Judgment
1HIS HONOUR: By summons filed on 3 June 2011 the Attorney General of NSW seeks orders pursuant to s 8 of the Vexatious Proceedings Act 2008 ("the Act") in relation to the defendant, Pamela Joan Theresa Budd.
2The orders sought pursuant to s 8(7) of the Act are:
(1)That the defendant be prohibited from instituting proceedings in New South Wales without leave of the Court; and
(2)That all proceedings already instituted by the defendant be stayed.
3The
application has been instigated by the defendant's involvement in 25
different proceedings between 28 October 2004 and 23 March 2010.
The Evidence
4The
plaintiff read the affidavit of Sharon Larysa Ohnesorge of 11 June
2011. One volume of material containing the 25 decisions of the various
courts and tribunals relating to proceedings in which the defendant has
been involved were exhibited to that affidavit.
5The
plaintiff also relied upon a further affidavit of Sharon Larysa
Ohnesorge of 28 June 2012 which included annexures evidencing enquiries
the plaintiff made to registries of various courts and tribunals to
ascertain whether the defendant has any proceedings on foot,
correspondence with the defendant enclosing a Notice to Admit Facts, and
pleadings filed in District Court proceeding 2011/143828 which have
been instituted by the defendant and are currently on foot.
6The affidavit material was admitted without objection.
7The Notice to Admit Facts required the defendant to admit that she was the party referred to as "PLFX" in PLFX v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 464 and that she was the party referred to as "NZ" in the following proceedings:
(1)NZ v Commissioner of Police [2005] NSWADT 35
(2)NZ v Commissioner of Police [2005] NSWADTAP 61
(3)NZ v NSW Land and Housing Corporation [2006] NSWADT 126
(4)NZ v NSW Land and Housing Corporation [2007] NSWADTAP 20
8There is no evidence that the defendant responded to the Notice in order to dispute those facts.
9The
plaintiff tendered Short Minutes of Order dated 14 July 2012. The
orders sought were substantially the same as those sought in the Summons
initiating these proceedings except that the plaintiff did not seek to
have District Court proceeding 2011/143828 stayed given that the
defendant is represented by solicitors who have formally signed to say
that those proceedings have reasonable prospects of success.
10The
plaintiff submitted that the evidence was that there were no other
proceedings involving the defendant on foot. The plaintiff did not press
for order 2 of the Summons and instead asked for liberty to apply to
the Court to seek appropriate relief in the event that between the
hearing date and delivery of judgment the plaintiff became aware of new
proceedings commenced by the defendant.
11The
defendant did not wish to be heard on this point and I granted liberty
for the plaintiff to apply in the event that any other proceedings were
brought before any tribunal or court.
12The plaintiff tendered a Statement of Agreed Facts of 6 July 2012 in accordance with s 191(3)(a) of the Evidence Act 1995, signed by both parties' legal representatives.
13The facts not in dispute were:
(1)That an order for costs was made against the defendant in each of the following proceedings or applications:
(a)Budd v New South Wales Commissioner of Police [2006] NSWSC 1265
(b)Budd v Federal Privacy Commissioner [2005] FCA 1264
(c)Budd v Federal Privacy Commissioner [2006] FCA 1131
(d)Budd v Federal Privacy Commissioner [2007] FCAFC 24
(e)Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540
(f)Budd v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 345
(g)Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 961
(h)Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1138
(2)None of the costs orders referred to at (1) have been discharged, varied or set aside;
(3)The defendant has not paid, whether in whole or in part, any of the costs orders referred to above; and
(4)The defendant has not settled or compromised her liability under the costs orders referred to above.
14An
affidavit of the defendant of 23 February 2012 was read. The plaintiff
objected to a number of paragraphs (paragraphs 8, 21, 26-29, 38, 53-56).
The affidavit was admitted subject to my rulings as to the relevance of
certain paragraphs and the possible admission of others for their use
as evidence of an opinion held by the defendant.
15The
affidavit annexed a number of letters from medical practitioners and
community leaders, orders made by the Consumer, Trader and Tenancy
Tribunal ("CTTT") and copies of
two testamurs from the University of Sydney in relation to a Bachelor of
Arts and a Masters of Arts (Philosophy) that the defendant had been
awarded. The plaintiff objected to each annexure aside from the orders
by the CTTT. Each contested annexure was provisionally admitted subject
to its relevance. The letters from medical practitioners and community
leaders were admitted subject to their use as evidencing contemporaneous
reports of the problems the defendant was facing rather than the to
prove the truth of the allegations contained within them.
The Legislative Scheme
16Section
8(1)(a) of the Act provides that a vexatious proceedings order in
relation to a person may be made where an "authorised court" is
satisfied "the person has frequently instituted or conducted vexatious
proceedings in Australia". Section 3 of the Act defines this Court as an
"authorised court".
17Section 8(2) of the Act provides that 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)."
18Section
8(3) of the Act provides that 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.
19Section 8(4) of the Act provides that the Attorney General has standing to bring an application under the Act.
20Section 4 of the Act defines "proceedings" as including:
"(a)
any cause, matter, action, suit, proceedings, trial, complaint or
inquiry of any kind within the jurisdiction of any court or tribunal,
and
(b)
any proceedings (including any interlocutory proceedings) taken in
connection with or incidental to proceedings pending before a court or
tribunal, and
(c)
any calling into question of a decision, whether or not a final
decision, of a court or tribunal, and whether by appeal, challenge,
review or in another way."
21Section 5(1) of the Act defines "institute", in relation to proceedings, as including:
"(a)
for civil proceedings--the taking of a step or the making of an
application that may be necessary before proceedings can be started
against or in relation to a party, and
(b)
for proceedings before a tribunal--the taking of a step or the making
of an application that may be necessary before proceedings can be
started before the tribunal, and
(c) for criminal proceedings--the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and
(d)
for civil or criminal proceedings or proceedings before a tribunal--the
taking of a step or the making of an application that may be necessary
to start an appeal in relation to the proceedings or to a decision made
in the course of the proceedings."
22Section 6 of the Act defines "vexatious proceedings", as including:
"(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."
Legal Principles
23The
test under s 8(1)(a) requires that before making a vexatious
proceedings order, the Court must be satisfied that the person
instituted or conducted vexatious proceedings as defined by s 6 and then
that those proceedings have been instituted or conducted frequently.
24It
is therefore necessary to review the proceedings involving the
defendant relied upon by the plaintiff as being vexatious in order to
first determine whether, if any, of the proceedings are vexatious and,
if so, then to determine whether they have been frequently instituted or
conducted. It is not sufficient that a litigant had instituted a number
of vexatious proceedings if the adverb "frequently" could not be used
in connection with the sum of them: Attorney General of NSW v Wilson [2010] NSWSC 1008 per Davies J at [10]-[11].
25In Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192, Davies J set out the relevant principles as follows:
"[7] I discussed in Attorney General of NSW v Wilson [2010]
NSWSC 1008 at [9]-[17] the principles associated with the making of an
order under s 8(1)(a) of the Act. Those matters may be summarised as
follows:
(a) the test of "frequently" is a less demanding test than was required under s 84 Supreme Court Act 1970;
(b) the term "frequently" is a relative term and must be looked at in the context of the litigation being considered;
(c)
the number of proceedings considered may be small if the proceedings
are an attempt to re-litigate an issue already determined against the
person;
(d) regard may be had to applications made by the person in proceedings commenced against that person;
(e) regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;
(f) regard may be had to proceedings in any Australian court or tribunal;
(g) regard may be had to the findings and result in the proceedings under consideration.
[8] In these proceedings, reference has been made to the judgment of Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 where his Honour eloquently expresses the principles relating to vexatious litigants at [2]-[12]. Whilst acknowledging that the test his Honour had to consider was the test under s 84 Supreme Court Act and is, as I have noted, a more demanding test than is required under the Vexatious Proceedings Act 2008, much of what his Honour sets out is relevant to the determination in the present case.
[2]
A comprehensive explanation of what makes a proceeding vexatious is
difficult to proffer for the boundary between the persistent and
over-zealous on the one hand, and the vexatious on the other, may at
times be indistinct. However, the following principles are, at least,
well-established. First,
the making of such an 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.
[3] Secondly,
the purpose of the order is not to impose condign punishment for past
litigious misdeeds; it serves instead to shield both the public, whose
individual members might be molested by vexatious proceedings, and the
Court itself, whose limited resources and needs must be carefully
managed and protected from the expense, burden and inconvenience of
baseless and repetitious suits.
[4] Thirdly,
as might naturally be expected, such a severe power is not enlivened by
the mere single occurrence of a vexatious claim. To err is human and
transient lapses of judgment, even serious ones, may be found in the
most reasonable of places. Instead, the power to make the order is
conditional upon the litigant having commenced not only a single
vexatious proceeding but also upon having commenced similar such
proceedings in this Court or in other Australian courts.
[5] Fourthly,
the qualities of vexation to which O 21 is addressed are to be found,
as the terms of r 1(1) show, in the commencement by the litigant of
proceedings which lack reasonable grounds and where the litigant's
institution of such proceedings may fairly be said to be both habitual
and persistent.
[6] Fifthly,
whether a proceeding is instituted without reasonable grounds is a
different question to, although not wholly disconnected from, the
inquiry into a proceeding's legal merits. The wheat, no doubt, must be
separated from the chaff but in this area the question is whether what
is before the Court contains any wheat at all. Although, often enough,
no great guidance is obtained by exchanging one formula of words with
another, it will be usually of some assistance, limited perhaps, to ask
whether the issues brought to the Court for determination are manifestly
hopeless or devoid of merit. It is, in that context, important to
distinguish the difficult from the ridiculous and the unlikely from the
hopeless.
[7] Sixthly,
although the ways in which unreasonable grounds may manifest themselves
are myriad, one form often to be found in the baggage of the vexatious
is a failure, often a refusal, to understand the principles of finality
of litigation which rescue court and litigant alike from a Samsara of
past forensic encounters.
[8] Seventhly,
it is the related quality of repetition which underpins, in part, a
need for the institution of the proceedings to deserve the appellations
habitual and persistent. The litigant's conduct will be habitual where
the commencement of proceedings occurs as a matter of course when
appropriate conditions for their commencement are present as was
explained by Roden J in Attorney-General v Wentworth (1988)
14 NSWLR 481 at 492. That formulation may not wholly explain the
litigant who commences proceedings on any occasion and without the
presence of any conditions, whether appropriate or otherwise. In such
cases, the idea of constant repetition driven by habit and symptomatic
of an inability not to engage in the behaviour may be more useful.
Persistence, on the other hand, generally suggests stubborn
determination but, in the context of the vexatious, carries with it the
capacity to endure failure beyond the point at which a rational person
would abandon the field.
[9]
Eighthly, each of these notions - the want of reasonable grounds,
habitual institution and persistent institution - are to be gauged
objectively. But this does not mean that a litigant's own protestation
as to his or her own mental state is irrelevant; frequently enough, the
vexatious are betrayed out of their own mouths. Rather, the need for
objective determination protects courts from the vexatious litigant who
is genuinely, but misguidedly, persuaded as to the correctness of his or
her own conduct.
[10]
Ninthly, the power to make the order arises when proceedings commenced
in the way described are found to exist. But the notion of a proceeding
is a broad one including a substantive proceeding directed at the
attainment of final relief and collateral applications within such a
proceeding; further, it extends outside the proceeding itself and
embraces appeals there from and applications which, whilst not made in
the proceeding, are properly to be seen as collateral thereto - so much
flows from the definition of proceeding in s 4 of the Federal Court of
Australia Act 1976 (Cth).
...
[12]
Finally, once it is concluded that the Court's power to prevent a
litigant from commencing or pursuing proceedings has been enlivened, 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."
The Defendant's Litigation History
26In
making an order under s 8 of the Act, it is for the Court to form its
own view about each proceeding relied upon by the plaintiff however it
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: Attorney General v Croker [2010] NSWSC 942 at [125]; Wilson at [22].
27A
very useful summary of the defendant's litigation history consisting of
25 different proceedings has been created by agreement between both
parties. That summary is included as a schedule to this judgment.
The Plaintiff's Submissions
28The
plaintiff submitted that 24 of those 25 proceedings were vexatious in
that they were instituted or pursued without reasonable prospects of
success and/or were otherwise an abuse of process. In each of those 24
proceedings an adverse decision was made against the defendant.
29The plaintiff does not submit that the 25th proceeding, NZ v NSW Land and Housing Corporation [2006] NSWADT 126, was vexatious given that the Administrative Decisions Tribunal ("ADT") granted an order of interim relief in favour of the defendant.
30In its written submissions, the plaintiff referred to the decision of Croker supra and identified some circumstances that had been held to be an abuse of process:
(1)The
pursuit of proceedings that have no prospect of success, or no real
prospect of resulting in a remedy of any substance, but which involved
unjustifiable expense or use of judicial resources (at [17]);
(2)The
pursuit of concurrent proceedings for substantially the same relief, or
the pursuit of fresh proceedings after unremedied default in previous
proceedings (at [17]);
(3)A
determination to persist with futile appeals in the face of repeated
judicial observations that arguments were doomed to failure (at [133]);
and
(4)To
cause others to incur legal costs in responding to hopeless
applications, in circumstances where they have blithely disregarded
costs orders made against them (at [134]).
31In
assessing whether proceedings had no reasonable prospects of success,
it was submitted that the Court is entitled to have regard to the result
of the proceedings and the findings of the judicial officers that
decided them but that the Court need not go behind the findings of a
judge to the merits of that decision, as would be appropriate on an
appeal.
32As to the term "frequently", the plaintiff referred to the decision in Pascoe v Liprini [2011] NSWSC 1485 where the Court held:
"The
term 'frequently' is relative; it must be looked at in the context of
the litigation being considered. 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. 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" (at [14] citations
omitted).
33The
plaintiff also highlighted that to deprive anyone the right to access
the courts was a very serious matter and therefore an order under s 8
should not be made lightly.
34The
plaintiff further submitted that the purpose of an order under s 8 is
not intended to punish the defendant or to suggest that there was no
explanation for why the defendant acted in the way she did in commencing
litigation but to shield the public and the courts from the expense and
further inconvenience of baseless suits.
35The
plaintiff's written submissions also provided an outline of the general
features of the defendant's litigation history which support the making
of an order under s 8, which can be summarised as follows:
(1)Lacking in merits and both factually and legally misconceived;
(2)Frequent multiple appeals from initial unfavourable decisions;
(3)Frequently conducts separate litigation raising the same or similar issues;
(4)The
manner in which the defendant conducts litigation is unfocussed,
unhelpful and likely to cause both her opponents and the courts to waste
time and resources;
(5)The
defendant's medical condition (from which she continues to suffer,
details of which are established in reports in evidence) appears to
explain both the substantive content of her litigation and the manner in
which she conducts it.
36An
outline of the defendant's litigation history of 25 different
proceedings was contained in the plaintiff's written submissions. In its
oral submissions, the plaintiff categorised 23 of those proceedings as
falling under ten different themes to demonstrate that they were
vexatious within the meaning of s 6, with some proceedings falling under
more than one theme. I will return to these themes shortly.
37It was also submitted that the 24th proceeding, Budd v University of Sydney [2010]
NSWADT 77, was commenced without reasonable prospects of success. As
the plaintiff did not categorise this proceeding as falling under any
particular theme, it is convenient to outline the circumstances of that
decision here.
38That
proceeding concerned a complaint by the defendant against the
University of Sydney alleging that it had discriminated against her by
requiring a student of a Bachelor of Arts majoring in Biblical Studies
to attend on campus for at least 75% of classes. The ADT held that the
University had not refused to accept her enrolment application; rather
it had indicated what would be expected of the defendant by way of
attendance (at [13]). The ADT also held that the University had not
imposed terms upon her admission; rather, the attendance requirement was
a condition of the defendant being able to pass the course in which she
was going to enrol.
39The
ADT found that even if the defendant's complaint to the ADT had been
made after the University refused her enrolment application, her
complaint would still have been dismissed in substance because the 75%
attendance requirement was reasonable in the circumstances (at [22] and
[24]). The ADT also held that requiring the course be taught without
attendance would not have been an alternative means of providing the
same course, rather, it would have required the University to conduct a
different activity altogether (at [25]).
Theme 1: unintelligible applications
40The
plaintiff submitted that there were four proceedings where the
Tribunals and/or Courts were not able to discern what the defendant was
seeking to agitate.
41The first proceeding, Budd v Federal Privacy Commissioner
[2005] FCA 1264, was an application by the defendant for judicial
review of a decision by the Federal Privacy Commissioner. Hely J found
that the defendant did not identify any error of law on the part of the
Federal Privacy Commissioner and therefore adjourned proceedings on a
number of occasions to enable her to obtain legal assistance and amend
her application.
42The
defendant did not obtain legal assistance but nevertheless filed an
amended application. Hely J held that the amended application did not
disclose "intelligible grounds of review" (at [6]) and dismissed the
application with costs.
43The second proceeding, Budd v Federal Privacy Commissioner
[2005] FCA 1478, was an application for leave to appeal from the
previous decision. The application was made out of time. Branson J held
that the defendant "did not present, and still has not presented, an
intelligible case for the respondent to answer" (at [3]) and dismissed
the application.
44The third proceeding, Budd v Federal Privacy Commissioner
[2006] FCA 1131, was an application for judicial review of a decision
made by the Federal Privacy Commission declining to investigate a
complaint made by the defendant.
45Allsop
J (as his Honour then was) held that the application "lacks any
coherent basis of complaint" (at [2]). Following a number of
opportunities for the defendant to clarify her complaint which resulted
in her sending further supporting material, Allsop J found that there
was "no single document which sets out in any convenient form [the
defendant's] complaints" (at [16]) and concluded that he saw "no basis
for any allegation that any ground of review exists" (at [20]). His
Honour further held that "none of the material provided by [the
defendant] whether by way of evidence or submission grounds any coherent
claim" (at [21]). The application was therefore dismissed with costs.
46The fourth proceeding, Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 961, was an attempt to appeal from a decision by the Administrative Appeals Tribunal ("AAT") (PLFX v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 464 discussed below at [54] and [118]). The AAT had
affirmed a decision by the Social Security Appeals Tribunal which had
affirmed Centrelink's decision to reject the defendant's application for
a "crisis payment".
47Emmett
J stated that the defendant's submissions made "assertions of denial of
rights, denial of natural justice, errors of law, denial of rights to
justice, severe injustice and denial of legal rights. However, there is
no logical argument or reasoning contained in the submission in support
of such assertions" (at [12]).
48Leave
was granted allowing the defendant to file an amended Notice of Appeal.
Emmett J found that the Amended Notice was "embarrassing", "highly
repetitious", and "quite incomprehensible in many respects" (at [18]).
The application was summarily dismissed with costs.
Theme 2: voluminous material
49The
plaintiff submitted that there were five proceedings in which the
defendant's conduct had a tendency to subject the parties in court to
voluminous material.
50The first proceeding was again Budd v Federal Privacy Commissioner
[2005] FCA 1264 (discussed above at [41]) in which the plaintiff noted
that the defendant had provided the solicitors for the Federal Privacy
Commissioner with 775 pages of material and had filed numerous documents
with the Court.
51The second proceeding was again Budd v Privacy Commissioner [2006]
FCA 1131 (discussed above at [44]) in which the plaintiff filed six
bundles of documents comprising of over 1,100 pages before Allsop J.
52The third proceeding, Budd v State of NSW [2008]
NSWADT 239, was an application against the ADT itself because the ADT
had restricted the times the defendant could communicate with the
Registry.
53The
plaintiff noted that the ADT found that the defendant had contacted the
Registry numerous times on most days and engaged in lengthy
conversations with different staff members raising the same issues
repeatedly which prevented the staff from attending to other enquiries.
The defendant had also regularly faxed lengthy materials, often up to
200 pages to the ADT, which prevented the ADT from receiving facsimiles
from other parties (at [8]).
54The fourth proceeding, PLFX v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 464 (referred to above at [46]), was an application by the
defendant to review a decision of the Social Security Appeals Tribunal
which affirmed Centrelink's decision rejecting her application for a
"crisis payment". In that proceeding, the AAT had found that the
defendant had filed "voluminous additional documentary material with the
Tribunal" (at [9]).
55The plaintiff submitted that in the fifth proceeding, Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009]
FCA 961 (referred to above at [46]), which was an attempt to appeal the
previous decision, Emmett J referred to numerous documents of 20 or 30
pages filed in court as repetitious and generally incomprehensible (at
[15]-[16]).
Theme 3: complaints already declined by the President of the Anti-Discrimination Board
56The
plaintiff submitted that there were four proceedings that commenced at a
point where they had already been deemed as lacking in substance by the
Anti-Discrimination Board ("ADB").
57In each of the four proceedings, Budd v State of NSW [2006] NSWADT 14, Budd v State of NSW [2007] NSWADT 88, Budd v State of NSW [2008] NSWADT 239 and Budd v State of NSW [2009] NSWADT 217, the defendant made an application under s 96 of the Anti-Discrimination Act
1977 for permission to proceed with discrimination complaints that the
President of the ADB had declined as lacking in substance.
58The first proceeding, Budd v State of NSW [2006] NSWADT 14, involved two complaints.
59In
relation to the first complaint, the defendant alleged that the Police
had discriminated against her by knocking on her door and threatening to
break it down during their investigations of an allegation that the
defendant had breached an AVO made by her neighbour, Ms Gardiner
60The
ADT held that in investigating an alleged breach of an AVO, the Police
were not providing a "service" to the defendant (at [12]). Therefore her
complaint had "no reasonable prospects of success" given that she had
relied on provisions of the Anti-Discrimination Act 1977 which only applied to the provision of "services".
61In
relation to the second complaint, the defendant alleged that the Police
had discriminated against her by not investigating her allegations
against her sister in relation to a longstanding property dispute (at
[4]).
62The
ADT held that her complaint had "no reasonable prospects of success"
because the decision to investigate and prosecute alleged crimes does
not involve the provision of "services" to victims of crime (at [15]).
The ADT therefore dismissed both her applications.
63The second proceeding, Budd v State of NSW [2007]
NSWADT 88, was in relation to two matters with the Police: a refusal by
the Police to serve an application for an AVO and a request that the
defendant not send facsimiles to the Police.
64The
AVO complaint arose after the Registrar of the Local Court refused to
issue a summons in response to the defendant's application for an AVO.
The ADT found that since a summons was never issued it therefore
followed that the Police never failed to serve it (at [7]-[8]).
65In
relation to the facsimile restriction, the ADT found that unrestricted
access to send documents by facsimile was not a "service" provided by
the Police and therefore her complaint could not succeed (at [12]).
Therefore the application was refused.
66The defendant's discrimination complaint in the third proceeding, Budd v State of NSW [2008]
NSWADT 239 (discussed above at [52]), involved restrictions on the
times that she could communicate with the ADT Registry. The ADT held
that it was unlikely that the defendant would be able to show that she
was treated any differently to a person engaging in such conduct who did
not have her disability and that the restrictions were reasonable (at
[17]-[18]). Her complaint "does not have any reasonable prospects of
success" (at [19]) and the ADT refused the application.
67The fourth proceeding, Budd v State of NSW [2008]
NSWADT 217, related to a complaint against a Ms Ramjan who had been
appointed by the ADT to act as the defendant's representative in her
dispute with the Department of Housing pursuant to s 71(4) of the Administrative Decisions Tribunal Act 1997. Ms Ramjan had settled those proceedings on behalf of the defendant.
68The
defendant complained that Ms Ramjan had "failed to achieve promised
outcomes" which "led to an exacerbation of her disabilities" (at [8]).
She alleged that Ms Ramjan's failure to achieve those outcomes was due
to discrimination against her on the ground of disability.
69The
ADT refused the application on the basis that Ms Ramjan did not fail to
provide a service to the defendant (at [32]), that Ms Ramjan did not
treat the defendant less favourably on account of her disability than
any non-disabled person (at [38]-[39]) and that Ms Ramjan did not
require the defendant to comply with any requirement or condition with
which she could not comply with by reason of her disability (at [41]).
The ADT therefore concluded that the defendant's complaint had "no
prospect of succeeding" (at [43]).
Theme 4: lack of jurisdiction
70The
plaintiff submitted that there were four proceedings that were
commenced by the defendant in circumstances where the procedural
prerequisites for the Tribunal or Court to hear the proceedings were not
satisfied.
71The first proceeding, NZ v Commissioner of Police [2005] NSWADT 35, related to two applications made by the defendant for review of conduct under the Privacy and Personal Information Protection Act 1998 ("PPIP Act") and for a review of a decision under the Freedom of Information Act 1989 ("FOI Act").
72In
relation to the privacy application, the defendant filed the
application prior to any notice being given to the Police or opportunity
for the Police to conduct an internal review of her complaint (at [5]).
Section 55 of the PPIP Act provides that a person may apply to the ADT
after an internal review has been requested. The ADT found, therefore,
that it did not have jurisdiction to hear the application because the
agency in question had not had the opportunity to conduct an internal
review (at [7]).
73In relation to the freedom of information ("FOI")
application, the defendant had made what the ADT had understood as a
"sufficiency of search objection" after she had made a FOI request to
the Police. The defendant did not seek an internal review from the
Police (at [15]). Section 53 of the FOI Act provides that the right to
apply for review by the ADT is predicated on their having been first an
internal review by the agency in question. The ADT, therefore, found
that it did not have jurisdiction unless the agency in question had
conducted an internal review (at [15]-[16]). Both applications were
therefore dismissed.
74In the second proceeding, NZ v Commissioner of Police [2005]
NSWADTAP 61, the defendant sought to appeal the previous decision. In
relation to the privacy matter, the defendant sought to adduce further
evidence. The ADT Appeal Panel ("Appeal Panel")
refused this application because the evidence was available to her at
the time of the Tribunal hearing and that there was nothing in the
material that supported her assertion that she had in fact applied for
an internal review (at [3]).
75In
relation to the FOI matter, the defendant sought to challenge the ADT's
finding that she had not sought an internal review. The Appeal Panel
found that there was no evidence to support that contention (at [5]).
The appeal was therefore dismissed.
76In the third proceeding, Budd v New South Wales Commissioner of Police [2006] NSWSC 1265, the defendant sought to appeal the previous decision of the Appeal Panel.
77Bell
J identified a number of difficulties with the application noting that
it was made out of time (at [15]-[17]), and that the relief claimed was
inappropriate given that Supreme Court's jurisdiction in that proceeding
was limited to appeals on questions of law (at [19]). Nevertheless the
application was dealt with as a matter of substance.
78Bell
J found that the proceedings were "manifestly hopeless" (at [26])
because the defendant's challenge to the finding that she had not sought
an internal review was a question of fact, not law (at [23] and [25])
and that her challenge to the sufficiency of the reasons given for
refusing to allow her to adduce fresh evidence could not be established
(at [24]). The application was dismissed with costs.
79In the fourth proceeding, Budd v State of NSW [2007] NSWADTAP 55, the defendant attempted to appeal from a previous decision by the ADT (Budd v State of NSW [2007]
NSWADT 88 referred to above at [63]) in which the ADT refused to grant
leave to the defendant to pursue two complaints against the Police
alleging discrimination which had already been declined by the President
of the ADB.
80Section 96(4) of the Anti-Discrimination Act
1977 provides that there can be no appeal to the Appeal Panel against a
refusal to grant leave to pursue a complaint that has been declined by
the President of the ADB. Therefore, the Appeal Panel had no
jurisdiction and the appeal was summarily dismissed (at [8]).
Theme 5: no evidence capable of supporting her case
81The
plaintiff submitted that there were three proceedings in which the
defendant adduced no evidence capable of supporting her case and that in
one of those three instances she adduced evidence that was contrary to
the legal case she was advancing.
82The first proceeding, Budd v Department of Housing (Tenancy) [2004]
NSWCTTT 622, was an application by the defendant to the CTTT seeking to
restrain the Department of Housing from invading her privacy and peace
and comfort, requiring the Department to clean out the common area
around her apartment and damages for pain and suffering.
83The
CTTT noted that the defendant put on evidence about her mental health
but no evidence to support her claim that the state of her common area
was causing her serious inconvenience and required cleaning or that the
Department of Housing had interfered with her privacy or quiet
enjoyment.
84The
Department of Housing put on evidence that it had never conducted
client visits to the defendant's premises, that some of the pot plants
that were in the common area had been removed and that the remaining pot
plants were well maintained and the area kept neat. Therefore, the CTTT
found that there was no basis to the defendant's claim and dismissed
the application.
85The second proceeding, NZ v Commissioner of Police [2005] NSWADTAP 61 (discussed above at [74]), was an appeal of an earlier decision by the ADT (NZ v Commissioner of Police [2005]
NSWADT 35, discussed above at [71]). The ADT had dismissed the
defendant's application requesting reviews of conduct and decisions
under the PPIP Act and FOI Act respectively.
86As
outlined at [71]-[75], the defendant sought to adduce further evidence
that she had sought an internal review by the Police in relation to both
the FOI and privacy complaints. The Appeal Panel found that the
evidence she sought to adduce was available at the time of the original
hearing and that the evidence did not support her assertion that she had
applied for an internal review. The plaintiff submitted that the Appeal
Panel's findings constituted another example of proceedings where the
fundamental factual contention of the defendant was not supported by any
evidence.
87The third proceeding, Budd v Secretary, Department of Education, Employment and Workplace Relations [2008]
AATA 137, was an application by the defendant seeking review of a
decision by the Social Security Appeals Tribunal that affirmed
Centrelink's rejection of the defendant's application for a mobility
allowance.
88The defendant's entitlement to a mobility allowance was dependant upon her satisfying the "travel test" under s 1035 of the Social Security Act 1991 (Cth), being that the nature of her work required her to travel to and from that work (at [5]).
89The
defendant's own evidence was that due to her health conditions she was
conducting her voluntary work from her home (at [8]). The plaintiff
submitted that this evidence was contrary to the legal case she was
advancing.
90The
AAT concluded that the defendant did not satisfy the "travel test"
because "the nature of her voluntary work does not require her to travel
to and from her home for the purpose of undertaking that work" (at [9])
and affirmed the decision of the Social Security Appeals Tribunal (at
[12]).
Theme 6: unfounded allegations of denial of natural justice
91The
plaintiff submitted that the defendant instituted three proceedings
claiming that she had been denied natural justice where it was obvious
or apparent that there was never such a denial. The plaintiff further
submitted that the defendant took this course of action when she was
dissatisfied with the merits of a decision against her.
92In the first proceeding, Budd v Federal Privacy Commissioner [2007]
FCAFC 24, the defendant attempted to appeal from a previous decision by
Allsop J (as his Honour then was) in the Federal Court (Budd v Federal Privacy Commissioner
[2006] FCA 1131 discussed above at [44]) in which his Honour concluded
that the defendant's application for review of a decision by the Federal
Privacy Commissioner "lacks any coherent basis for complaint" (at [2]).
93The
defendant alleged that Allsop J failed to accord her natural justice by
ignoring evidence that she had adduced in support of her case (at
[4]-[8] and [15]). The Full Federal Court noted that Allsop J had
referred to all of the defendant's evidence and that his Honour had
found that there was nothing in the material that supported her case.
Therefore, the allegation that she was denied natural justice was deemed
to fail and the application was dismissed with costs.
94In the second proceeding, Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540, the defendant attempted to appeal from a previous decision by the AAT (Budd v Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 137 discussed above at [87]) in which the AAT affirmed the
Social Security Appeals Tribunal decision to affirm Centrelink's
decision rejecting the defendant's application for a mobility allowance.
95The
defendant alleged that she had been denied natural justice and that the
AAT failed to consider, or properly consider, a medical report upon
which she relied (at [22] and [24]). The Federal Court concluded that
that "there was no evidence to support Ms Budd's claim that there had
been a denial of natural justice" (at [25]) and that the AAT did take
into account her medical evidence and did not do anything improper in
its consideration of it (at [24]). The Federal Court dismissed her
application with costs.
96In the third proceedings, Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1138, the defendant attempted to appeal from a decision by Emmett J in the Federal Court (Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] FCA 961 discussed above at [46] and [55]). In that decision
Emmett J concluded that the defendant's application and subsequent
amended application seeking review of a decision by the Social Security
Appeals Tribunal to affirm Centrelink's rejection of the defendant's
application for a "crisis payment" was incomprehensible and that "there
is no prospect of the appeal succeeding" (at [20]).
97The
defendant alleged that Emmett J had failed to accord her with
procedural fairness because his Honour had not adjourned the matter long
enough to allow the defendant to obtain legal representation (at [10]).
The Federal Court found that "there is nothing in" that allegation (at
[12]).
98The
Federal Court held that the defendant had "conspicuously failed to
identify any error on the part of [Emmett J]. All that she has done is
to repeat her many complaints about the merits of the decision made by
the Tribunal and the prior decision-makers" (at [21]) and dismissed the
application.
Theme 7: inappropriate relief sought
99The
plaintiff submitted that there were four proceedings in which the
defendant sought unnecessary, pointless or plainly inappropriate relief.
100The first proceeding, NZ v NSW Land and Housing Corporation [2007] NSWADTAP 20, was an application to the Appeal Panel for leave to appeal against a decision of the ADT (Budd v State of NSW [2008]
NSWADT 217, discussed above at [67]). The ADT had refused to revoke the
appointment of a representative for the defendant in her dispute with
the Department of Housing.
101Ms
Ramjan had been appointed by the ADT to be the defendant's
representative as it was satisfied that the defendant was an
"incapacitated person" under s 71(4) of the Administrative Decisions Tribunal Act 1997.
Ms Ramjan settled the case on the defendant's behalf and those
proceedings were dismissed pursuant to a Deed of Settlement that was
entered into by the parties.
102The
application before the Appeal Panel took place after the settlement and
after the dismissal of the proceedings against the Department of
Housing. The plaintiff observed that the principal substantive reason
that the defendant was not entitled to the relief sought was because
there was no utility to the appeal. The underlying proceedings had been
dismissed and the defendant had not appealed against the dismissal of
the underlying proceedings (at [9]).
103The plaintiff submitted that in the next proceeding, NZ v Commissioner of Police [2005]
NSWADT 35 (discussed above at [71]), the defendant sought inappropriate
relief by turning to the ADT rather than first requesting that the
agency in question, the Police, conduct an internal review of her FOI
and privacy complaints.
104Similarly, in the third proceeding, Budd v New South Wales Commissioner of Police [2006]
NSWSC 1265 (discussed above at [76]), the plaintiff submitted that the
defendant sought inappropriate relief in her appeal against a decision
of the Appeal Panel in relation to the FOI and privacy matter.
105The
plaintiff pointed to the remarks of Bell J which noted that the
defendant claimed relief in terms of compensation and costs (at [6]) and
that such relief was plainly inappropriate given that the Supreme
Court's jurisdiction in that proceeding was limited to appeals on
questions of law (at [19]).
106In the fourth proceeding, Budd v State of NSW [2006]
NSWSC 1266, the plaintiff submitted that the defendant sought
inappropriate relief in her appeal against a decision by the ADT (Budd v State of NSW [2006]
NSWADT 14 discussed above [58]) which refused permission for her to
pursue two discrimination complaints that had been declined by the
President of the ADB.
107The plaintiff claimed relief for compensation for medical and legal costs and damages for pain and suffering (at [6]).
108The
defendant had previously sought leave to appeal to the Appeal Panel but
that was not granted. Bell J noted that the Supreme Court only had
jurisdiction to hear appeals from the Appeal Panel and not the ADT at
first instance (at [10]). Her Honour also found that to the extent to
which the defendant sought to appeal against the Tribunal's decision, it
was thus misconceived (at [11]) and concluded that the proceedings were
"manifestly hopeless" and dismissed them (at [21]).
Theme 8: inappropriate use of anti-discrimination legislation
109The
plaintiff submitted that the defendant attempted to use
anti-discrimination legislation to mount collateral attacks on other
decisions or to express her unhappiness with decisions or actions that
affected her.
110As to the first proceeding to the support this submission, Budd v State of NSW [2006]
NSWADT 14 (referred to at [58] above), the plaintiff submitted that the
defendant responded to the Police knocking on her door to investigate
an alleged breach by her of an AVO by commencing proceedings under the Anti-Discrimination Act 1977.
111The
plaintiff argued that those proceedings were also in response to the
Police's refusal to investigate an allegation of fraud against her
sister in a long-running dispute that the defendant had with her about
the distribution of assets after the death of their mother.
112As to the second proceeding, Budd v State of NSW [2007]
NSWADT 88 (discussed above at [63]), the plaintiff argued that the
defendant brought proceedings against the Police alleging discrimination
by refusing to serve an AVO as a way of responding to the Local Court's
decision to refuse to issue the AVO.
113As to the third proceeding, Budd v State of NSW [2007]
NSWADT 112, the plaintiff argued that this was another response by the
defendant to another refusal by the Local Court to issue an AVO. In this
proceeding the plaintiff alleged that the Local Court, magistrates and
court officers had discriminated against her on the grounds of
disability.
114Those
proceedings were dismissed after the ADT found that taking the
defendant's case at its highest, it was "misconceived, lacking in
substance and cannot succeed" (at [63]).
115As to the fourth proceeding, Budd v State of NSW [2008]
NSWADT 239 (discussed above at [52] and [66]), the plaintiff argued
that the defendant commenced proceedings alleging discrimination against
the ADT itself in response to the restrictions the ADT Registry had
placed on her as to when she could communicate with it.
116As to the fifth proceeding, Budd v State of NSW [2009]
NSWADT 217 (discussed above at [67] and [100]), the defendant claimed
that the representative the ADT appointed to act for her in her dispute
against the Department of Housing, Ms Ramjan, discriminated against her
on the ground of disability. The plaintiff argued that these proceedings
were commenced in response to the defendant's previous unsuccessful
attempt to have Ms Ramjan removed as her representative.
Theme 9: proceedings against one entity in order to agitate a dispute with another entity
117The
plaintiff argued that in one set of proceedings the defendant used or
created a dispute with one entity in order to agitate a dispute with
another entity, namely, the Department of Housing.
118In PLFX v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2009] AATA 464 (discussed above at [46] and [54]), the defendant
sought a review of a decision by the Social Security Appeals Tribunal
which affirmed Centrelink's decision rejecting her application for a
"crisis payment".
119The
defendant attempted to obtain the "crisis payment" after having sought
to have her bathroom renovated by the Department of Housing which
required her to move out. The Department had obtained hotel
accommodation and provided travelling costs for her.
120The
defendant applied for the payment on the basis that she had been
required to leave her home because of "extreme circumstances". The AAT
held that while the defendant had to move out of her home due to
renovations, that did not amount to an "extreme circumstance" (at [16])
and affirmed the Social Security Appeal Tribunal's decision.
121In Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009]
FCA 961 (discussed above at [46], [55] and [96]) the defendant sought
to appeal from the previous decision by the AAT. Emmett J concluded that
both the defendant's Notice of Appeal and amended Notice of Appeal were
"incomprehensible" (at [11]-[12] and [18]), that "there is no prospect
of the appeal succeeding" (at [20]) and dismissed the proceedings with
costs.
122In Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009]
FCA 1138, the defendant attempted to appeal from the previous decision
by Emmett J. The Federal Court found that it was "far from satisfied
that [the defendant] has any prospects of succeeding in any appeal that
might be lodged were leave to be granted" (at [22]) and dismissed her
application with costs.
123The
plaintiff noted that the various decision makers observed that the
defendant's complaints were part of her long-standing dispute with the
Department of Housing. The plaintiff pointed to remarks by the AAT at
[3]: "In summary, taking into account other answers to questions, the
claim is a continuation of her ongoing dispute with [the Department of
Housing]. She specified that the extreme circumstance she complained
about was a rental crisis, that is living in conditions that she
considers are unfit." Similarly, at [17], the AAT noted that "[the
defendant's] complaint is really a longstanding one about her
accommodation which is provided by [the Department of Housing]".
Theme 10: merits reviews where proceedings limited to questions of law only
124The
plaintiff submitted that there were four proceedings in which the
defendant sought merits reviews where the proceedings were limited to
questions of law only. The plaintiff submitted that the defendant had
been told that appeals to the Federal Court could only deal with errors
of law and that it was not entitled to go and investigate the merits of
decisions but continued to persist with those forms of applications.
125The first proceeding, Budd v Secretary, Department of Education, Employment and Workplace Relations [2008]
FCA 1540 (discussed above at [94]), was an attempt to appeal from a
decision by the AAT which affirmed the Social Security Appeals
Tribunal's decision to affirm Centrelink's refusal to grant the
defendant a mobility allowance. The Federal Court found that the bases
upon which the defendant challenged that finding only involved matters
of fact (at [27]-[28]).
126The second proceeding, Budd v Secretary, Department of Education, Employment and Workplace Relations
[2009] FCA 345, was an attempt to appeal from the previous decision.
The Federal Court held that the decision of the AAT sought to be
challenged by the defendant "turned entirely on questions of fact" (at
[16]). After considering the defendant's submissions, the Federal Court
held that "none of the material... which was relied upon by Ms Budd in
her oral submissions to me provides a foundation for a conclusion, or
even a respectable argument, that the AAT committed an error of law" (at
[39]).
127The third proceeding, Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009]
FCA 961 (discussed above at [46], [96] and [121]), was an attempt to
appeal a previous decision by the AAT affirming a decision by the Social
Security Appeals Tribunal which had affirmed Centrelink's decision
rejecting the defendant's application for a "crisis payment". The
Federal Court held that the defendant's additional submissions served
"only to confirm that [the defendant] is seeking to invite the Court to
canvass the factual conclusions reached by the AA Tribunal" (at [19]).
128The fourth proceeding, Budd v Victims Compensation Corporation Fund [2009]
NSWDC 35, was an application for leave to appeal to the District Court
from a decision of the Victims Compensation Tribunal. The defendant had
applied for compensation as a result of an alleged assault upon her by a
neighbour. The primary decision-maker had concluded that the defendant
had been assaulted but that she had not suffered the injuries that she
claimed to have suffered (at [7]).
129The District Court refused leave to appeal because the asserted grounds were without merit (at [12]-[14]).
130The
plaintiff observed that in just over five years the defendant had
instituted 14 separate sets of proceedings and that these sets often
involved one or more appeals or other applications. It was submitted
that such a litigation history qualified as "frequent" institution or
conducting of proceedings.
131The
plaintiff submitted that the examination of the defendant's litigation
history demonstrates that each of those 24 proceedings could properly be
characterised as vexatious. Each of those proceedings was an abuse of
process within the meaning of s 6(a) in that it was instituted or
pursued without reasonable grounds within the meaning of s 6(c).
132The
plaintiff further submitted that to the extent of the five proceedings
in which the defendant filed "voluminous material", those proceedings
were also vexatious in that the defendant conducted them in a way so as
to harass or annoy, cause delay or detriment in doing so pursuant to s
6(d).
133The
plaintiff submitted that it was relevant to consider that in eight
proceedings a costs order was made against the defendant that she has
not paid nor been relieved of the obligation to pay. The plaintiff
pointed to remarks by Fullerton J in Croker where her Honour stated:
"I
am satisfied that to cause others to incur legal costs in responding to
hopeless applications, in circumstances where the defendant has
blithely disregarded costs orders made against him is also an abuse of
the courts' processes" (at [134]).
The Defendant's Submissions
134Mr Provera appeared for the defendant and made both written and oral submissions on her behalf.
135In
his written submissions, Mr Provera addressed the litigation events
that the defendant had been involved with and detailed specific facts
and in some cases some observations.
136The
submissions deal with the defendant's personal circumstances and her
position of disadvantage in various respects, namely, her housing
circumstances, health, income and lack of legal representation. Those
circumstances are summarised below:
The defendant's unit
137The
defendant has resided at a unit in South Coogee since about September
1984. The unit is rented from the NSW State Government housing authority
("Department of Housing").
The defendant's health
138Mr
Provera pointed to the defendant's various mental health problems
including agoraphobia, social anxiety disorder and panic attacks. He
submitted that at all relevant times those problems affected her ability
to leave her unit and interact with other people as well as commence
and effectively maintain litigation.
The defendant's income
139Mr
Provera further submitted that at all relevant times the defendant had
limited income, no major assets and no real savings and was accordingly
unable to afford private legal representation. He noted that she has
been dependant upon a disability support pension since 1999.
Legal representation
140Mr
Provera also submitted that the defendant received limited assistance
from legal practitioners. The defendant prepared most of the documents,
including initiating processes, forms and submissions in respect of the
proceedings relied upon by the plaintiff as being vexatious.
141The
submissions also include a number of points in relation to the various
disputes that the defendant had with different entities however they are
not developed in any analytical sense. Those points are summarised as
follows:
Dispute with Ms Gardiner
142Ms
Gardiner is a former neighbour of the defendant. A dispute arose
between them as to the large amounts of items left in the common area
adjacent to Ms Gardiner's unit. The defendant complained to the
Department of Housing about the common area however no action was taken.
143The
defendant obtained an AVO against Ms Gardiner requiring that Ms
Gardiner not threaten, assault, harass or stalk the defendant. The AVO
expired and the defendant unsuccessfully sought to apply for another
AVO.
144The dispute between the neighbours and associated legal proceedings ended in 2006 when Ms Gardiner moved from those premises.
Matters involving NSW Police
145The
Police attended the defendant's unit from time to time as a consequence
of her dispute with Ms Gardiner. The Police visits caused the defendant
stress and it was against this background that the defendant sought a
remedy for the breach of her privacy.
Dispute with the Department of Housing
146The
defendant complained to the Department about the need for renovation
and repair work in the unit but no action was taken. As a result the
defendant commenced legal action to obtain orders that the necessary
renovation and repair work be undertaken. As a result of this action, an
agreement was reached whereby the Department of Housing agreed, in
part, to renovate and repair the bathroom of the defendant.
147In
or about March 2006, Ms Ramjan was appointed as guardian for the
defendant in respect of matters involving the Department of Housing
before the ADT.
148The defendant did not agree to the appointment and accordingly sought to have Ms Ramjan removed from her role as guardian.
149Between about 16 and 24 June 2008, the Department of Housing renovated and repaired the defendant's bathroom.
150On
25 February 2010, the CTTT made an order requiring the Department of
Housing to inspect the unit and to undertake further necessary repairs.
Matters involving Centrelink
151The
defendant has been receiving benefits from Centrelink since 1984. Some
time around 2005 or 2006, the defendant formed the belief that
Centrelink had received incorrect information about her, namely about
the amount of her assets. The defendant believed that this incorrect
information had come in part from the Department of Housing.
152The
defendant contacted Centrelink and requested it delete that incorrect
information, or at least remove any mention of her name within such
material. Centrelink refused that request.
153The defendant commenced legal action to obtain orders that Centrelink comply with that request.
Action against University of Sydney
154In
1993 and 1998, the defendant was awarded a Bachelor of Arts and Master
of Arts (Philosophy) respectively from the University of Sydney.
155The
defendant regularly attended the University of Sydney for lectures,
tutorials and the like in respect of both the above courses.
156In
June 2008 the defendant applied to become a student in the Bachelor of
Arts degree majoring in Biblical Studies. The defendant unsuccessfully
sought a disability exemption from the attendance requirement. She
subsequently commenced legal action to obtain orders that the University
grant the request for a disability exemption.
157Mr Provera in oral submissions also addressed other matters which may be categorised as follows:
The requisite test
158Mr
Provera submitted that the defendant's litigation history could not
satisfy the requisite test under s 8 of the Act. In relation to the
definition of "vexatious proceedings" under s 6(a), Mr Provera submitted
that Goldberg J's discussion of "abuse of process" in White Industries (QLD) Pty Limited v Flower and Hart (1998) 156 ALR 169 outlined the principles to be applied in determining whether the proceedings had been such an abuse:
"the
concept of 'abuse of process' in this context involves a party using
court proceedings and procedures for a purpose unrelated to the
objectives which the court process is designed to achieve" (at 239).
159In
relation to the definition of "vexatious proceedings" under s 6(c), Mr
Provera submitted that the court should take a broader view rather than a
"legalistic view" when making its determination as to whether there had
been reasonable grounds for the defendant's litigation. This broad
view, it was submitted, should include a consideration of the motivation
for the litigation.
160Mr
Provera accepted that the assessment as to whether there were
reasonable grounds must be an objective one rather than a subjective one
however he submitted that such an assessment should not be limited to
the specific nature and venue of the litigation that occurred. Mr
Provera then submitted that the most significant cause of the
defendant's failure in the proceedings was her inability to obtain legal
representation, compounded by her restricted ability to leave her unit.
161In
his oral submissions, Mr Provera referred to a number of discrete facts
that related to some of the proceedings in question. He noted that
there was a clear dispute about the state of common area near the
defendant's unit with Ms Gardiner and that the dispute adversely
affected the defendant's health. Similarly, Mr Provera noted that over
the course of the dispute with the Department of Housing about the state
of the defendant's unit, renovations for her bathroom had been arranged
and the defendant was required to move out of her unit.
162It
was submitted that the two disputes were not without foundation given
that in February 2010 the CTTT had granted the defendant relief by
ordering that the Department of Housing inspect her unit and undertake
all necessary repairs.
163In
relation to the defendant's dispute with the Police, Mr Provera noted
that the issue that arose in the discrimination proceedings turned on
whether the Police were providing a "service" in their various dealings
with the defendant and noted that if the Police had been arresting her
then that would have been regarded as providing a "service" and the
Police would have had to take into account her disability.
164In
relation to the proceedings where the defendant provided voluminous
material, Mr Provera noted that such circumstances arise when the
defendant, as a disadvantaged unrepresented litigant, was trying her
best to provide appropriate documentation but was unable to do so.
165In
submissions in reply, the plaintiff made the following points in
relation to the requisite test to be applied. In making its
determination, the Court's primary consideration is the objective
prospects of success of the litigation in question rather than
subjective factors such as the defendant's genuine reasons for
commencing litigation and other mitigating factors.
166The
plaintiff further submitted that the question is objective because the
purpose of the jurisdiction is to protect the courts and members of the
public from the annoyance, waste of time and resources that result from
vexatious proceedings.
167As to the relevance of the principles outlined in White Industries,
the plaintiff noted that that was an application against solicitors to
pay the costs of proceedings commenced by their clients. The purpose of
Goldberg J's discussion was to identify the circumstances in which a
solicitor would incur a personal obligation to pay the costs of
proceedings that were an abuse of process. The plaintiff made reference
to his Honour's remarks where he detailed what constituted an abuse of
process:
"The
authorities do not support the proposition that simply instituting or
maintaining a proceeding on behalf of a client which has no or
substantially no prospect of success will invoke the jurisdiction. There
must be something more namely, carrying on that conduct unreasonably"
(at 236).
168The
plaintiff noted that those additional factors were necessary to enliven
the jurisdiction to make a solicitor liable for costs but they were not
required for it to be an abuse of process on the part of a client.
Outstanding costs orders
169Mr
Provera also made submissions in regards to the outstanding costs
orders that have been made against the defendant. He submitted that
there was a distinction to be made between a litigant who has the means
to pay costs orders but fails to do so from an impoverished person who
does not have the means. He referred to the affidavit of the defendant
as evidence that she would be unlikely to ever meet the orders.
170The
plaintiff accepted that the defendant was unable to pay the costs
orders made against her. It was submitted, however, that it was a
relevant factor that she had commenced litigation in circumstances where
she had already incurred costs orders and with the knowledge that she
was unable to meet any potential future costs orders.
Protection of the community
171Mr
Provera accepted that the principal purpose of making an order under s 8
is not to punish a litigant but to protect the community. Mr Provera
pointed to Davies J's decision in Gargan supra where reference was made to the judgment of Perram J:
"Secondly,
the purpose of the order is not to impose condign punishment for past
litigious misdeeds; it serves instead to shield both the public, whose
individual members might be molested by vexatious proceedings, and the
Court itself, whose limited resources and needs must be carefully
managed and protected from the expense, burden and inconvenience of
baseless and repetitious suits." (at [8])
172Mr
Provera submitted that the defendant had only been involved in three
pieces of litigation since 2009, two which are the subject of these
proceedings; Budd v Victims Compensation Corporation Fund [2009] NSWDC 35 and Budd v University of Sydney [2010]
NSWADT 77, and one currently on foot in the District Court (which the
plaintiff is not seeking to have stayed). In the first two proceedings,
it was noted that no costs order was made against the defendant and no
adverse comment was made as to the lack of reasonable prospects.
173In
relation to the matter against the University of Sydney, Mr Provera
also made submissions as to the utility of the defendant's claim. Mr
Provera noted that the defendant had been legally represented. He
submitted that the defendant had pursued what might be seen as a
"legitimate right" and noted that there has been other litigation
concerned with the alleged failure to provide a means of access for
people with a disability.
174Mr
Provera further submitted that there had been no evidence presented
that indicated that the public at large needed to be protected at this
time. He noted that the plaintiff's extensive searches had been unable
to locate any other type of litigation instituted by the defendant aside
from proceedings already identified. The defendant's disputes with the
Department of Housing, the Police and Ms Gardiner had ceased and
therefore, it was submitted, an order under s 8 would not achieve the
principal purpose for which it was intended.
175In submissions in reply, the plaintiff again referred to Davies J in Gargan supra at [8] where his Honour made reference to Perram J's remarks:
"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."
176The
plaintiff submitted that the defendant's affidavit lacked "any insight
into the inappropriateness of her prior litigious history". The
plaintiff also pointed to a number of additional factors to support the
proposition that despite a reduction in the defendant's litigious
activity in the last few years an order under s 8 should still be made.
Those factors can be summarised as follows:
(1)There
has been no meaningful change in relation to the disabilities that she
suffers which have been a substantial influence on both the fact of and
manner in which she conducted her past litigation;
(2)The
fact that there has only been three pieces of litigation instituted
since 2009 is still a substantial amount of litigation and is still
capable of satisfying the definition of "frequent";
(3)There
is no reason to think that any future litigation on the part of the
defendant will be conducted in any way different than in the past;
(4)The
fact that the defendant's disputes with Ms Gardiner and the Police have
ended does not change the fact the litigation by the defendant was not
limited to those two entities and included various government
departments;
(5)An
order under s 8 does not preclude the defendant from commencing proper
litigation; it simply requires that she obtain leave to do so before she
is able to pursue it.
Voluminous material
177Mr
Provera also addressed the plaintiff's claim that in having the
tendency to subject the parties to voluminous material in five
proceedings, the defendant had conducted those proceedings in a way so
as to harass or annoy, cause delay or detriment pursuant to s 6(d).
178Mr
Provera submitted that the applicable test under s 6(d) required a
consideration of the subjective intention of the person involved in the
conduct. This, it was submitted, required the Court to engage in the
exercise of analysing each proceeding, reviewing the material served and
making a determination as to whether the proceedings were conducted in
the way envisaged by s 6(d).
179Mr
Provera further submitted that it must be found that the person meant
to cause delay or detriment, or achieve some other wrongful purpose for a
conclusion that the proceedings were vexatious under s 6(d) and that
there was nothing before the Court which would enable it to form such a
view.
180In
submissions in reply, the plaintiff submitted that a finding pursuant
to s 6(d) did not involve considering the subjective intention on the
part of the defendant and referred to Adamson J's remarks in Attorney General v Chan (2011) NSWSC 1315 where her Honour observed in relation to s 6:
"Furthermore,
the difference between sub-paragraph (b), which connotes a subjective
intention on the part of the Defendant, and subparagraph (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" (at [33]).
Conclusions
Were these vexatious proceedings?
181I
accept the plaintiff's submissions that in examining the defendant's
litigation history a number of themes emerge, principal among them being
that the defendant instituted proceedings on the basis of
unsubstantiated and at times unintelligible pleadings and upon being
unsuccessful, continued to persist with her claims at various appellate
levels despite the observations made by judicial and quasi judicial
officers that they were baseless in dismissing them.
182In
particular, I note the examples where the defendant sought to commence
proceedings in tribunals and courts that lacked the jurisdiction to hear
her claims; whether by reason of the relief she was seeking, the
grounds of appeal she sought to advance or the prerequisites she had not
yet fulfilled.
183Mr
Provera drew attention to a range of matters by way of background to
explain the defendant's litigation conduct, in particular, that the
defendant struggled to obtain legal representation and suffered and
continues to suffer from various disabilities.
184However,
in determining whether the proceedings were vexatious pursuant to s 6, I
accept the plaintiff's submission that the primary consideration for
the Court is the objective prospects of success of the litigation in
question rather than subjective factors.
185Previous decisions have enunciated the accepted principles and I note the plaintiff's reference to the remarks of Davies J in Gargan supra at [8] where his Honour cited the remarks of Perram J:
"[E]ach
of these notions - the want of reasonable grounds, habitual institution
and persistent institution - are to be gauged objectively. But this
does not mean that a litigant's own protestation as to his or her own
mental state is irrelevant; frequently enough, the vexatious are
betrayed out of their own mouths. Rather, the need for objective
determination protects courts from the vexatious litigant who is
genuinely, but misguidedly, persuaded as to the correctness of his or
her own conduct."
186I
am satisfied that the defendant has instituted or conducted proceedings
that are vexatious within the meaning of s 6 of the Act, whether they
be proceedings brought without reasonable grounds or proceedings that
are otherwise an abuse of court processes.
187That
conclusion is reached without having to take into account the
submissions made by the plaintiff that the defendant had a tendency to
subject the parties in court to voluminous material in five particular
proceedings.
Were they instituted or conducted frequently?
188In
a period of about five and a half years, the defendant instituted 25
proceedings in various tribunals and courts, 24 of which were commenced
without reasonable grounds and/or were otherwise an abuse of process.
Several of those proceedings involved attempts to re-litigate matters
that had been dismissed as hopeless or baseless.
189Taking
into account all the circumstances and the context of the whole
litigation history I am satisfied that the proceedings the defendant
instituted have been instituted "frequently". I refer on the remarks of
Davies J in Wilson supra at [126]:
"When
it is considered that the majority of individuals in our community
would never institute legal proceedings, and those that do would
ordinarily have a need to do so once or twice in their lives, commencing
14 separate Supreme Court actions in 11 years can be said to be the
institution of proceedings "frequently".
Should an order be made?
190I
accept the submission by both parties that the primary purpose of an
order pursuant to s 8 is to protect the courts and members of the public
from the expense, burden and inconvenience of vexatious proceedings.
191The
multiplicity of proceedings and the reasons upon which they were found
to be baseless as established in this case provides strong grounds for
making an order pursuant to s 8 in order to fulfil that protective
function.
192I
accept the plaintiff's submission that it is relevant to consider the
fact that the defendant had commenced proceedings with the knowledge
that there were outstanding costs orders against her and that, on the
material in evidence, she will be unable to fulfil any future costs
orders. There was no evidence put by the defendant that she was
endeavouring to finalise outstanding costs orders.
193The
defendant has limited income and it therefore appears that the
likelihood of her being able to pay any further costs orders made
against her is remote.
194I
also accept the plaintiff's submission that a demonstration of the
defendant's insight into her litigation history is a relevant matter in
determining whether to exercise the discretion under s 8. While her
affidavit outlines a number of points in order to provide explanation
for her behaviour, the defendant has not shown that she recognises that
in 24 proceedings she instituted, she never had proper grounds for her
claims as made in those proceedings.
195While
I acknowledge that there has been a decrease in the defendant's
litigious activity since 2009, I accept the plaintiff's submissions that
there are a number of factors which indicate that an order under s 8
should be made. Those include the fact that the defendant has suffered
and continues to suffer from disabilities which have had a substantial
influence on her conduct in litigation, the fact that there is little
indication by the defendant herself that she would conduct future
litigation in a different way to the past and that an order under s 8
does not preclude her from commencing, with the leave of the Court,
proper litigation.
196In
arriving at this conclusion, I have had close regard to the report of
Mr McKell dated 10 April 2013 (Exhibit "A4" in the present proceedings).
197In
particular, I have noted Mr McKell's observations to the fact of some
improvement in the defendant's condition and to the matters stated in
the report (at pp 4-5). I, however, do not consider that the matters to
which he refers can provide the necessary assurance against further
vexatious proceedings by the defendant particularly in the absence of
any direct and cogent evidence from her on that issue.
198I
recognise that making a vexatious proceedings order significantly
curtails the defendant's ability to access the courts and tribunals,
however, for the reasons set out above, I conclude that in the
circumstances it is appropriate and necessary to make such an order.
199As
to the question of costs, it would seem that the costs follow the event
rule should apply (unless the defendant wishes to contest the issue of
costs by written application within 14 days of this Judgment).
200Accordingly, I make the following orders:
(1)Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008,
Pamela Joan Theresa Budd is prohibited from instituting proceedings in
New South Wales other than with leave of an appropriate court under that
Act
(2)The defendant is to pay the plaintiff's costs on the ordinary basis.
**********
Application for Order Under the Court Suppression and Non-Publication Orders Act 2010
201Earlier
this year, following notification to the parties of the date for
delivery of judgment, the defendant, Ms Budd, through my Associate, gave
verbal notice that she wished to have her identity suppressed in
relation to the judgment to be delivered and orders made in the
proceedings.
202The application was, in effect, for an order under the abovementioned Act ("the Court Suppression Act").
203The
delivery of judgment was deferred in order to provide the defendant
with an opportunity to put before the Court any material that she wished
to rely upon in support of her application for an order suppressing her
identity.
204Subsequently
the defendant relied upon a significant volume of material which became
Exhibits A1, A2 and A3 on the application. Included in the material
were a number of medical reports and letters from as early as September
2002 prepared by various medical practitioners in relation to the
defendant's housing issues. The material also included several letters
from community members who had known the defendant in particular in
relation to her housing issues.
205On
5 March 2013, I gave directions in relation to the defendant's
application including a direction for submissions to be lodged in
accordance with the timetable set out in the directions.
206Written
submissions were received on behalf of the Attorney General dated 28
March 2013. When the proceedings were listed on 5 April 2013 the
defendant was provided with an opportunity of addressing the Court by
telephone link, she apparently, being unable to attend court.
207Under s 3 of the Court Suppression Act, a "non-publication order" is defined as meaning an order that prohibits or restricts the publication of information and provides, "but that does not otherwise prohibit or restrict the disclosure of information". The expression "suppression order" means an order that prohibits or restricts the disclosure of information (by publication or otherwise).
208The Court's power under the Act to make orders was considered by the Court of Appeal in Rinehart v Welker [2011]
NSWCA 403. As noted in the decision in that case, the inherent power at
common law of the Court to uphold the integrity of the Court process is
preserved.
209Under
s 6 of the Act, the Court is required in deciding whether to make an
order to take into account the fact that a primary objective is the
administration of justice is to safeguard the public interest in open
justice.
210The power to make orders under the Court Suppression Act are to be found in ss 7 and 8 of the Act.
211Section 7 provides:
"A
court may, by making a suppression order or non-publication order on
grounds permitted by this Act, prohibit or restrict the publication or
other disclosure of:
(a)
information tending to reveal the identity of or otherwise concerning
any party to or witness in proceedings before the court or any person
who is related to or otherwise associated with any party to or witness
in proceedings before the court, or
(b) information that comprises evidence, or information about evidence, given in proceedings before the court."
212Section 8 provides:
"(1) A court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice,
(b)
the order is necessary to prevent prejudice to the interests of the
Commonwealth or a State or Territory in relation to national or
international security,
(c) the order is necessary to protect the safety of any person,
(d)
the order is necessary to avoid causing undue distress or embarrassment
to a party to or witness in criminal proceedings involving an offence
of a sexual nature (including an act of indecency),
(e)
it is otherwise necessary in the public interest for the order to be
made and that public interest significantly outweighs the public
interest in open justice.
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made."
213It
is clear that the onus of satisfying the Court that such an order
should be made rests upon the party seeking the order. This has also
been the position under the general law.
214In
relation to the bundles of materials sent by the defendant to my
Associate between 5 and 15 March 2013, there were two matters raised on
behalf of the Attorney General in relation to them. First they contain
no contention as to the legal principles to be applied in an application
for an order under the Court Suppression Act or
under the general law. Secondly, the emails contained matters that went
well beyond the permissible scope of submissions permitted under the
directions that had been given.
215As
observed in the written submissions for the Attorney General at [20],
the thrust of the defendant's contentions appears to be, if her name
were to be published in either the title of the case, the body of the
judgment or in formal orders, her reputation would be adversely
affected. Second, the contention that if she were identified in the name
of the case, or in the reasons or formal orders then this may in some
way adversely affect her physical and/or psychological wellbeing.
216These
contentions were reiterated by the defendant in the various materials
she sent to my Associate between 16 March 2013 and 11 April 2013, now
exhibits on the application (Exhibits A1, A2 and A3). As submitted by
the Attorney General in relation to earlier material, this subsequent
material also raised matters that went beyond the scope of submissions
permitted under the relevant directions in that it sought to raise
issues in relation to the substantive application by the Attorney
General.
217It
was observed that as at the date of the written submissions for the
Attorney General no expert evidence had been provided to substantiate or
support the contention that the identification of the defendant's name
in the case name, reasons or formal orders, would lead to any form of
physical and/or psychological illness.
218However,
following the last hearing date, there was provided to my Associate a
copy of a report by a psychologist, Mr Grant McKell, dated 10 April
2013, which I have since marked as Exhibit A4.
219In Mr McKell's report there were a number of matters raised including the following:
(i)
His initial contact with the defendant was by telephone on 4 April
2013. Arrangements were made to meet her at her residence on 9 April
2013.
(ii) The report contained a detailed account of what was termed
"Relevant Background Information".
This included a number of reports from various health and mental health
practitioners. Those reports were said to refer to the defendant's
behaviours that were consistent with agoraphobia and social anxiety and
were said to be within the severe range.
220In the assessment of "current functioning"
Mr McKell observed that the defendant expressed great concern about her
name being publicly listed in any findings that the Court may determine
arising from the present proceedings.
221Mr
McKell expressed his agreement with his colleagues and other medical
personnel that the defendant continued to present with what he termed
Panic Disorder with Agoraphobia (DSM-IVTR 300.21) and Social Phobia
(DSM-IV-TR 300.23). He observed that it was clear that the defendant was
extremely anxious about the outcome of the present proceedings, in
particular about her name being listed publicly as a vexatious litigant.
He expressed the view that if that outcome was realised:
"...
it would present a real and enduring obstacle to Ms Budd's prognosis
and her ability to engage fruitfully with therapy to bring about
improvement in her life and to once again become an active and
contributing member of the community." (Report p 4)
222In his report, Mr McKell included a "Recommendation" that the defendant's name be suppressed in any findings under s 8(1)(c) of the Court Suppression Act as it is necessary to protect her safety in terms of her mental health.
223He
put forward a number of matters which he considered were in the public
interest in terms of preserving the defendant's capacity and opportunity
to recover from what he described as her "mental illness".
224It
is important, in relation to the application for a suppression order to
take into account both the statutory scheme and the orders permitted to
be made under the Vexatious Proceedings Act 2008.
225The Court may make an order under s 8 of the Vexatious Proceedings Act if the Court is satisfied of the matters specified in s 8(1).
226The court under s 17 of the Vexatious Proceedings Act
has specified powers for limiting disclosure of specific matters
referred to in that section. Those provisions, however, are not relevant
to the present application.
227In
the written submissions of the Attorney General it was submitted that
the legislative provisions give voice to a policy to the effect that the
making of a vexatious proceedings order is to be attended by a certain
degree of publicity: at [29].
228The reasons for the publicity, it was submitted, are to be found in the relevant provisions of the Vexatious Proceedings Act including in particular ss 6 and 8 and the provisions of Part 3 of the Act.
229The
provisions for publication of orders under s 8(1) to which I have
earlier referred are designed for protective purposes, namely, that
vexatious proceedings orders are made to protect the scarce judicial
resources of the State from abuse, as well as protecting those who may
be involved in vexatious litigation in which another participant
conducts him or herself vexatiously: Attorney General's Written
Submissions at [31].
230The
submission for the Attorney General was that given the nature of the
present proceedings, there is no basis upon which such an order can be
made under the Court Suppression Act. I accept that submission.
231It is clear that under s 11, there is a regime whereby, inter alia, a vexatious proceedings order (a "notifiable order")
is dealt with, in particular by the appropriate Registrar of an
authorised Court arranging for a copy of the orders to be published in
the Gazette within 14 days after the order is made and having it
recorded in a publicly available register kept for the purposes of the
Act: s 11(2). In other words, public notification of an order is
necessarily a part of the statutory scheme.
232I
have taken into account the material relied upon by the defendant in
support of the application made to suppress her identity, in particular,
the report of Mr McKell to which I have referred. The position at law,
however, is that there is no power to grant the relief sought unless an
order is "necessary" in the particular respects specified in s 8(1) of the Court Suppression Act. I do not consider that s 8(1)(c) is available. There is no issue of "safety"
in the present case as that term is employed in the sub-section. The
evidence in any event does not support a suppression order.
233I
do not consider that the circumstances relied upon by the defendant in
support of the application for such an order could be classed as
exceptional circumstances that would outweigh the public interest in the
proper administration of justice or as falling within s 8(1). There is a
strong public interest that the legislative scheme established under
the Vexatious Proceedings Act, including the regime for notification of vexatious proceedings orders in s 11 of that Act be given effect.
234Accordingly, the application for suppression of the defendant's identity in the judgment or orders made is refused.
**********
Schedule
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.
