Supreme Court New South Wales Medium Neutral Citation: Macatangay v NSW Department of Education and Training [2015] NSWSC 1745 Hearing dates: 19 November 2015 Date of orders: 23 November 2015 Decision date: 23 November 2015 Jurisdiction: Common Law Before: Campbell J Decision: Under s 15 Vexatious Proceedings Act 2008 (NSW), the application for leave to institute proceedings is dismissed. Catchwords: CIVIL – vexatious proceedings – application by vexatious litigant to seek leave to commence proceedings – non-compliance with requirements of s 14(3) Vexatious Proceedings Act 2008 – where facts essentially mirror previous proceedings – application dismissed under s 15 Vexatious Proceedings Act Legislation Cited: Vexatious Proceedings Act 2008 (NSW) Cases Cited: Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 218; Bar-Mordecai v State of New South Wales; Bar-Mordecai v Attorney General (NSW) [2012] NSWCA 207; 83 NSWLR 125; Macatangay v State of New South Wales [2012] NSWCA 374; Macatangay v New South Wales [2012] NSWCA 108; Macatangay v New South Wales (No 2) ; Williams v Spautz [1992] HCA 34; 174 CLR 509 Category: Procedural and other rulings Parties: Miguela Macatangay (Plaintiff) New South Wales Department of Education and Training (Defendant) Representation: Counsel: Plaintiff in person Solicitors: File Number(s): 2015/300613 judgment 1. By summons filed in the Registry on 14th October 2015, the plaintiff seeks leave to commence proceedings by statement of claim against the New South Wales Department of Education. 2. Although not mentioned either on the face of the summons or in the affidavit filed in support on the same day, the application for leave is brought under the Vexatious Proceedings Act 2008 (NSW) (the Act). In Macatangay v State of New South Wales [2012] NSWCA 374 the Court of Appeal (Macfarlan JA, Sackville and Tobias AJJA), on 15th November 2012 made the following order: Pursuant to s 8(7) of the Vexatious Proceedings Act 2008: (a) all proceedings in New South Wales already instituted by [Mrs Macatangay] in matters Nos 20144 of 2005 and 269316 of 2005 ("the Matters") be stayed; and (b) [Mrs Macatangay] be prohibited from instituting any further proceedings in New South Wales relating to any of the claims or complaints made by her in the Matters. 1. The subject matter of "the Matters", and of the many other matters Mrs Macatangay has commenced in this Court, the Court of Appeal, the Federal Court of Australia and the High Court of Australia, are the agitation, and re-agitation, of Mrs Macatangay's sense of grievance over what she regards as her unfair dismissal from the New South Wales Teaching Service by the defendant. The long history of this matter was summarised by Tobias AJA in Macatangay v New South Wales [2012] NSWCA 108 (16th April 2012) at [4] – [9] in the following terms: [4] The matter has a long history which is chronicled in Annex A to the affidavit of Robert Geoffrey Horton sworn 10 November 2011 read in support of the respondent's notice of motion filed on 11 November 2011. It would be fair to say, leaving to one side the proceedings in the Industrial Relations Commission (the IRC) which commenced this whole saga, that the matter has been before the Supreme Court, either a single judge or the Court of Appeal, on some eight occasions, and before the High Court of Australia on three special leave applications. The applicant was the unsuccessful party on all occasions. It is unnecessary to set out in any detail from Mr Horton's chronology the history of this matter which is adequately summarised in the judgment of Handley AJA, with whom Sackville AJA agreed, of 20 September 2010 when the court rejected an application as an abuse of process to, in effect, reopen the 2005 proceedings dismissed by Grove J on 9 February 2007. However, in deference to the applicant, some of that history needs to be recounted. [5] The circumstances that gave rise to the 2005 proceedings relate to the engagement and later dismissal of the applicant by the Department of Education back in about 2002. A dispute arose between her and the Department which resulted in the applicant commencing proceedings in IRC (the IRC proceedings) in which she sought to be reinstated as a teacher in the Department. An attempt was made to settle those proceedings. An issue arose as to whether or not there had in fact been a settlement of the IRC proceedings. The Department asserted that they had and the applicant asserted that they had not. The matter was resolved in the IRC by Commissioner McDonald on 25 June 2004 when he held that there was a binding agreement entered into on 20 March 2003 for the settlement of the proceedings. The applicant then sought leave to appeal from the Commissioner's decision to the Full Bench of the IRC. Leave was refused. [6] On 24 March 2005, the applicant commenced the 2005 proceedings in the Supreme Court against the present respondent for damages for negligence. Her original statement of claim was struck out by McClellan CJ at CL who gave her leave to re-plead, which she did. An application was then brought before Grove J to strike out the amended statement of claim on the basis that it was an abuse of process. His Honour acceded to that application on 9 February 2007: Macatangay v New South Wales [2007] NSWSC 57. [7] The basis of his Honour's decision as I understand it, was that the proceedings had in fact been settled in the IRC as Commissioner McDonald had found with the consequence that the 2005 proceedings which the applicant had instituted constituted an abuse of process. Since then there have been a number of appeals that sought to call into question the correctness of Grove J's decision both before single judges of this court as well as the Court of Appeal. All of those applications have failed. Furthermore, as I have observed, three applications for special leave to the High Court have also failed. I need only refer to one of those applications. [8] On 4 September 2009 this court struck out as incompetent an appeal by the applicant from the 2007 decision of Grove J and refused her leave to appeal from that decision: Macatangay v New South Wales (No 2) [2009] NSWCA 272. On 30 March 2010 the High Court (Heydon and Bell JJ) dismissed the applicant's application for special leave to appeal from that decision: Macatangay v New South Wales [2010] HCASL 42. In so doing their Honours noted that the application for special leave to appeal turned on the factual issue as to whether her original proceedings in the IRC had been settled. Their Honours considered that such an appeal would enjoy insufficient prospects of success to justify a grant of special leave. [9] Notwithstanding the history to which I have referred, the applicant in her first notice of motion seeks to re-agitate matters that she has unsuccessfully agitated and re-agitated on numerous occasions without success. In particular, she asserts repetitively that there was no settlement of the proceedings in the IRC and that the numerous hearings of her various claims in the Supreme Court have failed to consider the "true facts" as to whether or not there had been any such settlement. However, those facts were considered by Commissioner McDonald and he found that a binding settlement had been entered into. 1. Moreover, the nature of Mrs Macatangay's insurmountable difficulty in further agitating her grievance was explained by the Court of Appeal in Macatangay v New South Wales (No 2) [2009] NSWCA 272 (4th September 2009 (Allsop P, Tobias JA and Handley AJA)) in the following terms (at [19] – [20] and [22] – [25]): [19] On 4 September, 2002 the plaintiff commenced unfair dismissal proceedings in the Commission under s 84(1) of the Industrial Relations Act 1996 (NSW). They were listed for hearing before Commissioner Macdonald on 24 March 2003, but on 21 March he was told the case had been settled. The plaintiff repudiated the settlement and on 12 June 2003 the Department applied by motion to enforce it by having the proceedings dismissed. Commissioner Macdonald made that order on 25 June 2004 on the basis that the case had been settled. On 28 February 2005 a Full Bench of the Commission dismissed the plaintiff's appeal from the Commissioner's orders. [20] The terms of settlement included an agreement by the plaintiff to resign from her employment, and her undertaking not to seek employment with the Department as a schoolteacher which left her free to seek employment with TAFE. The settlement was to be recorded in a Deed of Release which was never signed. Commissioner Macdonald and the Full Bench considered Masters v Cameron [1954] HCA 72 ; 91 CLR 353 and held that the settlement was binding although the parties agreed that it would be formalised in a Deed. [22] Paragraph 14 of the FASC based the plaintiff's case on the loss of her career as a teacher with the Department, but she had agreed in the settlement to give up that career in return for not being placed on the Confidential List. [23] Whatever the limits of the Commission's jurisdiction in unfair dismissal cases may be, it had jurisdiction to decide whether such proceedings have been settled. Decisions of the Commission within jurisdiction are final and can give rise to res judicata estoppels. This principle is well established. In Administration of Papua and New Guinea v Daera Guba [1973] HCA 59 ; 130 CLR 353 at 453 Gibbs J said: "The use of the phrase 'judicial tribunal' in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative … The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute …" [24] The distinction between a tribunal which has power to decide questions and create res judicata estoppels, and a purely administrative body whose decisions do not create such estoppels was explained by Lush J in Pastras v Commonwealth (1966) 9 FLR 152 at 155: "The underlying principle of this form of estoppel is that parties who have had a dispute heard by a competent tribunal should not be allowed to litigate the same issues in other tribunals. When the decision-making body is an administrative body not affording the opportunity at presenting evidence and argument … there is no room for the operation of this principle … It appears to me that both upon the general language of the authorities … and upon … principle … no estoppel can arise from a decision of an administrative authority which cannot be classed either as 'judicial' or as 'a tribunal', and that an authority cannot be given either of those classifications if it is one which is under no obligation to receive evidence or hear argument." [25] The Industrial Relations Commission decided that this settlement was binding after hearing evidence and legal argument. Its decision, affirmed on appeal, that the settlement was binding created an estoppel binding on the parties and properly recognised by Grove J and this court. 1. It is apparent that, over the years, Mrs Macatangay has expressed her asserted legal cause of action in various ways. In her current proposed statement of claim (described as Annexure 2), Mrs Macatangay frames her proposed action against the defendant in the tort of abuse of process (see Williams v Spautz [1992] HCA 34; 174 CLR 509). So much is tolerably clear having regard to the references in the proposed statement of claim to the Industrial Relations Commission's proceedings and references to the defendant's "ulterior purpose" in those proceedings (see [3]); the allegation that the defendant "improperly used the process of [this] Court … for their ulterior purpose" (see [5]); and the allegation "that there is no settlement" of the Industrial Relations Commission proceedings. 2. The only matter that seems to be in any way "new" is the allegation that after the Industrial Relation Commission's decision "the defendant put back the plaintiff's name on the list of people prohibited to be employed in any incapacity" [sic] (see [4]). I interpolate that that matter seems to be based upon a letter dated 27th August 2014 from the Department annexed to her affidavit (page 15) rejecting an application for re-employment as a teacher. The letter states: In reviewing your application for employment I note that there were concerns regarding your efficiency as a teacher leading to the annulment of your appointment and your name was placed on the Department's list of people not to be employed (NTBE) in any capacity within the New South Wales Department of Education and Communities, including schools and TAFE NSW. The reference to the "Department's list", it should be noted, is in the past tense. 1. The proposed statement of claim goes on to collaterally challenge the original decision of Grove J and various decisions in the Court of Appeal on the basis that the "ulterior purpose" of the defendant's Court of Appeal proceedings is to stop the plaintiff from pursuing her case (see [18]). 2. Sections 13, 14, 15 and 16 of the Act broadly involve "a three-stage structure": Bar-Mordecai v State of New South Wales; Bar-Mordecai v Attorney General (NSW) [2012] NSWCA 207; 83 NSWLR 125 at 131 [16]. First, the applicant is required to file an application with an affidavit complying with s 14; secondly, the Court considers whether to dismiss the application under s 15 or make an order for service under s 16(1); and thirdly, the Court conducts a hearing under s 16(1)(b) and determines whether to dismiss the application (s 15) or grant leave to institute the proceedings under s 16(3). 3. I am prepared to assume that even where the Court is initially minded not to order service because s 15 is engaged, it is required to "offer the applicant a hearing before dismissing the application" Bar Mordecai at 131 [17]. This was Basten JA's preferred view, although Beazley JA and Sackville AJA reserved their position on that matter. Johnson J had earlier expressed the same view as Basten JA in Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 218 at [7]. Accordingly, I directed the Registrar to fix the matter for an ex parte hearing on 19th November 2015, on which occasion Mrs Macatangay appeared to make submissions, orally and in writing, as to why the application should not be dismissed. 4. I summarise the five principal grounds which Mrs Macatangay put forward in support of her application: 1. Her appointment did not fall under s 48 of the Teaching Service Act 1980 (NSW) and therefore the defendant abused and misused this section in annulling her appointment; 2. The defendant has misled and deceived the Court by providing information concerning settlement of the Industrial Relations Commission's proceedings when they know such information to be untrue; 3. The actions of the defendant in providing the Court with information in relation to her employment prohibition is an abuse of process as it is for an ulterior purpose of restraining her from pursuing her claim; 4. The defendant has abused, misused and ignored the relevant legislation and common law; and 5. The defendant has abused the process of the Court by using the proceedings in which it has been engaged to run away from its liabilities and come away with clean hands. These contentions are somewhat repetitive and overlapping. In substance, these contentions have been advanced and rejected in previous proceedings. That they are draped in language apt for allegations of abuse of process makes no substantial difference to them. 1. I am of the opinion that Mrs Macatangay's application must be dismissed in accordance with the provisions of s 15 of the Act. First, the affidavit of 6th October 2015 does not comply with the requirements of s 14(3) in that it does not disclose any fact adverse to the application and only recites facts upon which she relies to justify her claim. For instance, she fails to refer to the order made by the Court of Appeal under s 8(7) of the Act and fails to mention that each of the proceedings which she lists in her affidavit ultimately were determined adversely to her, even if she sometimes enjoyed a measure of success at interlocutory stages. 2. Secondly, even if the finding made in the immediately preceding paragraph is wrong, I am of the view that these proceedings are vexatious in that they seek to agitate again the very point that was decided against her in the Industrial Relations Commission at first instance, and on appeal, which formed the basis of Grove J's decision upheld by the Court of Appeal on 4th September 2009. Her collateral challenge to facts conclusively decided against her, as the Court of Appeal decided in its decision of 15th November 2012 (at [9]), is clearly vexatious. As their Honours presciently observed "Mrs Macatangay will continue, unless a vexatious proceedings order is made, to purse 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". This application, notwithstanding an order under the Act, makes good that prediction. 3. Thirdly, there is no prima facie ground for an action for the tort of abuse of process evident in the allegations made in the proposed statement of claim, or in Mrs Macatangay's affidavit. According to Williams v Spautz the essence of the tort is the bringing, or defending, of legal proceedings as a means of obtaining an advantage for which those proceedings are not designed, or a collateral advantage beyond the legal remedies available. Despite allegations of ulterior purpose, and even dishonesty, there is no averment of the proposed defendant using its defence of the previous proceedings in that way; no collateral advantage or benefit to which the defendant may not have been entitled is identified. The purpose of attempting to prevent Mrs Macatangay's success in her proceedings is not "ulterior" or "collateral". 4. I propose to dismiss the proceedings under s 15 of the Act. 5. My order is that under s 15 Vexatious Proceedings Act 2008 (NSW), the application for leave to institute proceedings 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: 23 November 2015