Cullu v Nielsen

[2022] NSWSC 1692

Supreme Court

New South Wales

Medium Neutral Citation:

Cullu v Nielsen [2022] NSWSC 1692

Hearing dates:

7 December 2022

Date of orders:

7 December 2022

Decision date:

07 December 2022

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

(1) The proceedings be dismissed against both defendants pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005.

(2)   The plaintiff pay the first defendant’s costs.

Catchwords:

SUMMARY DISMISSAL – no question of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 13.4

Category:

Principal judgment

Parties:

Yasin Cullu (Plaintiff)
Lisa Nielsen (First Defendant)
Claudia Norris (Second Defendant)

Representation:

Counsel:
Mr Cullu, in person (Plaintiff)
Ms J Davidson (First Defendant)
Ms C Norris, in person (Second Defendant)

Solicitors:
Unrepresented (Plaintiff)
Crown Solicitors Office (First Defendant)
Unrepresented (Second Defendant)

File Number(s):

2022/93718

JUDGMENT

1. By notice of motion filed 10 June 2022 the first defendant sought an order pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 that the proceedings be dismissed and that the plaintiff pay the first defendant’s costs.

2. The plaintiff has not appeared. The first defendant’s motion was listed for directions in this Court on 10 May 2022 and 17 June 2022. On 17 June 2022, the plaintiff appeared and the matter was listed for hearing today. Directions were made for the service of material and the plaintiff engaged with those directions. An email was tendered indicating that the plaintiff had recently been reminded of today’s hearing date. His name has been called three times outside the court. Included with his document entitled “Amendments summons” is a mobile phone number. I am advised that during a break the solicitor for the first defendant attempted to contact the plaintiff on that phone but was unsuccessful.

3. In these circumstances, given that the plaintiff has initiated these proceedings and, for the reasons I will explain, they are wholly deficient, I consider it is appropriate to continue to hear the motion and not put either of the defendants to any further angst from these proceedings continuing.

4. The document entitled “Amendments summons” names two defendants, Ms Lisa Nielsen and Ms Claudia Norris. An affidavit sworn on behalf of the first defendant reveals that in 2010 the plaintiff was convicted of two charges of contravening a prohibition or restriction in an apprehended violence order and was sentenced to two Community Service Orders. It seems that for a period he was under the supervision of Community Corrections. The first defendant, Ms Nielsen, was an administrative assistant employed within the office of Community Corrections. As part of that process, the plaintiff commenced work doing a community work placement at St Vincent de Paul. The second defendant is the manager of the store where he was placed. Subsequent to that, an application was made to revoke his Community Service Order, which was successful, and he served a term of imprisonment.

5. In April 2022, he filed a summons which named Ms Nielsen as the defendant. The only relief claimed was the handwritten words “Criminal law.” In May 2022, he filed the document that I have already referred to, namely, the “Amendments summons” which named Ms Nielsen and Ms Norris as defendants. The only relief claimed is “Proceeds of crime list sequence 1900” and “Other Common Law Division case types.”

6. He has filed various documents that are said to be affidavits. They do not really appear to answer that description. They are generally nonsensical. In the process of the preparation of the court book it seems that he requested the first defendant include material including a typed document complaining about the circumstances in which he worked at St Vincent de Paul as well as material from the World Health Organisation addressing sustainable development, and various United Nations treaties.

7. Rule 13.4(1) provides:

“If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings--

(a)   the proceedings are frivolous or vexatious, or

(b)   no reasonable cause of action is disclosed, or

(c)   the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.”

8. Both the summons and the document entitled “Amendments summons” are wholly defective. They do not identify any proper claim for relief or any basis for a cause of action. A review of the material that has since been filed by the plaintiff is wholly consistent with the conclusion that the proceedings appear to be frivolous or vexatious and do not disclose a reasonable cause of action. In short, the plaintiff has filed utterly nonsensical documents that do not make any proper legal claim. They must be summarily dismissed.

9. I raised with counsel for the first defendant the possibility that the Court might also order that any further proceedings that might be filed by the plaintiff against either defendant not be commenced without the leave of the Court. However, in the absence of notification being given to the plaintiff of that order, counsel was reticent in suggesting the Court make that order. I think that caution was wise.

10. Accordingly, the Court orders as follows:

1. The proceedings be dismissed against both defendants pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005.

2. The plaintiff pay the first defendant’s costs.

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Decision last updated: 09 December 2022