Supreme Court New South Wales Medium Neutral Citation: Application of Miguela Macatangay [2017] NSWSC 1047 Hearing dates: On the papers Date of orders: 18 August 2017 Decision date: 18 August 2017 Jurisdiction: Common Law Before: Lonergan J Decision: Summons dismissed. Catchwords: PRACTICE AND PROCEDURE – vexatious litigant – application for leave to institute proceedings where vexatious proceedings order made in respect of applicant Legislation Cited: Vexatious Proceedings Act 2008 (NSW) ss 6, 8, 14, 15 Cases Cited: Macatangay v State of New South Wales [2012] NSWCA 108 Macatangay v State of New South Wales [2012] NSWCA 374 Category: Procedural and other rulings Parties: Miguela Alvarez Macatangay File Number(s): 2017/101486 Publication restriction: Nil Judgment 1. The applicant in these proceedings is the subject of an order made by Macfarlan JA, Sackville and Tobias AJA on 15 November 2012 pursuant to the Vexatious Proceedings Act 2008 (NSW) s 8(7). Extracted from Macatangay v State of New South Wales [2012] NSWCA 374, those orders were: 1. all proceedings in New South Wales already instituted by the applicant in matters Nos 20144 of 2005 and 269316 of 2005 be stayed; and 2. the applicant be prohibited from instituting any further proceedings in New South Wales relating to any of the claims or complaints made by her in the Matters. 1. The applicant filed an application on 4 April 2017 pursuant to s 14(2) of the Vexatious Proceedings Act 2008 (NSW) for leave to institute proceedings that would otherwise be prohibited by the above order. 2. In her application, the applicant states that she 'is applying to this Court that she be allowed to maintain proceedings Matter No 2005/269316 and 2007/265877'. Her summons filed on 4 April 2017 seeks relief in the following terms: 1 Set aside all the judgements made that has relied on the information that there is settlement and deed of release as they are decisions that are manifestly wrong. 2 Pay the applicant the damages caused by the Respondent's wrongful act of depriving her of the basic right to earn a living as a High School Mathematics teacher or in any capacity by putting on the Confidential Register of people prohibited to be employed in any capacity. 3 All other relief the Honourable Court deemed appropriate. 4 Cost. 1. In a document titled 'Application for leave to maintain proceedings matter 2005/269316 and 2007/265877', the applicant raises five grounds upon which she asserts leave should be granted: 1) She was working very well as a permanent Mobile High School Mathematics Teacher at Bossley Park High School, but when she was transferred at Merrylands High School to relieve a Mathematics teacher, she was unreasonably put on an Efficiency Program straight on the first day 31 January 2000 and continued for three consecutive years culminating on annulling her appointment and putting on the Confidential Register of people prohibited to be employed in any capacity resulting in preclusion from employment and causing very serious and great damage to her. 2) When she filed a proceeding at the NSW Supreme Court in relation to this unlawful prohibition, the NSW Department of Education filed a proceeding in the form of Notice of Motion seeking dismissal of her proceeding on the ground of the false information that there is a settlement and 8 April 2003 deed of release of the IRC Threatened Dismissal Application filed on 4 September 2003. 3) All the submissions and evidence put by Miguela Macatangay at the NSW Supreme Court and Court of Appeal was ignored and never given any consideration and the prohibition claim was never tried, never litigated as the court considered only what the NSW Department of Education has told the Court that there is settlement and deed of release. 4) In all the proceedings instituted by Miguela Macatangay that are unsuccessful, the order is made in reliance on the information that there is settlement and deed of release. 5) In the decision of the Federal Court of Australia,+++ Justice Katzmann who read the submissions and evidence provided to the Court by Miguela Macatangay, Her Honour found out that there was no deed of release and hence no settlement of the IRC Threatened Dismissal Application. 1. It is clear that the relief claimed and the grounds raised in support of the application for leave amount to an attempt to further agitate issues that have already been determined. 2. In relation to the first order sought in the applicant's summons, and all five grounds upon which the applicant relies in her application, it is helpful to refer to the analysis of Tobias AJA in Macatangay v State of New South Wales [2012] NSWCA 108 at [9]–[12]: [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. [10] The statutory basis for the applicant's current application to re-open the 2005 proceedings is to be found in UCPR r 36.15(1) which empowers the court on sufficient cause being shown to set aside an order of the court if that order was made irregularly, illegally or against good faith. The order, as I have said, which the applicant seeks to have set aside is that of Grove J made on 9 February 2007 on the basis that his Honour failed to consider all the facts relating to whether or not there had been a settlement of the IRC proceedings. He did not consider those alleged facts because he held, correctly as various courts have repeatedly pointed out to the applicant, that that issue was determined by Commissioner McDonald and gave rise to an estoppel. The applicant also asserts that the respondent has on numerous occasions misled and told lies to the various courts that have dealt with this matter but in my view there is not a jot or tittle of evidence to support such an allegation, particularly bearing in mind its serious nature. [11] In my view, there is nothing to indicate that there has been any irregularity let alone any illegality or lack of good faith in the manner in which the matter was conducted before, and determined by, Grove J. In those circumstances, in my view the applicant's further attempt to reopen his Honour's decision must fail. I would therefore propose that the notices of motion filed by the applicant on 27 September 2011 and 13 February 2012 be dismissed with costs. [12] There is one other matter that needs to be considered and that is an order sought by the respondent in its notice of motion filed on 11 November 2011 that the applicant be restrained from making any further applications in matter 20144 of 2005, without the leave of the Court. In all the circumstances, given the history of this matter, in my view such an order should be made. 1. See also the comments of Sackville AJA at [15]–[17]: [15] In my view, it is enough to refer to the judgment delivered by this Court on 20 September 2010: (Macatangay v State of New South Wales, NSWSC, Handley & Sackville AJJA, unreported, 20 September 2010). The Court on that occasion dismissed a summons filed by the present applicant on 16 June 2010 in which she sought leave to appeal from the decision of Hulme J of 20 May 2010 (Macatangay v State of New South Wales, NSWSC, Hulme J, unreported, 20 May 2010). Handley AJA, in a judgment delivered on that day, with which I agreed, stated: "The applicant has long since exhausted all reasonable avenues for challenging the decisions of the Industrial Relations Commission and of Grove J. The proceedings in the Commission and in this Court have finally established that the applicant's dismissal by the Department of Education and Training on 6 December 2002 did not give her a cause of action for damages against the State." [16] Handley AJA concluded that this was a clear case of abuse of process, and dismissed the application for leave to appeal. The applicant was ordered to pay the costs of the State on an indemnity basis. The High Court refused special leave to appeal from these orders. [17] If the applicant's earlier application for leave was a clear case of abuse, the present application is an even clearer case of abuse and should not be entertained by this Court… 1. In relation to the second order sought in the applicant's summons, I refer to the joint judgment of Macfarlan JA, Sackville & Tobias AJJA in Macatangay v State of New South Wales [2012] NSWCA 341. There, the applicant sought leave to file a further application in the proceedings in relation to her claim against the department in prohibiting her working for it "in any capacity". At [3]–[5], the Court stated: [3] … Her complaint once again is that she has been prohibited from working as a high school mathematics teacher or in any teaching capacity by the Department and that she has been placed on the Department's "confidential register". She now asserts for the first time that by being placed on that register the Department has, in effect, declared her as a "registrable person" within the meaning of the Child Protection (Offenders Registration) Act 2000 (the Child Protection Act) as someone who is prohibited from being employed in any child related work. This, apparently is the additional aspect of her case not previously alleged. [4] It is true that the applicant was placed by the Department on its confidential list or register. However, this was part of the settlement of her proceedings in the Industrial Relations Commission of NSW which has been the subject of the previous litigation between the parties. It was done for her own protection. Until now, there has never been any suggestion by the applicant that she has been declared a "registrable person" pursuant to the Child Protection Act. Being placed by the Department on its confidential list or register does not, and never has, made her a "registrable person" within the meaning of that Act. [5] It follows that the applicant has not advanced any arguable point to support her complaint. Her notice of motion filed on 8 October 2012 seeking leave to file a further application is dismissed. 1. The Court went on to foreshadow the orders later made under the Vexatious Proceedings Act 2008 (NSW). At [8]: In the foregoing circumstances the Court is minded to make a vexatious proceedings order against the applicant staying all proceedings in New South Wales already instituted by her in matters Nos 20144 of 2005 and 269316 of 2005 and, further, prohibiting her from instituting any further proceedings in New South Wales relating to or having any connection with any of the claims or complaints made by her in those matters. 1. It is clear that the current application is an attempt to again agitate issues that have already been determined by the Court of Appeal. They are largely the issues that were the basis for the making of the orders pursuant to the Vexatious Proceedings Act 2008 (NSW) by the Court of Appeal in November 2012. 2. Section 15 of the Vexatious Proceedings Act 2008 (NSW) provides: (1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers: (a) the affidavit required by section 14(3) does not substantially comply with that subsection, or (b) the proceedings are vexatious proceedings, or (c) there is no prima facie ground for the proceedings. (2) The application may be dismissed even if the applicant does not appear at the hearing of the application. 1. This application does not purport to institute new proceedings as envisaged by s 14 of the Vexatious Proceedings Act 2008 (NSW). This application is to "maintain proceedings" that have already been determined by the Court of Appeal. 2. For the purposes of s 15 of the Vexatious Proceedings Act 2008 (NSW), I consider that the proceedings are vexatious proceedings within the meaning of the Vexatious Proceedings Act 2008 (NSW) s 6(a), in that the proceedings are an abuse of process. I do not need to make findings in relation to ss 15(1)(a) or (c). 3. In finding that the proceedings are an abuse of process, I refer to the comments of Sackville AJA above. The substantive relief claimed in the applicant's summons is based upon an alleged cause of action that has already been ruled unavailable to her, as confirmed by Handley AJA in Macatangay v State of New South Wales (NSWSC, Handley & Sackville AJJA, unreported, 20 September 2010). 4. Attempting to "maintain" or resume proceedings that were stayed by the Court of Appeal on the basis that those proceedings were an abuse of process is a further abuse of process. 5. I am therefore obliged to dismiss this application pursuant to the Vexatious Proceedings Act 2008 (NSW) s 15. 6. I dismiss the summons filed 4 April 2017 in matter 2017/101486. ********** 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: 24 August 2017