Golden v Anderson

[2023] NSWSC 97

Supreme Court

New South Wales

Medium Neutral Citation:

Golden v Anderson & Ors [2023] NSWSC 97

Hearing dates:

6 February 2023

Date of orders:

6 February 2023

Decision date:

06 February 2023

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) The proceedings are dismissed.

(2) I direct that within 7 days, the defendants file their written submissions in relation to costs and any ancillary orders and give notice to the plaintiff of what orders they are seeking.

(3) The plaintiff is to file its written submissions 7 days after receipt of the defendants’ submissions on the question of costs and any ancillary orders.

(4) The matter is listed on a date and time to be fixed for the purpose of hearing submissions as to costs.

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process – defective pleadings – whether pleadings disclose a reasonable cause of action TORT – whether allegations of fact capable of supporting the elements of the tort

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 13.4, 14.28

Cases Cited:

General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125

Golden v Koffel [2021] NSWSC 739

Golden v Littleproud [2019] NSWSC 120

Golden v V’landys [2015] NSWSC 1709

Golden v V’landys [2016] NSWCA 300

Golden v V’landys (No 2) [2016] NSWCA 350

Golden v V’landys [2019] NSWSC 1362

Golden v V’landys [2020] NSWCA 120

Magill v Magill [2006] HCA 51

Texts Cited:

None

Category:

Principal judgment

Parties:

Joseph Paul Golden (Plaintiff)
Kevin John Anderson (First Defendant)
Dominic Perrottet (Second Defendant)
Chris Gulaptis (Third Defendant)
Murray Watt (Fourth Defendant)
David Littleproud (Fifth Defendant)
Barnaby Joyce (Sixth Defendant)
Kevin Hogan (Seventh Defendant)

Representation:

Counsel:
S Chordia (First and Second Defendants)
S Nixon SC with L Thomas (Fourth, Fifth and Sixth Defendants)

Solicitors:
Plaintiff (Self-represented)
Crown Solicitors Office (First and Second Defendants)
Ashurst Australia (Fourth, Fifth and Sixth Defendants)

File Number(s):

2022/189359

Publication restriction:

None

REVISED EX TEMPORE Judgment

1. Before the Court are two motions, both filed on 14 September 2022, being:

1. a motion filed on behalf of the first and second defendants seeking orders that the proceedings be summarily dismissed or, in the alternative, that the amended statement of claim filed 27 July 2022 be struck out, as well as ancillary orders; and

2. a similar motion filed on behalf of the fourth, fifth and sixth defendants also seeking orders that the proceedings be dismissed or, in the alternative, struck out and ancillary orders.

2. Ms Chordia appears on behalf of the first and second defendants. Mr Nixon SC appears with Ms Thomas for the fourth, fifth and sixth defendants. Mr Golden again appears unrepresented. There is no appearance for the third or seventh defendants, albeit the other defendants are seeking orders that the proceedings as a whole be dismissed.

3. By way of an amended statement of claim filed on 27 July 2022, the plaintiff seeks orders against seven defendants in the nature of declarations, damages and costs. The proceedings arise out of, and in substance relate to, the plaintiff’s allegations of misconduct, fraudulent conduct, misrepresentation and other serious allegations against Racing NSW and various of its officers and directors (including Peter V’landys, the general counsel, and other persons associated with Racing NSW back in the late 2000s) regarding Racing NSW’s administration of the Commercial Horse Assistance Payment Scheme (CHAPS).

4. These proceedings are the eighth proceedings pursued by the plaintiff arising out of essentially the same subject matter. I set out a table of those earlier proceedings and the results.

Matter	Date	Decision
1.	Golden v V’landys [2015] NSWSC 1709	17 November 2015	1. Judgment for the defendants.   2. Unless any party makes an application for a different order in writing to my Associate within seven days, order the plaintiff to pay the defendants’ costs of the proceedings.
2.	Golden v V’landys [2016] NSWCA 300	4 November 2016	(1) leave to appeal granted;   (2) the affidavit of Mr Golden sworn 6 September 2016 is admitted as evidence on this appeal pursuant to s 75A of the Supreme Court Act;   (3) further amended notice of appeal to be filed within 7 days of the date of publication of this judgment;   (4) ground 4 of the further amended notice of appeal is upheld;   (5) all remaining grounds of the further amended notice of appeal are dismissed;   (6) set aside orders of Adamson J of 17 November 2015 and in lieu thereof order:   (a) the decision of the first respondent dated 24 June 2011 to warn off the appellant from all race tracks controlled by the second respondent is quashed;   (b) the first and second respondents to pay 75 per cent of the appellant’s costs of the appeal as agreed or assessed;   (c) within 7 days of the publication of this judgment the appellant to file submissions about the appropriate order for costs before the primary judge;   (d) within 14 days of the publication of this judgment the first and second respondents to file submissions about the appropriate order for costs before the primary judge;   (e) within 21 days of the publication of this judgment the appellant file submissions in reply about the appropriate order for costs before the primary judge.
3.	Golden v V’landys (No 2) [2016] NSWCA 350	13 December 2016	(1) The respondents pay 40 per cent of the appellant’s costs of the trial as agreed or assessed.   (2) The motion dated 21 November 2016 filed by Mr V’landys be dismissed as incompetent.
4.	Golden v Littleproud [2019] NSWSC 120	22 February 2019	The Court orders that: (1) These proceedings are dismissed. (2) The plaintiff is to pay the defendant’s costs on an ordinary basis.
5.	Golden v V’landys [2019] NSWSC 1362	16 October 2019	1. Strike out the statement of claim filed 28 August 2018. 2. Dismiss the proceedings with costs.
6.	Golden v V’landys [2020] NSWCA 120	26 June 2020	Summons seeking leave to appeal dismissed with costs.
7.	Golden v Koffel [2021] NSWSC 739	18 June 2021	The proceedings are dismissed. The plaintiff to pay the defendants’ costs of the proceedings, including the costs of the motion.

5. The plaintiff has been unsuccessful in those earlier proceedings. He now seeks to agitate essentially the same issues (perhaps with some variation) against the seven defendants, all of whom are or were members of State or Federal Parliament.

6. The first defendant is the Member for Tamworth and was appointed NSW Minister for Hospitality and Racing on 21 December 2021. Prior thereto, he had held no portfolio relevant to the plaintiff’s complaint.

7. The second defendant is the Member for Epping and is currently the NSW Premier. He has never held a specialist ministerial portfolio relating to Racing NSW.

8. The third defendant is the Member for Clarence. He has never held a portfolio connected with racing.

9. The fourth defendant was elected to the Federal Senate in 2016, was a Cabinet minister, and has held the Ministry of Agriculture, Fisheries and Forestry and Ministry of Emergency Management since 1 June 2022. He was a Cabinet minister between 2017 and May 2022 holding various ministries.

10. The fifth defendant has been in Federal Parliament since September 2013. He was formerly head of the National Party and Deputy Prime Minister and has held various Cabinet positions.

11. The sixth defendant was elected to the House of Representatives in 2013 and remains in Federal Parliament; he has held various Parliamentary positions, including assistant to the Deputy Prime Minister from February 2022.

12. The case against each of these defendants is said to be set out in the amended statement of claim. The amended statement of claim is a 46-page document comprising 101 paragraphs. Very few of the paragraphs mention the defendants. As set out in the section headed “Relief Claimed,” the plaintiff seeks 47 declarations. Only a small number of those suggested declarations relate to the seven defendants.

13. The plaintiff has represented himself in this Court on a number of applications since he was unsuccessful in the primary application, which he pursued through his solicitors.

14. He has again provided the Court with extensive documentation relating to what he alleges was the fraudulent misconduct of Racing NSW in the administration of the CHAPS scheme. The plaintiff also relies on a number of affidavits, being his own affidavits of 12 August 2022, 22 November 2022, 21 September 2022, and 10 January 2023.

15. In support of their motion, the first and second defendants read an affidavit of Eloise Kneebone, solicitor of the NSW Crown Solicitor’s Office, dated 14 September 2022.

16. In support of their motion, the fourth, fifth and sixth defendants read an affidavit of John Peter Pavlakis, their solicitor, dated 12 September 2022.

17. The defendants seek essentially the same orders on the basis that:

1. the proceedings are an abuse of process;

2. the statement of claim discloses no reasonable or arguable cause of action;

3. the plaintiff makes scandalous allegations which are without foundation; and

4. the statement of claim is unintelligible, does not plead material facts as against the defendants and does not disclose any basis on which, even if the allegations are accepted, the plaintiff could succeed against the defendants.

18. In addition to his affidavits, the plaintiff relied on two volumes of material which, as I raised with the plaintiff, relate to the administration of the CHAPS scheme back in 2007 and 2008.

19. I heard a similar application in earlier proceedings being pursued by the plaintiff; that is, his proceedings against his former solicitors for professional negligence.

20. In my judgment,[1] I set out the background of the plaintiff’s grievances and I will adopt what I said in respect of the background for the purpose of this judgment, as follows:

Background

5. The plaintiff is or was an accountant. In the mid-2000s he became involved in the racing industry and became a professional horse trainer and owner, as well as pursuing other interests. As is well known, in approximately 2007 the equine influenza virus affected a large number of horses in Australia. The Commonwealth Government established the Commercial Horse Assistance Payment Scheme (CHAPS) for the purposes of providing some form of compensation to both horse trainers and horse owners.

6. In the late 2000s, that is in and around 2009/2010, the plaintiff raised a number of concerns about the way in which the CHAPS scheme was being administered by Racing New South Wales. On 10 May 2011 the plaintiff wrote a letter addressed to the general manager at Racing New South Wales making allegations about the conduct of Racing New South Wales and the way in which it had allegedly interfered in his racing programme. Subsequent to the sending of that letter, the plaintiff received what is termed as a show cause letter from Racing New South Wales informing him that Racing New South Wales would be conducting a hearing as to his conduct. The show cause letter was issued by the chief executive officer of Racing New South Wales, Mr Peter V’Landys.

7. Suffice to say that the plaintiff fell into dispute with Racing New South Wales, and in particular Mr V’Landys, both in relation to the way in which the CHAPS scheme had been administered, and, further, the treatment of the plaintiff by Racing New South Wales and in particular Mr V’Landys. The plaintiff made numerous complaints and allegations relating to corrupt conduct.

8. A show cause hearing was held on 31 May 2011, at which time a decision was made to suspend the plaintiff’s licence for a period of six months. A second show cause hearing was heard on 24 June 2011, at which time a decision was made to warn off the plaintiff from all race tracks under the control of Racing New South Wales indefinitely.

1. Golden v Koffel [2021] NSWSC 739.

21. There can be no doubt that the plaintiff has a long-held grievance against those responsible for the administration of the CHAPS scheme, and indeed those responsible for the fact that his trainer’s licence was suspended and he was warned off all horse racing tracks under the control of Racing NSW. That is apparent from each of the cases which he has thus far pursued. On my reading of each of the earlier judgments, the plaintiff has sought to agitate very similar issues, focusing on what he alleges was the misconduct of those persons to whom he attributes the mismanagement of the CHAPS scheme and what has happened to him in terms of his career in the racing industry. Even though he is seeking orders against current members of State and Federal Parliament in these proceedings, the focus of his case and submissions is, once again, the conduct of certain persons 15 years ago.

22. The allegations made by the plaintiff are essentially the same allegations he has made in his earlier cases. It is thus important for the purposes of the motions to understand why the plaintiff maintains that he has a case against each of the current defendants.

23. The plaintiff provided extensive oral submissions as to the cause of action he is pursuing. I asked him to identify his cause of action. He said that he is pursuing a cause of action in deceit against each of the defendants. He said that each of the defendants were members of Parliament sworn in to protect taxpayers and to do the right thing. He said all of them were part of some sort of “protection racket” in respect of their positions. On being pressed, the plaintiff said that he was also pursuing a negligence action and an action that each of the defendants had failed to provide documents that he had sought.

24. I also asked the plaintiff what he really wanted from these proceedings. He said that what he really wants is for the Court to refer certain persons to the Office of the Director of Public Prosecutions; secondly, he wants his trainer’s licence back; and, thirdly, he seeks compensation for his loss of income in the sum of $10 million.

25. It is apparent from a review of all the earlier judgments that that is what the plaintiff has always wanted and what he continues to seek.

26. I also asked the plaintiff what (to his mind) each of the defendants had done or failed to do. He said that all of them had failed to take up his request to investigate or commission inquiries into the conduct of Racing NSW and those other persons about whom he has been complaining for the past 10 years or so. As I understand his case, it is a case in deceit on the basis that the defendants failed to investigate his allegations or things that happened quite some years before they were either in Parliament or had any ministerial responsibility in respect of Racing NSW.

27. As I have said in an earlier case involving the plaintiff,[2] the Court should have regard to the fact that unrepresented plaintiffs generally do not have legal training and may not understand the niceties of pleadings. However, it is still incumbent upon the plaintiff to plead facts and provide sufficient detail in the statement of claim that will enable the defendants to understand the case they have to meet.

    2. Golden v Koffel [2021] NSWSC 739 at [32].

28. Although there is some general reference to the defendants as a whole earlier in the statement of claim, it is not until paragraph 53 that the plaintiff introduces the defendants as parties against whom he is seeking orders. That is because, similar to his earlier cases, the first 52 paragraphs focus on the conduct of Mr V’landys and those other persons against whom the plaintiff has grievances.

29. As set out in paragraph 53 of the amended statement of claim (page 34, under the heading “Pleadings and Particulars”) and following, the plaintiff pleads that the defendants (naming them individually in various paragraphs) failed to investigate CHAPS frauds and embezzlement or engage with compensation or the plaintiff’s licence reissue. Further, the plaintiff seeks a raft of declarations, none of which seem on the face of the pleadings to have anything to do with the current seven defendants. It is only commencing from paragraph 44 (page 9, under the heading “Relief Claimed”) that the plaintiff seeks orders against the current seven defendants as follows:

44. A relief & order that deceit, intimidation, negligence, embezzlement, discrimination & or other torts against plaintiff was exercised by defendants by not exposing RN & trainer McLeod CHAPS facilitated fraud covered up & or recovering RN $110m to $137m embezzled misappropriated CHAPS funds.

45. A declaration RN & trainer McLeod fraud cover up with RN $137m CHAPS theft in my opinion does not satisfy NSW Equine Influenza $25m, 2007 cancelled race meetings over three months & $110m to $137m is recoverable including 15 years justice interest, plaintiff losses for accountability available & intentionally avoided.

46. A declaration State & Commonwealth Minister defendants listed today, & others are engaged in codes of silence & deceit to protect one another & secure post Government retirement positions as Directors of Boards as Racing NSW.

47. A declaration all defendants tacitly supported corruption.

48. Damages $10m including exemplary damages.

The Nature of the Orders Sought

30. As is well-known, the Court will only exercise its power to dismiss proceedings in circumstances in which it considers that the action pursued by the plaintiff is so obviously untenable that it cannot succeed (see General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 [129]-[130]). Put another way, it might be said that the action is manifestly groundless or so manifestly flawed that it does not permit of argument.

31. In the event that I am not satisfied that the proceedings should be dismissed in accordance with r 13.4 UCPR, the defendants seek orders that the statement of claim be struck out pursuant to r 14.28(1) UCPR. Further, the fourth, fifth and sixth defendants seek orders that they be removed from the proceedings pursuant to r 6.29(a) UCPR.

32. As set out in r 14.28 UCPR, the Court may, at any stage of the proceedings, strike out the pleading if it discloses no reasonable cause of action or other case appropriate to the nature of the pleading, or has a tendency to cause prejudice, embarrassment or delay in the proceedings or is otherwise an abuse of the Court’s process.

Determination

33. There are a number of problems with the amended statement of claim on which the plaintiff seeks to rely and his case in general.

34. Plainly, the plaintiff pleads as facts and seeks to agitate issues which have already been determined in earlier cases. This is best exemplified by the judgment of Harrison AsJ in the case against Mr Littleproud. [3] Again, on my reading of the earlier judgments and my own familiarity with the case that I heard previously, behind all of the plaintiff’s cases is the essential allegation relating to the conduct of Racing NSW and those persons associated with the administration of the CHAPS scheme. To the extent that the plaintiff seeks to re-agitate the same issues in these proceedings, he should not be permitted to do so.

    3. Golden v Littleproud [2019] NSWSC 120.

35. To the extent that those allegations might be mere background to his other allegations in this matter, it is necessary to consider the cause of action raised against the defendants. As I have indicated, the plaintiff identifies that he is pursuing causes of action in deceit and/or negligence. Whilst he refers to negligence in one of the orders he seeks, he does not plead the elements of the cause of action of negligence or, indeed, that of deceit.

36. I have the impression that the plaintiff’s real case against each of the defendants is that they failed to investigate his complaints and, in some way, this gives rise to a cause of action in deceit. The difficulty for the plaintiff is not only that does he not properly plead any cause of action in deceit, there is nothing at all in the amended statement of claim which would provide a basis for a cause of action in deceit.

33. As was observed in Magill v Magill, [4] the tort of deceit provides a legal remedy for harm suffered in consequence of dishonesty. The tort of deceit may arise in some circumstances when a person intervenes in the affairs of another and does so dishonestly. That is, a common form of dishonesty is a false representation fraudulently made or a representation made not knowing or caring whether it is true or false.

    4. [2006] HCA 51 at 17 per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ.

34. Further, it is not apparent how success in any cause of action pursued by the plaintiff against any of the defendants at this time could lead to what the plaintiff seeks; that is, damages in the amount of $10 million, return of his horse racing licence, and referral to the NSW Office of the Director of Public Prosecutions. None of the persons sued in this case had anything to do with the CHAPS scheme. None of the persons sued were responsible directly or indirectly for the plaintiff losing his licence or being warned off race tracks in New South Wales. None of the persons sued were responsible or had anything to do with the plaintiff losing income from his core business over the past 10 years. Further, the plaintiff does not say in the amended statement of claim how such persons are responsible or could be responsible.

35. Finally, the plaintiff makes a number of what may be termed scandalous allegations in the amended statement of claim. Those allegations are made against many people who have been involved in dealing with the plaintiff’s grievances since they first arose and include judicial officers and other persons involved in his cases. He does not particularise these allegations; he merely makes bare assertions which are scandalous in nature.

36. In my view, the statement of claim does not disclose any reasonable cause of action against any of the defendants. Further, the proceedings are an abuse of process in that the plaintiff is seeking to re-agitate issues he has already pursued; alternatively, he seeks to re-agitate issues against the same defendants whom he has pursued previously.

37. On my understanding of the case the plaintiff wishes to pursue – that is, a cause of action in deceit – there is no possible basis of success against any of the defendants. There is no point merely striking out the statement of claim or making orders that the plaintiff re-plead his case.

38. In those circumstances, the proceedings should be dismissed against all of the defendants pursuant to Part 13, rule 4 UCPR.

39. I make the following orders:

1. The proceedings are dismissed.

2. I direct that within 7 days, the defendants file their written submissions in relation to costs and any ancillary orders and give notice to the plaintiff of what orders they are seeking.

3. The plaintiff is to file its written submissions 7 days after receipt of the defendants’ submissions on the question of costs and any ancillary orders.

4. The matter is listed on a date and time to be fixed for the purpose of hearing submissions as to costs.

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Endnotes

Decision last updated: 20 February 2023