Application of Miguela Alvarez Macatangay

[2018] NSWSC 42

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Application of Miguela Alvarez Macatangay [2018] NSWSC 42
Hearing dates:	On the papers
Date of orders:	02 February 2018
Decision date:	02 February 2018
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	Application for leave under the Vexatious Proceedings Act 2008 (NSW) to commence proceedings refused.
Catchwords:	CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings
Legislation Cited:	Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Craig Andrew Betts – Application under Vexatious Proceedings Act 2008 [2013] NSWSC 1121 Macatangay v State of New South Wales [2007] NSWSC 57 Macatangay v State of New South Wales (NSWCA, unreported, 8 November 2007) Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Macatangay v State of New South Wales (NSWSC, RS Hulme J, unreported, 20 May 2010) Macatangay v State of New South Wales [2012] NSWCA 108 Macatangay v State of New South Wales [2012] NSWCA 305 Macatangay v State of New South Wales [2012] NSWCA 374
Category:	Procedural and other rulings
Parties:	Miguela Alvarez Macatangay
Representation:	Applicant in person
File Number(s):	17/300450
Publication restriction:	Nil

Judgment

1. On 15 November 2012 the Court of Appeal ordered pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW) that proceedings Nos 20144 and 269316 of 2005, which had been instituted by the applicant in the Common Law Division, be stayed and that she be prohibited from instituting any further proceedings in New South Wales relating to any of the claims or complaints made by her in those matters: Macatangay v State of New South Wales [2012] NSWCA 374.

2. The applicant now applies for leave pursuant to s 14(2) of the Act to institute new proceedings against the State of New South Wales. She has not supplied a draft of proposed originating process but from her written submissions in support of the application, filed on 5 and 17 October 2017, it is possible to ascertain the nature of the proceeding she now seeks leave to commence. To understand this it is necessary to refer to the history of earlier litigation.

3. The applicant was employed by the New South Wales Department of Education and Training from July 1999. On 4 September 2002 she commenced proceedings (No 5099/02) in the Industrial Relations Commission (IRC) for unfair dismissal on the basis that she was under threat of dismissal. The history of the IRC proceedings is set out in a judgment of Grove J handed down in a subsequent proceeding in this court: Macatangay v State of New South Wales [2007] NSWSC 57 at [9] – [17]. Shortly stated, on 25 June 2004 Commissioner Macdonald found that the applicant’s unfair dismissal claim had been settled following negotiations in March 2003 and he dismissed the claim accordingly. The applicant disputed that the claim had been settled. Her appeal to a full bench of the IRC was dismissed on 28 February 2005.

Common Law Division proceedings No 20144 of 2005

4. The applicant then brought proceedings against the State of New South Wales in the Common Law Division of this Court (No 20144 of 2005) claiming damages in negligence arising out of her employment and its termination. In the judgment cited at [3] Grove J summarily dismissed those proceedings on the ground that the applicant was seeking to relitigate what had been finalised by her settlement of the IRC proceedings (see Grove J’s reasons at [27]).

5. On 8 November 2007 the Court of Appeal refused leave to appeal Grove J’s decision: Macatangay v State of New South Wales (NSWCA, unreported, 8 November 2007). The applicant thereafter took further procedural steps to renew in the Court of Appeal her endeavour to have Grove J’s summary dismissal of her proceedings set aside. Those further steps are outlined in a subsequent judgement of the Court of Appeal: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [2] – [9]. They culminated in the Court of Appeal considering whether a renewed application for leave to appeal Grove J’s decision ought to be allowed. In Macatangay v State of New South Wales (No 2) at [18] – [34] the Court expressed its reasons for refusing leave on the renewed application. That decision was handed down on 4 September 2009.

Common Law Division proceedings No 269316 of 2005

6. In proceedings No 269316 of 2005 in the Common Law Division the applicant filed a statement of claim against the State of New South Wales claiming relief in relation to the same subject matter. On 14 May 2010 she filed a notice of motion in that proceeding by which she sought an order that proceedings No 20144 of 2005 be “reopened”. RS Hulme J dismissed the notice of motion with costs: Macatangay v State of New South Wales (NSWSC, RS Hulme J, unreported, 20 May 2010).

7. On 16 June 2010 the applicant filed in the Court of Appeal a summons for leave to appeal RS Hulme J’s decision. The Court of Appeal dismissed the summons for leave as an abuse of process: Macatangay v State of New South Wales (NSWCA, Handley and Sackville AJJA, unreported, 20 October 2010). Handley AJA said:

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.

8. Notwithstanding this the applicant again sought to reopen Grove J’s decision by repeated and unsuccessful further applications to the Court of Appeal. See Macatangay v State of New South Wales [2012] NSWCA 108 and Macatangay v State of New South Wales [2012] NSWCA 305.

The proceeding now proposed to be commenced

9. In her written submissions filed 5 October 2017 in support of the present application the applicant describes the proposed proceedings for which she now seeks leave under the Vexatious Proceedings Act in these terms:

that of setting aside those decisions where the orders are made on the basis of the information that there is settlement or deed of release of the IRC Matter IRC 5099/02, setting aside the judgment that made the order that the Further Amended Statement of Claim [in Common Law Division proceeding No 20144 of 2005] is an abuse of the process of the court, and as well under section 9 of the Act set aside the vexatious proceedings order.

10. In her written submissions filed 27 October 2017 at paragraph 2 the applicant has described the proceedings she proposes to bring in more detail but substantially to the same effect as the summary quoted in [9] above. The present application is little different from another that she made under the Vexatious Proceedings Act by summons filed 4 April 2017. That was dismissed by Lonergan J on 18 August 2017: Application of Miguela Macatangay [2017] NSWSC 1047.

Determination

11. By force of s 15 of the Vexatious Proceedings Act the application for leave to institute proceedings “must” be dismissed if the proposed proceedings are or would be vexatious, or if there is no prima facie ground for them. Vexatious proceedings are defined in s 6 as including proceedings that are an abuse of the process of a court or that are instituted or pursued without reasonable ground.

12. The proceedings the applicant wishes to institute would be an abuse of process because they would seek to re-agitate an issue which has been finally determined. Namely, the correctness of Grove J’s summary dismissal of proceedings No 20144 of 2005. There is no reasonable ground for instituting or pursuing such proceedings in view of the exhaustion, which has already occurred, of all reasonable avenues for challenging the decisions of the Industrial Relations Commission and of Grove J.

13. Section 16 of the Vexatious Proceedings Act provides that before granting an application such as the present the Court should require the applicant to give notice of the application and a copy of the supporting affidavit to each “relevant person” (as defined in subs (5)). Further, in such a case it is required that the Court should accord the applicant and each relevant person an opportunity to be heard. On the present application I am able to determine on the papers that the application does not pass the threshold test of s 15 and no purpose would be served by requiring that notice be given to relevant persons or that a hearing be conducted: Craig Andrew Betts – Application under Vexatious Proceedings Act 2008 [2013] NSWSC 1121 at [10]. The application for leave fails upon the applicant’s submissions taken at their highest.

14. The applicant’s affidavit sworn 3 October 2017 and her written submissions show no basis upon which it would be appropriate to vary or set aside the vexatious proceedings order made by the Court of Appeal on 15 November 2012: see [1] above.

15. Accordingly, the application is refused.

**********

Amendments

01 August 2018 - Para [14] change 5 November to read 15 November

Decision last updated: 01 August 2018