications from Sri Lanka in relation to Public Health Policies. I affirm that this helped ease some of my pain from the Tribunal defeats. I affirm that I kept saying to myself that those who really worked with me valued me ... I took the difference as the Human Resource limitation gap of the Tribunal." (at p 62) 72In relation to the proceedings before Sully J (Paramasivam v University of New South Wales [2006] NSWSC 1189), the plaintiff states "I concluded for myself that the matter was closed due to limited resources of the Court which prevented them from inquiring more deeply into merit based assessment particular to other institutions such as the University of NSW" (at 65, [36/3]). 73In her written submissions of 15 June 2012, the plaintiff submits (at [13]): "(ii) The Defendants claim at Section 13 (a) of their submissions that the proceedings are vexatious because 'the Plaintiff's only concern in bringing the proceedings is her positive contribution to social justice system and the legal system' It is submitted that knowledge of Law is used as follows: 1. To get benefits including grades within the legal profession 2. In an institutional context - for example at the workplace, in family 3. For personal conduct - as a natural part of oneself. (iii) It is submitted that the way the law is interpreted would 'look' different in each of the environments as per their operational needs. Within those operational needs those driven by money and status would tend to demonstrate greater diversity and those in category 3 would confirm most commonness due to their contribution going towards ownership. It is submitted that action supported by category 3 would add value to the legal system and hence classifying them as being vexatious would cause great damage to harmony in the system." 74At [68] she submits: "The Defendants appear to be accusing me for using the Court as a facility. It is submitted - that when two sides are not equal - in one system - the person of higher status has 'authority' to Administer the other person - including in the Court as well as Family systems. Hence we as individuals bow to the Judge and pay our respects to Parents until we are independent users. Once the person of lower status who is being administered makes equal investment as the service provider - that person is entitled to use the Services of the Service Provider as a facility - as in 'My Bus'; 'My Train' facility. It is submitted that the Plaintiff therefore considers the Court system to be a facility and hence 'My Court' to the extent of her independent use..." 75The plaintiff further submits that she has been defeated in her racial discrimination claims because the Racial Discrimination Act 1975 is still developing. She refers to her defeats as "investments in 'futures' - today's standards of high users of the principles of Equal Opportunity leading to tomorrow's Policy - which it is submitted should not be confused with 'abuse of process'" (at [13]). However, she also submits that she has "'accepted' her official status as a 'defeated litigant' in Equal Opportunity matters", and that: "there is evidence of 'closure' of employment-related litigation, after matter Paramasivam v The State of New South Wales (No.2) [2007] FCMA 1033 went to trial. It is submitted that there is evidence that the Plaintiff has accordingly resigned herself to faith based Community Service in Australia as well as Sri Lanka" (at [13(xv)]. 76The plaintiff also submits that her previous litigation is unrelated to these proceedings, and that as no action was taken by the Attorney General in relation to her earlier litigation it should be concluded that he did not consider her to be a vexatious litigant (at p 24). 77In her affidavit sworn 27 June 2012 filed "in response to the defendants' Notice of Motion of 22 June 2012" seeking orders setting aside the subpoenas issued by the plaintiff, the plaintiff states: "4 ... I believe my daughter... who is a lawyer... has earned strong reputation and commendation from Senior Lawyers and Magistrates in being well organized in presenting her Court work, and I believe that I have contributed strongly to this, through my own contribution to Public Service and to Administration of Justice, including through Court Process. 5 I affirm my belief that without strong commitment to Legal Administration and Court Processes, I would not have successfully escalated my complaints to the higher Judicial levels. 6 I affirm my belief that the sharing of such Common Due Processes through which our minds come together, is a common value through which Court functions are supported. 7 I affirm my belief that it is this common value that confirms whether a complaint is legally successful. 8 I affirm my belief that it is this contribution to the Court's management that would determine whether a complaint has been successful or not and not the defeats - which come with every win. ... 19 ... I live close to my Truth and where I am aware of practice of common principles and laws including by myself, I ensure that my conduct is bound by them. This often results in those who have weak investment in Truth and/or common principles and laws, becoming my opposition. ... 27 ... I affirm my belief that if the Defendants had looked deeper into what happened in the cases they have cited against me, and taken an objective and independent stand about what I had done - they would have found me to be NOT guilty of abusing the Court Process - but rather to be contributing to the development of the judiciary's appreciation of the principles and values on which the laws of Racial Equality have been founded. ... 29 ... I affirm that in addition to this, I need to surface the thinking of the Defendants in whose names and Australian status - the application to have me listed as Vexatious Litigant has been made. I believe it is my duty to surface that I am a stronger contributor than the Defendants individually and jointly, in upholding law and order at all times including as an ordinary Australian citizen - so that the minds of those who believe in me would develop accordingly in relation to the legal system to assist in directing their investments towards or away from that system - as per my wins and defeats." 78In the course of oral submissions the plaintiff indicated that she had assisted the fourth defendant's family by representing them at the Migration Review Tribunal. She submitted, in effect, that it would be unfair for the fourth defendant now to rely upon her litigation history or to cast aspersions on her mental health in support of a vexatious proceedings order, having previously benefited from her experience. In her affidavit sworn 17 May 2012, the plaintiff states that she sponsored the first, second, third, fourth and fifth defendants, and as well as the fourth defendant's wife, Sangeetha Sritharan, to migrate to Australia (at p 19 [4.58]-[4.59]). She states that she assisted in an appeal to the Migration Review Tribunal when Ms Sritharan's father was denied a visitor's visa to enter Australia in 2008, and later in Colombo: "personally took his passport to authorities, argued with them and have my statement in support, when they said that no such approval had been given, and eventually established that the approval had been given which resulted in the visa approval being stamped for 12 months as a visitor. I affirm my belief that it was my strong faith through my contribution to the Australia system of governance that resulted in this approval, when relatively within the community others who had tried harder for longer periods were continuing to get rejected by the Australian High Commission in Sri Lanka. I affirm my belief that the High Commission was able to connect to my commitment through the prior work done in this area" (at p 26-27, [4.85], [4.87]). 79The plaintiff annexed letters from the Migration Review Tribunal to Ms Sritharan which were addressed to the plaintiff's postal address "as the authorised recipient of the review applicant(s)" and two letters written by the plaintiff on Ms Sritharan's behalf concerning the scheduling of the review hearing. She makes a similar assertion in her written submissions of 15 June 2012 (at p 26, [66]). There appears to be no other evidence concerning the plaintiff's involvement in migration applications. However, the defendants did not challenge this aspect of her evidence. 80The unfairness of the defendants now taking the present action against the plaintiff in the context of that history was an issue as to which the plaintiff evidently has very strong feelings, perhaps with good reason. 81The plaintiff also submitted in the course of oral submissions that, as she shares accounts of her litigation experience with others: "it's educational process [sic], and it's not just to the defendants, it's to so many other people including government, including university staff and there are some responses from time to time and I believe people do learn and I think that is part of the benefits I developed from having participated in the legal process." (T27.7) Consideration 82The explanation for the plaintiff's unhappy litigious history appears complex. I do not doubt that many of her legal claims have been instituted out of a sincere sense of civic duty. Her affidavits reveal that she believes her "work" inspires others, in particular to build equal and democratic societies and to prevent wars and conflicts in Sri Lanka, within the Tamil diaspora in Australia and within wider Australian society. However, her objectives in that regard have evidently been overlaid, from time to time, by a measure of distorted thinking tending towards paranoia. Her frequent resort to legal proceedings in that context has been misconceived. I am satisfied that, between 2000 and 2006 (at least) the plaintiff frequently instituted proceedings without reasonable ground. When regard is had to her motives and explanations for pursuing such claims, some may also be regarded as having amounted to an abuse of the process of the Court, notwithstanding the plaintiff's sincerity in pursuing what she regarded to be a proper social objective. It follows that the discretionary power under s 8(1) is enlivened. 83By far the more difficult question is whether the discretion should be exercised to grant the relief sought in the present case. In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, Perram J stated (at [12]) that, once the power to exercise the discretion is established: "the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely." (Cited by Adamson J in Pascoe v Liprini [2011] NSWSC 1484 at [19], set out above.) 84It is clear that the plaintiff genuinely believes in her various causes and claims, including the current proceedings, which she brings in pursuit of what she refers to as "Truth". She continues to hold these beliefs despite consistent disappointment in the courts. That said, I am not convinced, as submitted on behalf of the defendants, that the plaintiff does not understand that she has been unsuccessful in her previous litigation. Her references to "wins" in the correspondence and affidavits appear to be references to the personal success she feels she has enjoyed in making a point, notwithstanding the judgments and orders of the Court, as opposed to actual success in legal proceedings. I do not think the plaintiff has any misapprehension that she has won cases where she in fact lost. 85I accept that the plaintiff does lack insight into the proper use of the processes of the court. She appears to be, or to have been in the past, of the view that it is proper to invoke the processes of the court as a form of crusade for truth and harmony regardless of the prospects of obtaining a remedy for any particular perceived wrong. Some of her ideas on that issue are bizarrely expressed. She describes herself as having sought to prove the strength of her "faith through [her] contribution to the Australian system of governance", and that the "common value" of "Common Due Process through which our minds come together ... confirms whether a complaint is legally successful." She also appears to believe that many of her defeats were a result of lack of court or tribunal resources to fully investigate her matter, or a failure to "connect" with the judge. She stated "I affirm that to me winning is secondary to contributing positively to the Justice system" (affidavit sworn 17 May 2012 at 67, [41-42]). 86The plaintiff's persistence in the past in prosecuting hopeless and misconceived claims combined with her peculiar attitude to the purpose of legal proceedings are factors pointing in favour of granting the relief sought by the defendants. 87Conversely, however, there are factors pointing against that course. The present proceedings stand as a single action which is quite different from any in the plaintiff's past litigious history. Importantly, it must be noted that a period of at least five years has lapsed between proceedings. The plaintiff explained at the hearing before me that she did not appeal the last decision against her because she was "tired by that time" and felt that she had established that her "substance was true". She had spent time in custody and has not held any "official position" since then (T26). 88In my view, the present claim stands in a different category. It emanates from a family dispute. Whilst I have been persuaded that the action has no reasonable prospects of success for the reasons already given, one can readily understand why the plaintiff felt that her reputation had been damaged by the remarks attributed to the lawyer retained by some of the defendants in that litigation (if they were made, which has not been disputed). 89The making of a vexatious proceedings order is "an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen's ordinary right. It is, therefore, not lightly to be made": Gargan v Kippin Investments Pty Ltd at [2]. I am particularly hesitant to make order 6 or 8 sought by the defendants in circumstances where these are the first and only proceedings commenced by the plaintiff against the defendants (T15.47). It is also relevant that, although the plaintiff's submissions and evidence share characteristics of the language of many of her previous cases described above, the present proceedings are not cast in terms of racial discrimination and are not brought against public authoritites but against members of the plaintiff's extended family. They are also brought more than five years after she last commenced proceedings. 90Counsel for the defendants relied upon the decision of Fullerton J in Fokas v Stack [2010] NSWSC 571 at [10]-[14] as an instance of a decision in which a vexatious proceedings order was made in circumstances where there had been only one proceeding against the applicant, but a history of vexatious litigation against others: see T16.5-.35. However, the judgment records (at [12]): "More significantly for the purposes of the present application were three sets of proceedings commenced against various of the defendants in the District Court..." 91It may nonetheless be accepted that proceedings that had previously been brought against third parties were taken into account in the making of a vexatious proceedings order. 92I have ultimately not been persuaded that the extreme remedy of a vexatious proceedings order should be granted in the present case at this stage. The extended period during which the plaintiff has not instituted vexatious proceedings and the very different nature of the present proceedings from those previously instituted (being an acrimonious family dispute) lead me to feel confident that these proceedings are not the beginning of a further torrent of vexatious litigation but rather a single instance of expression of a grievance as to how the plaintiff perceives she has been treated by her family. I have accordingly concluded that this is not an occasion for the exercise of the court's discretion under s 8. 93Having regard to the age of the earlier matters and the fact that the Attorney General has not previously seen fit to take action against the plaintiff under the Act, I do not think it is appropriate to refer the matters to the Attorney General as sought in prayer 9 in the motion. 94However, the plaintiff should be aware that if, contrary to the confidence I have expressed, she were frequently to institute further proceedings against the present defendants, in light of the findings I have made, it would be a small step to persuade the court that the relief sought in the present application should be granted. 95The orders are: (1)That the proceedings be dismissed; (2)That the defendants' application for relief under the Vexatious Proceedings Act 2008 be 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: 20 August 2013