Chan v Sellwood; Chan v Calvert - [2009] NSWSC 1335

CITATION: Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335

HEARING DATE(S): 2 October 2009

JUDGMENT DATE :
9 December 2009

JUDGMENT OF: Davies J

DECISION: (1) In proceedings 20519/2008: (a) Judgment for the Defendant on the causes of action contained in paragraphs 46-55, 170-171, 172-175 and 176-180 of the Amended Statement of Claim filed 24 December 2008. (b) The remainder of the Amended Statement of Claim be struck out pursuant to Rule 14.28 UCPR. (c) The Plaintiff is to pay 90% of the Defendant’s costs of the proceedings.
(2) In proceedings 20538/2008: (a) Judgment for the Defendant on the causes of action contained in paragraphs 123-137, 138-139, 140-143 and 144-148 of the Amended Statement of Claim filed 2 January 2009. (b) The remainder of the Amended Statement of Claim be struck out pursuant to Rule 14.28 UCPR. (c) The Plaintiff is to pay 90% of the Defendant’s costs of the proceedings.
(3) Proceedings 20519/2008 and 20538/2008 be consolidated pursuant to Rule 28.5 UCPR on the following basis: (a) The Defendant Glennis Sellwood in proceedings 20519/2008 become the First Defendant in those proceedings, (b) The Defendant Marian Calvert in proceedings 20538/2008 become the Second Defendant in proceedings 20519/2008, (c) Proceedings 20538/2008 be dismissed in their entirety.
(4) Proceedings 20519/2008 be stood into the Defamation List on 14 December 2009 to enable consideration for the granting of leave to the Plaintiff to file a further Amended Statement of Claim in a form to be prepared by him for that purpose.

CATCHWORDS: PROCEDURE - judgments and orders - summary dismissal - strike out of pleading - claim by former student at TAFE against teachers and supervisors - claim based on breach of TAFE policies - tort of privacy - misfeasance in public office.

LEGISLATION CITED: Privacy and Personal Information Protection Act 1998
Trade Practices Act 1974 (Cth)

CASES CITED: ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Chapel Road v ASIC [2006] NSWSC 1014
Clark v University of Lincolnshire and Cumberside [2000] 1 WLR 1988
Gee v Burger [2009] NSWSC 149
Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Griffith University v Tang (2005) 221 CLR 99
Grosse v Purvis (2003) Aus Torts Reports 81-706
Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Kalaba v The Commonwealth [2004] FCA 763
Leerdam v Noori [2009] NSWCA 90
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Rippon v Chilcotin (2001) 53 NSWLR 198
Sullivan v Moody (2001) 207 CLR 562
Tame v New South Wales (2002) 211 CLR 317
Tampion v Anderson [1973] VR 715
Walsh v University of Technology, Sydney [2007] FCA 880

TEXTS CITED: Young, Declaratory Orders, 1984, 2nd Ed, Butterworths

PARTIES:
MATTER 20519/08
Yau Hang Chan (Plaintiff)
Glennis Sellwood (Defendant)
MATTER 20538/08
Yau Hang Chan (Plaintiff)
Marian Calvert (Defendant)

FILE NUMBER(S): SC 20519/08 & SC 20538/08

COUNSEL: In person (Plaintiff)
S Golledge (Defendants)

SOLICITORS: Moray & Agnew (Defendants)

- 1…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 1335
Decision Date: 9 December 2009

CaseChat Overview and Summary

The case of Chan v Sellwood and Chan v Calvert involved the plaintiff, Chan, who sought to bring a claim against her former teachers and supervisors at TAFE for alleged breaches of institutional policies and the tort of privacy, as well as misfeasance in public office. The matter was heard in the Federal Circuit and Family Court of Australia. The defendants sought to have the claims struck out, arguing that they were without merit and an abuse of process.

The central legal issues before the court were whether Chan's claims were legally tenable and whether the proceedings constituted an abuse of the court's process. The court was required to determine whether the claims disclosed a reasonable cause of action and if the proceedings should be dismissed on the basis of futility or for being vexatious. The court considered the statutory criteria for summary dismissal and the common law principles regarding abuse of process, including whether the claims were frivolous or an abuse of the court’s process.

The court found that Chan's claims were not legally tenable as they did not disclose a reasonable cause of action. The court held that the claims were speculative and lacked factual basis, as they were premised on assumptions that were not supported by the evidence. Furthermore, the court concluded that the claims constituted an abuse of process due to their speculative nature and the lack of a genuine dispute warranting judicial resolution. Consequently, the court ordered that the claims be struck out and dismissed the proceedings as an abuse of process.

In addition to the dismissal of the claims, the court made orders for costs, directing that the defendants' costs be paid by Chan in accordance with the court's assessment of the proceedings as vexatious and without merit. This decision underscores the importance of ensuring that legal claims are based on solid evidence and a legitimate dispute, to avoid proceedings that unnecessarily burden the court system.

Orders