Golden v Howard

Case •

[2023] NSWSC 1418

•

22 November 2023

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Golden v Howard [2023] NSWSC 1418
Hearing dates: 21 August 2023
Date of orders: 22 November 2023
Decision date: 22 November 2023
Jurisdiction:Common Law
Before: Wright J
Decision:

(1) Subject to order (2), pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed.

(2)   The question of costs of the defendants’ notice of motion filed on 24 April 2023 and of the proceedings, together with consideration of the remaining aspects of that notice of motion are listed for directions on 6 December 2023 before Wright J.

Catchwords:

CIVIL PROCEDURE – summary dismissal – striking out pleadings – whether proceedings disclose a reasonable cause of action – whether proceedings are abuse of process or vexatious – whether pleadings are embarrassing – proceedings dismissed

Legislation Cited:

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

Vexatious Proceedings Act 2008 (NSW)

Evidence Act 1995 (NSW), s 140(2)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258

Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246; [1981] HCA 20

Dickson v Commissioner of the Australian Federal Police [2019] NSWSC 1293

Dickson v Commissioner, Australian Federal Police [2020] NSWCA 125; 381 ALR 364

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

Golden v Anderson (No 2) [2023] NSWSC 339

Golden v Anderson [2023] NSWSC 97

Golden v Koffel [2021] NSWSC 739

Golden v Koffel [2021] NSWSC 739

Golden v Koffel [2022] NSWCA 8

Golden v Littleproud [2019] NSWSC 120

Golden v V’landys [2015] NSWSC 1709

Golden v V’landys [2016] NSWCA 300

Golden v V’landys [2019] NSWSC 1362

Golden v V’Landys [2020] HCASL 205

Golden v V’landys [2020] NSWCA 120

Kuruppu v R [2021] NSWCCA 261

Magill v Magill (2006) 226 CLR 551; [2006] HCA 51

McKellar v Container Terminal Management Services Ltd [1999] FCA 1101: (1999) 165 ALR 409

Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569

O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71

Oceanic Sun Line Special Shipping Company Inc v Fay (1998) 165 CLR 197; [1998] HCA 32

PWJ1 v The State of New South Wales [2020] NSWSC 1235

Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491; [2002] HCA 10

Spencer v The Commonwealth [2010] 241 CLR 118; [2010] HCA 28

Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59

Szanto v Bainton [2011] NSWSC 985

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Category:Procedural rulings
Parties: Joseph Golden (Plaintiff/Respondent)
John Howard (Defendant 1/Applicant)
Tony Burke (Defendant 2/Applicant)
Representation:

Plaintiff/Respondent in person

Counsel:
V Thomas (Defendants/Applicants)

Solicitors:
Ashurst (Defendants/Applicants)
File Number(s): 2023/76838

JUDGMENT

Introduction

  1. Mr Golden, the plaintiff, strongly believes that the Commercial Horse Assistance Payment Scheme (CHAPS) established by the Commonwealth Government in 2007 for the purposes of providing a form of compensation to horse trainers and horse owners adversely affected by equine influenza virus was fraudulently exploited or maladministered, including by those associated with Racing NSW. He also believes that, because of his attempts to expose that fraudulent exploitation or maladministration, he has been dealt with unfairly and his rights and interests as a horse breeder and trainer have been damaged or destroyed. Mr Golden has provided a significant amount of material which he believes establishes his claims of fraudulent exploitation or maladministration of the CHAPS and the loss and damage he has suffered as a result of attempting to expose the exploitation or maladministration. He fervently desires to have issues of whether the CHAPS was exploited or maladministered investigated by some proper authority.

  2. This Court is not, however, the authority which can conduct such a broad-ranging investigation in the course of these proceedings.

  3. This Court administers the common law system of adversarial trial which inherently involves a trial conducted by an independent and impartial tribunal, in this case, a judge. As a result, this Court is not able to conduct a general investigation of Mr Golden’s concerns for the reasons explained recently by the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (GLJ) at [19]-[20] as follows:

“… The adversarial system of justice ‘leave[s] each party to bring forward the evidence and argument to establish [their] case, detaching the judge from the hurly‑burly of contestation and so enabling [the judge] to view the rival contentions dispassionately’. The adversarial system does not ‘involve the pursuit of truth by any means’ and does not permit the judge to engage in ‘an inquisitorial role in which [the judge] seeks ... to remedy the deficiencies in the case on either side’. The judge ‘hear[s] and determine[s] the issues raised by the parties’ and does not ‘conduct an investigation or examination on behalf of society at large.’

… Accordingly, the adversarial system generally requires that a plaintiff be able to identify the claim made and the material facts on which the claim is based, and that a defendant be able to consider and respond to the claim in some meaningful way. If these requirements cannot be satisfied in some way or another then the adversarial system of justice, a principal means by which the rule of law in Australia is maintained, is unable to function. Confined to the exercise of judicial power as understood in a common law adversarial system, no judge can perform these essential functions of making and responding to the claim in the place of the plaintiff and the defendant.” (Footnotes omitted)

  1. Thus, this Court cannot perform the function of making claims and identifying material facts on which the plaintiff should rely nor can it engage in an inquisitorial role and seek to remedy any deficiencies in the plaintiff’s case. Most significantly, the Court cannot conduct an investigation or examination of the events surrounding the CHAPS on behalf of society at large. This Court can only determine, in accordance with law including the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the issues properly brought before it in relation to causes of action against the defendants named in these proceedings, Mr John Howard and Mr Tony Burke.

  2. I have reached the conclusion, for the reasons set out below, that the proceedings should be dismissed. This is not because I have formed any view as to those more general matters which Mr Golden wishes to have investigated.

These proceedings

  1. Mr Golden has brought the present proceedings against two defendants by filing a statement of claim on 28 February 2023. As I understand it, Mr Golden relies on the fact that Mr Howard was the Prime Minister of Australia when the CHAPS was established and until the general election in late 2007, and Mr Burke became the Commonwealth Minister responsible for the CHAPS after that general election.

  2. By notice of motion filed 24 April 2023, the two defendants, Mr Howard and Mr Burke, seek to have the whole of the proceedings against them dismissed pursuant to r 13.4(1) of the UCPR. In the alternative, the defendants have sought to have the whole of the statement of claim filed on 28 February 2023 struck out pursuant to r 14.28(1) of the UCPR. In the further alternative, the defendants seek that the proceedings be stayed. The defendants also seek costs of the motion and the proceedings and that those costs be paid in a specified gross sum instead of the costs being assessed.

  3. It can be noted at this point that the two defendants, in their notice of motion, have also sought orders under the Vexatious Proceedings Act 2008 (NSW) prohibiting Mr Golden from instituting further proceedings without leave or, alternatively, an order restraining Mr Golden from instituting similar proceedings until any costs are paid.

  4. In order to avoid any potential perception of pre-determination, I indicated to the parties that I would determine the summary dismissal and related aspects of the notice of motion first. The vexatious proceedings aspects of the motion can then be considered, if necessary, at a later time. There was no objection to my taking this course.

Background

  1. The background to the issues which the plaintiff seeks to raise, or have investigated, in the present proceedings was summarised, adequately for present purposes, by Cavanagh J in Golden v Koffel [2021] NSWSC 739 at [5]-[8] as follows:

“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. These are not the first proceedings Mr Golden has brought in relation to the CHAPS and Mr Golden’s interactions with Racing NSW among others. The other proceedings have included the following:

Proceedings

Nature of the claim

Nature of the outcome

Golden v V’landys [2015] NSWSC 1709

Judicial review of two decisions made by Mr V’landys and Racing NSW.

Claim for misfeasance in public office.

Judgment for the defendants

Golden v V’landys [2016] NSWCA 300

Appeal from the decision in [2015] NSWSC 1709 on the basis that the primary judge should have found that one of the two decisions was affected by apprehended bias, was made for an improper purpose and constituted the tort of misfeasance in public office.

Leave to appeal granted and an order that one of the decisions be set aside because of a reasonable apprehension of bias.

Golden v Littleproud [2019] NSWSC 120

Claim of misfeasance in public office by a Commonwealth Minister responsible for CHAPS.

Proceedings dismissed under UCPR r 13.4(1).

Golden v V’landys [2019] NSWSC 1362

Allegations of corruption in the administration of CHAPS and the decisions made by Mr V’landys regarding Mr Golden’s thoroughbred trainer licence in 2011.

Statement of claim struck out under UCPR r 14.28(1) and proceedings dismissed under UCPR r 13(4)(1).

Golden v V’landys [2020] NSWCA 120

Application for leave to appeal [2019] NSWSC 362.

Leave to appeal refused “on the basis that Mr Golden’s proposed appeal is hopeless”.

Golden v V’Landys [2020] HCASL 205

Special leave application to appeal [2020] NSWCA 120.

Application refused as it did “not identify any question of law of general importance that would warrant the grant of special leave to the appeal”.

Golden v Koffel [2021] NSWSC 739

Claim in professional negligence in relation to the defendants’ carriage on behalf of Mr Golden of the proceedings the subject of [2015] NSWSC 1709.

Proceedings dismissed under UCPR r 13.4.

Golden v Koffel [2022] NSWCA 8

Application for leave to appeal from the decision in [2021] NSWSC 739.

Application dismissed as “there [was] not an even arguable basis upon which the applicant’s proceeding could succeed”.

Golden v Anderson [2023] NSWSC 97

Claim against six defendants including the Premier of New South Wales and a number of Commonwealth and New South Wales Ministers and Members of Parliament relating to allegations of misconduct, fraudulent conduct, misrepresentation and other serious allegations concerning the administration of the CHAPS, including by Racing NSW.

Proceedings dismissed under UCPR r 13.4(1).

Golden v Anderson (No 2) [2023] NSWSC 339

Orders sought by defendants in relation to costs and restraining the plaintiff from commencing further proceedings.

Note: The plaintiff complained to the Judicial Commission of NSW in relation to Justice Cavanagh and the outcome of this proceeding on 13 February 2023.

Costs orders made in favour of the defendants and orders restraining Mr Golden “from commencing, in any Court or Tribunal, any proceedings against [any of the six defendants] … which arise from the same or similar facts as those alleged in these proceedings, without leave of a Judge of the Supreme Court of New South Wales, unless and until [Mr Golden] has paid the costs ordered [in the other costs orders made at that time]”.

Applicable rules and principles

  1. The defendants seek to have the proceedings dismissed under UCPR r 13.4 and the statement of claim struck out under r 14.28.

  2. Rule 13.4 of the UCPR provides:

“(1) 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.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

  1. Rule 14.28 deals with the related matter of striking out a pleading and is relevantly in the following terms:

“(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action…, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

  1. The general approach to be adopted in relation to applications under provisions such as rr 13.4 and 14.28 was stated by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 in the following terms at [57]:

“It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court's jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.” (Footnote omitted)

  1. More particularly, a reasonable cause of action will not be disclosed for the purposes of r 13.4(1)(b) and r 14.28(1)(a) unless the material facts necessary to constitute a complete cause of action are pleaded and the cause of action, when considered only in light of the allegations of fact contained in the challenged pleading, has some chance of success: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101: (1999) 165 ALR 409 at [23]–[25] (Weinberg J) (noting that the Federal Court Rules at that time, quoted at [20], were in a form substantially similar to the relevant provisions of the UCPR).

  2. Nonetheless, on a summary dismissal application the Court is not to look simply to the form a plaintiff’s claim may take but the substance disclosed within it. Consequently:

  1. The real issue is whether a reasonable cause of action exists, not simply whether one is pleaded: Spencer v The Commonwealth [2010] 241 CLR 118; [2010] HCA 28 (Spencer) at [22]–[23] (French CJ and Gummow J); O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 (O’Brien) at [3] (Macfarlan JA, Beazley P and Ward JA agreeing);

  2. The critical question can be expressed as whether there is more than a "fanciful" prospect of success (Spencer at [25]) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (Spencer at [54]): O’Brien at [3];

  3. It must also be borne in mind that powers to terminate proceedings summarily must be exercised with exceptional caution: Spencer at [24], [55]; O’Brien at [3].

  1. In the context of r 13.4(1)(a) and (c) and r 14.28(1)(c), the concepts of “vexatious” and “abuse of process” are not necessarily distinct and they tend to overlap. “Vexatious” refers to proceedings that are productive of serious and unjustified trouble or harassment: Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491; [2002] HCA 10 at [25] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) citing Oceanic Sun Line Special Shipping Company Inc v Fay (1998) 165 CLR 197; [1998] HCA 32 at [6] (Wilson, Brennan, Deane, Toohey and Gaudron JJ). Vexatious proceedings can also be instances of proceedings that are an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ); [1993] HCA 77.

  2. What amounts to an “abuse of process” in this context does not lend itself to exhaustive statement: UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 (UBS) at [1] (Kiefel CJ, Bell and Keane JJ), [61] (Gageler J, as his honour then was, agreeing). Relevantly, an abuse of process may arise in various situations including where:

  1. a party attempts to raise issues in successive proceedings and doing so is contrary to the principle of finality and the timely and efficient administration of civil justice: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 (Tomlinson) at [24] (French CJ, Bell, Gageler and Keane JJ) and UBS at [72] (Gageler J, as his honour then was); and

  2. a claim is made which should have been litigated in an earlier proceeding: Tomlinson at [26]; UBS at [43], [75].

  1. Further, an abuse of process based upon attempting to raise issues in successive proceedings may be found even in a case where the claims sought to be litigated are arguable, the defendant has not been called upon to defend them, and delay has not made their fair trial impossible: UBS at [41], [44], [59] and [61].

  1. As I said in Dickson v Commissioner of the Australian Federal Police [2019] NSWSC 1293 (in relation to which leave to appeal was refused in Dickson v Commissioner, Australian Federal Police [2020] NSWCA 125; 381 ALR 364) at [105], in a case like the present determining whether conduct amounts to an abuse of process requires the Court to make a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it issues which could have been raised before. In this context, the overriding purpose of the UCPR set out in s 56 of the Civil Procedure Act 2005 (NSW) is relevant as an indication of the wider public interest that must be taken into account.

  2. For the purposes of UCPR r 14.28(1)(b), “embarrassment” relates, in essence, to whether the pleading can serve the function of a pleading under the UCPR, namely, in succinct fashion to put the defendant properly on notice of the real substance of the claim made against it so that the defendant knows what case it has to meet. Consequently, a pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim: Szanto v Bainton [2011] NSWSC 985 at [107] (Ward J, as her Honour then was); Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [21] (Burley J) (noting that the relevant Federal Court Rules there cited were in a form substantially similar to the relevant provisions of the UCPR).

  3. These general principles have guided the Court in determining whether Mr Golden’s statement of claim filed on 28 February 2023 should be struck out and his proceedings dismissed.

The statement of claim

  1. Since Mr Golden was not represented by a solicitor, his statement of claim was required to be in the form prescribed by UCPR form 3B.

Type of claim

  1. As prescribed by from 3B, the statement of claim contained a section headed “Type of claim” which stated:

“Administrative Law – Prerogative writ – Other”.

  1. Having regard to the rest of the statement of claim this was, at best, a misdescription and was misleading.

Relief claimed

  1. Under the heading “Relief claimed”, there were 18 prayers for relief in which Mr Golden sought:

  1. In prayers 1-14, “declarations” which did not appear to be declarations of right but rather conclusions of fact, or of fact and law, which Mr Golden hoped to establish at a hearing, some of which were unclear or unintelligible and only nine of which mentioned one or other or both of the defendants. Given the nature of these “declarations”, it was appropriate in some cases to treat them as an attempt to plead allegations and to take them into account in determining whether a reasonable cause of action was disclosed, even though they did not appear in the section of the statement of claim headed “Pleadings and particulars”. The “declarations” included the following:

“1. [A declaration in substance concerning fraudulent claims made under the CHAPS by a horse trainer in New South Wales in relation to some of Mr Golden’s horses, Mr Golden’s discovery and reporting of the fraud which ‘meant [Mr Golden] would be abused by [Racing NSW] later on’].

2 A declaration that John HOWARD approved Racing NSW [RN] second $110m Commonwealth Commercial Horse Assistance Payment Scheme [CHAPS] around Sep-Oct-2007, which impacted plaintiffs income generation opportunities & which culminated in RN embezzling $110m or greater CHAPS laundering & theft

3 A declaration that Tony BURKE 2008 Commonwealth Agriculture Minister was negligent by accepting $9m Audit report for RN $235m CHAPS advances for scheme worth $80m to $100m maximum that allowed RN CHAPS administrators to gouge the public purse till 13 Mar-2008, when horse racing returned to normal Dec-2007 with no Equine influenza spreads after 9 Dec-2007, while Agriculture staff repeatedly asked RN Agent to return CHAPS advances

4 A declaration CHAPS funding was approved till racing returned to normal, available to IN WORK owner horses denied income & not spelling horses.

5 A declaration Grafton Police failed to investigate or examine IN WORK trainer track usage records & RN Agent interfered with Grafton IN WORK trainer records 2015.

6 A declaration that Racing NSW [RN] Commonwealth RN-CHAPS Agent consulted personally with first defendant using out of date, obsolete, deceased, retired & spelling horses to deceive the Commonwealth with second $110m CHAPS approval

7 A declaration that 2007 Commonwealth AG Minister Peter MCGAURAN & Prime Minister defendant John HOWARD RN-CHAPS second $110m approved embezzlement prior to losing Nov-2007 Federal election was referred to PM Kevin RUDD who forwarded frauds to NSW Premier, & who forwarded fraud concerns to NSW Racing Minister Kevin P GREENE Sep-2008 who failed to investigate CHAPS frauds & was rewarded with eight years RN Board membership 2011-2018

a. Peter MCGAURAN commenced work with RN affiliate Apr-2008 for next eight years, after also shredding NSW Grafton Police report plus approving CHAPS outside of guidelines, & or with second defendant Tony BOURKE, [with] CHAPS] approval minutes sighted purportedly only by Auditors & nobody else has seen

8 A declaration that defendants Commonwealth RN Agent Bullied, abuse & bankrupted [1] plaintiff for reporting CHAPS fraud & widespread frauds in 2010…

1. When queried during the oral hearing, Mr Golden clarified that he had not actually been made bankrupt at any time: Tcpt, 21 August 2023, p 9 (6)-(22).

9 A declaration that Commonwealth RN Agent in consultation with defendants mismanaged, misappropriated & redirected CHAPS to RN select transit BOBS Directors 16 years to 2023 for BOBS-Breeders & Owners Bonsu Scheme Directors & Owners who purchased RN-BOBS-Director horses with CHAPS rebranded as industry contributions for 16 years & BOBS elite members.

10 A declaration that defendant 2007 Prime Minister John HOWARD personally negotiated an unprecedented $235m funding package with RN thief, thug, tyrant, bully [TTTB], Chief Embezzlement Officer Peter V’LANDYS Sep-Oct-2007 on the eve of a Federal election for a scheme worth $80m to $100m maximum.

11 A declaration CHAPS was available till racing returned to normal, & ended Dec-2007 and RN Commonwealth public funds looting continued to 13-Mar-2008

12 I declare same Judge who rejected live CHAPS fraud demonstration 6 Feb-2023, exonerated a lawyer thief who failed to recover & discover trainers 2007-2008 IN WORK track usage numbers records also exonerated current portfolio Ministers too lazy to recover V’LANDYS-HOWARD- BURKE $110m 2007 CHAPS theft [&] is now referred to Judicial Commission NSW [JCN] complaints, 13 Feb-2023, & I won’t be holding my breath with JCN complaint C/23/14 moved further down the road.

13 A declaration there were two minimum simple accountable transparent CHAPS delivery options several supervised sixteen year old students could have managed & applied, & which RN consciously avoided, so RN could steal the CHAPS

14 A declaration that two or more RN malfeasants attended [Mr Golden’s] 2017 NSW trainers licence renewal application, having won 2016 appeal, which was rejected and included RN Board malfeasants KP GREENE, 2008 NSW Racing Minister come CHAPS fraud assistant and Anthony G HODGSON partner to RN-CHAPS-BOBS-MESSARA come RN Chairman 2011-2016, accomplice in 2007-2011 CHAPS theft”.

  1. In prayer 15, the relief sought was:

“An order that deceit, negligence or other torts was exercised by defendants [by] not exposing RN trainer CHAPS facilitated frauds and cover up nor recovery of Agent RN $110m to $137m embezzlement with misappropriated funds following Department of Agriculture Fisheries & Forests [DAFF] Ministry repeat RN requests unspent CHAPS be refunded & returned”;

  1. In prayer 16, “Damages $10m including exemplary damages”

  2. In prayers 17 and 18, interest and costs.

Pleadings and particulars

  1. Under the heading “Pleading and Particulars” in the statement of claim, there were 86 paragraphs, some of which make allegations of serious criminal and other conduct including embezzlement or fraud on the part of persons other than the defendants. Other paragraphs made allegations of failure by various persons including Commonwealth and State Ministers, other than the defendants, to investigate the criminal conduct alleged by Mr Golden. The paragraphs which refer to at least one of the defendants in the present proceedings, provide context or explain the damages claimed by the plaintiff are set out below in full, otherwise the substance of the matters alleged is set out italicised and in square brackets:

“1 Sep-Opt-2007, DAFF – Department of Agriculture Fisheries & Forests Minister Peter McGauran with defendant Prime Minister John HOWARD were deceived by Racing NSW [RN] to approve second $110m Commercial Horse Assistance Payment Scheme [CHAPS] funding supported by 7–14 year old obsolete incorrect horse records that paid trainers CURRENT STABLE, for deceased, retired & spelling horses for money laundering & redirected to RN privileged Directors, RN-BOBS committee Breeders & Owners Bonus Scheme members when intended for IN WORK denied income owner horses CHAPS eligibility and 70% trainer credits for owners [from trainers CHAP receipts], mismanaged by RN embezzlement Agent.

2 [This paragraph contained an allegation of a Racing NSW media release concerning evidence to support CHAPS payment claim and allegations that the relevant evidence could be obtained simply by changing the status of a horse on the Racing NSW website, which Mr Golden was not allowed to demonstrate to the Court in other proceedings heard on 6 and 7 February 2023.]

3 As a result of RN 2007–2008 derelict payments without a CHAPS ship Captain, RN paid trainer CHAPS for plaintiffs injured bowed tendon spelling horse from day one plus paid trainers CHAPS for deceased, retired & spelling [DRS] horses, & trainer DRS refunds were laundered back to RN bank account & reclassified as RN-BOBS industry contributions redirected to RN-BOBS committee & members, mostly few RN-BOBS Directors & Peter V’LANDYS retirement foundations fund.

4 Resulting from RN Sep-Oct-2007 [to Feb-2008] derelict payments without trainers passing on 70% CHAPS owner credits, RN paid trainers for deceased, retired & spelling horses and Mr MCGAURAN & John HOWARD approved second $110m on eve of 2007 election which secured MCGAURAN Apr-2008 RN post government job following 2007 election loss & MCGAURAN security to Dec-2016,

a. Owners would not be aware CHAPS payments to trainers for DRS horses, and highlights a scam or sham by RN conspiring conflicted parties.

5 – 20 [These paragraphs contained extensive allegations none of which referred to either of the defendants. The allegations related, inter alia, to: Mr Golden’s CHAPS claims; the failure by Racing NSW to use “Trainers track usage IN WORK number records” which were available to verify CHAPS claims because “CHAPS was a $235 m scan to inject & redirect money to RN-CHAPS-BOBS select directors’ pockets over next sixteen years”; Mr Golden’s trainer not crediting CHAPS payments to Mr Golden’s account and claiming for ineligible spelling horses, among other types of ineligible horses; the trainer tricking Mr Golden’s son into signing a declaration for CHAPS which should not have been accepted by Racing NSW; an “RN-CHAPS-trainer fraud cover up instruction” of 14 February 2008; a “cover up investigation” by a Racing NSW steward; the underlying reason for horses breaking down being the “RN coerced synthetic training tracks installation”; Grafton race club’s reducing “trainers synthetic track fees”; NSW police officers refusing to provide Mr Golden with “event number reporting CHAPS frauds in Jan-2008;” and, Mr Golden being asked whether he “would like some more CHAPS money” by a “lass from RN CHAPS Sydney”].

21 24 January 2008, plaintiff reported CHAPS fraud & widespread fraud to RN CEO Peter V’LANDYS, 2008 DAFF & shadow Ministers Tony BURKE & Nigel SCULLION and Australian Prime Minister Kevin RUDD,

22 – 39 [These paragraphs contained allegations none of which referred to either of the defendants. The allegations related, inter alia, to: CHAPS deposits from Racing NSW into Mr Golden’s bank account, some of which Mr Golden refunded; persons refusing to assist Mr Golden as witnesses in relation to “CHAPS frauds”; correspondence between Mr Golden and NSW police and persons from Racing NSW concerning his allegations of fraud in relation to CHAPS; Racing NSW refusing “CHAPS fraud assistance” to the Australian Federal Police; “RN somebody” instructing a trainer to submit evidence “to cover up RN Negligence”; a trainer faxing an explanation and lies to Racing NSW; CHAPS fraud investigators identifying “18 of 44 dodgy horse names”; steps taken by Racing NSW in relation to the trainer’s CHAPS claims and destruction of records by “CRJC race club CEO”; and Racing NSW’s failure to recover Mr Golden’s “Grafton trainer fraud payments” and the fine, licence suspension and refund imposed on the trainer; Mr Golden refusal in mid-2008 to provide statutory declaration requested by Racing NSW CHAPS manager for “RN 2007 reckless payments” for one of Mr Golden’s horses; Mr Golden’s telephone contact with Racing NSW including with “RN counsel … who would not assist in trainer investigation or anything”; Mr Golden’s life time ban and refusal of licence renewal in 2011 and 2017 as a result of Racing NSW’s counsel “groom[ing] … puppets” and “arrang[ing] two colluding cover up RN directors”; Mr Golden giving NSW police officer LISTER information about frauds in March 2008; and Racing NSW’s licensing powers being transferred to “Chief Embezzlement Officer Peter V’LANDYS”].

40 25 Mar–2008, NSW Police LISTER sent report to DAFF Minister MCGAURAN [or defendant two BURKE] who resigned from Parliament 4 Apr–2008 & likely shredded 25 Mar Police report to protect new boss V’LANDYS for documents discovery

41 – 45 [These paragraphs contained allegations none of which referred to either of the defendants. The allegations related, inter alia, to: Mr McGauran’s resignation from Parliament and commencing work with Racing NSW; Racing NSW CEO lying to the ABC; a New South Wales Minister sending “CHAPS fraud to Federal Minister Janelle SAFFIN merry-go-round operations” and action taken against the trainer which was also referred to in par 32(d)].

46 12 Jun–2008, defendant two BURKE letter read, they had assurances from RN the fraud trainer was investigated plus there was a very high CHAPS compliance rate.

47 Jul-Aug-2008, Auditors accepted Chief Embezzlement Officer Peter V’LANDYS $9m Audit report for $235m missing CHAPS worth $80m – $100m

a. Auditors’ arrival announced CHAPS Ministerial agreement outside of guidelines by MCGAURAN or BURKE, & will be part of discovery papers.

48 - 61 [These paragraphs contained allegations none of which referred to either of the defendants. The allegations related, inter alia, to: “RN-trainer-CHAPS laundering overpayments and refunds” continuing from 2008 to 2011; a trainer’s sale of horses on 28 August 2008 at “Greyhound feed supply abattoir sales”; the 2008 New South Wales racing minister failing to investigate CHAPS frauds; DAFF CHAPS guidelines; Racing NSW “retributions to [Mr Golden]” beginning in July 2010 “followed by more bullying & harassments” including imposing racing restrictions, failing to respond to Mr Golden’s correspondence and handing Mr Golden a breeder-trainer lifetime training ban on 24 June 2011; Racing NSW’s assets increasing by $137 million as at 30 June 2011; on 10 September 2010, Senators continuing CHAPS fraud whitewash to protect relevant ministers (not including either defendant); Mr Golden retaining “useless lawyers” in December 2012; in January 2014 “numbskull(s)” nominating Mr V’Landys for “an order of Australia medal for “successful CHAPS embezzlement”; Racing NSW being successful in November 2015 in having “IN WORK records” destroyed].

62 APR-2016, Peter V’LANDYS bragged CHAPS stolen from defendants.

63 – 81 [These paragraphs contained allegations none of which referred to either of the defendants. The allegations related, inter alia, to: Mr Golden’s successful appeal to the Court of Appeal in November 2016, Mr McGauran’s retirement from Racing Australia in December 2016; the refusals of the NSW Premier, the Prime Minister and other Ministers (not including either defendant) to investigate CHAPS frauds or engage with compensation or reissue of Mr Golden’s licence between 2016 and 2022; Racing NSW’s refusal in February 2017 to relicense Mr Golden following his successful appeal; and the other proceedings brought by Mr Golden described as “two claims won, eight lost”].

82 Seven Minister defendants claim 2022-189359, 2023 NSWSC XXX pending dismissal grounds are public servants need not recover stolen public monies even if they held or hold same Ministry positions, but more importantly because defendants had nothing to do with 2007–2008 RN Chief Embezzlement Officer Peter V’LANDYS & co. CHAPS conspiracy theft, but two defendants listed today played parts in RN $110m or greater theft

83 I encourage defendants John HOWARD & Tony BURKE attended to RN thieves, get together starting plaintiff settlements & NSW trainer licence reissue with RN-CHAPS mismanagement & RN Board replacement as is fit.

84 Plaintiff wants his home & business, breeding & racing thoroughbreds replaced, plus twelve years denied income 2011 – 2023.

85 Plaintiff still has life to continue why he purchased & developed GRAFTON property northern NSW to breed & race a Grafton-Melbourne Cup winner

86 Plaintiff’s former King Street, Wollstonecraft & Upper Pit Street, Kirribilli resident who regularly passed by & saw Mr HOWARD on daily walks with security & always voted HOWARD”.

Does the statement of claim disclose a reasonable cause of action?

  1. Prayer 15 of the relief claimed identified two torts allegedly committed by the two defendants, namely deceit and negligence as well as alleging that other unspecified torts were committed by them. No other causes of action against the two defendants were specifically identified.

Deceit

  1. In Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 (Magill), the High Court identified the elements of the tort of deceit as follows, at [114] (Gummow, Kirby and Crennan JJ):

  1. The defendant made a false representation;

  2. The representation was made with the knowledge that it was false, or the defendant was reckless or careless as to whether the representation was false or not;

  3. the defendant made the representation with the intention that it be relied upon by the plaintiff;

  4. the plaintiff acted in reliance on the false representation; and

  5. the plaintiff suffered damage which was caused by reliance on the false representation.

  1. In order for a pleading to disclose a reasonable cause of action in deceit, allegations satisfying each of those elements must be pleaded. In Magill at [114], the High Court noted that the need to satisfy each element of the tort of deceit has always been strictly enforced, because fraud of this nature is such a serious allegation.

  2. Mr Golden’s statement of claim did not allege that either of the two defendants made a false representation, knowingly or carelessly, with the intention of Mr Golden relying on it. Nor was it alleged that Mr Golden acted in reliance on any such representation by either defendant or that the loss or damage claimed was caused by his reliance on such a false representation.

  3. Furthermore, Mr Golden did not point to any material, in the statement of claim or otherwise, which suggested that he could plead each of the elements of such a cause of action, if given the opportunity to replead.

Negligence

  1. The pleading of a reasonable cause of action in negligence requires that allegations sufficient to establish each of the elements of that cause of action are set out in the statement of claim. The elements of the tort of negligence at common law can be described, based on what was said by McHugh J Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 (Tame) at [88] in conveniently simple terms sufficient for present purposes, as follows:

  1. There was a duty of care, recognised by law, owed by the defendant to the plaintiff;

  2. There was a breach of that duty; and

  3. There was a causal connection between the damage sustained and the breach of duty, which damage was not too remote from the breach.

  1. In Mr Golden’s case, however, attention must also be paid to the relevant provisions of the Civil Liability Act 2002 (NSW), in particular ss 5B and 5C, when considering whether a reasonable cause of action has been pleaded. This follows form the fact that Mr Golden’s claim is not excluded from the operation of the Civil Liability Act by any provision of s 3B of the Act.

  2. Sections 5B and 5C are directed to questions of breach of duty: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48; at [13]. Those sections provide:

“5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

5C Other principles

In proceedings relating to liability for negligence –

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

  1. In general terms and apart from the reference to Mr Burke being allegedly “negligent” in prayer 3 and “negligence” in prayer 15, there was nothing in the statement of claim which amounted to a viable attempt to plead a claim in negligence against the two defendants relating to the loss allegedly suffered by Mr Golden. It was not alleged that either of the defendants owed him a duty of care, nor were there any allegations which would have supported a conclusion that such a duty was owed. There was no allegation that either of the defendants breached a duty of care owed to Mr Golden by failing to take precautions that a reasonable person in the defendants’ position would have taken against any identified risk of harm. Nor was there any allegation that any such breach caused the loss and damage claimed to have been suffered by Mr Golden. Nonetheless, it is appropriate to consider the underlying substance of Mr Golden’s claim in negligence, before concluding whether it should be dismissed without proceeding to trial.

Duty of care

  1. In determining whether the first element, the existence of a duty of care owed by the defendants to the plaintiff, was or could have been pleaded, careful attention is usually required to be given to the facts, matters and circumstances which upon the plaintiff relies to give rise to that duty, if the duty is not one which falls into an accepted or recognised category of duty. In Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, in considering whether a duty of care relied upon by a plaintiff existed, the High Court said at [50]:

“Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion to be arrived at as a matter of principle. …” (Citations omitted)

  1. As noted above, Mr Golden’s statement of claim did not expressly identify any duty of care alleged to have been owed by either of the defendants to the plaintiff in relation to the operation or administration of the CHAPS. Nor did it specifically allege that such a duty arose out of any facts pleaded in the statement of claim. Furthermore, the plaintiff’s claim for negligence occasioning economic loss was not based on any accepted or recognised duty of care owed to a person in the plaintiff’s position by someone in the positions of the two defendants. In these circumstances, the claim in negligence against the two defendants involved what can be described as a novel duty of care, which would necessitate consideration of principles such as those formulated in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 (Stavar) concerning the appropriate multifactorial approach.

  2. The Court of Appeal has held that ““[i]t is often, though not always, inappropriate to dismiss summarily a claim [alleging a novel duty of care] on the pleadings, at least [where the parties] stand at an early stage in litigation.”: New South Wales v Spearpoint [2009] NSWCA 233 at [26] (Allsop ACJ, Beazley JA agreeing).

  3. In the present case, in the absence of specific allegations relating to factors which should be considered under the multifactorial approach in Stavar, it is difficult to conclude that it would be open to the plaintiff upon the pleading provided to prove at trial facts which would give rise to a duty of care of the requisite type. Indeed, a consideration of the some of the salient factors features identified in Stavar at [103] suggests that a duty of care would not readily be found to arise in the present case. Those factors include the foreseeability of harm, the degree of control able to be exercised by the defendants as Prime Minister and a Minister over the administration of the CHAPS to avoid harm to a person in Mr Golden’s position, the degree of vulnerability of the plaintiff to harm from the defendants, the degree of reliance of the plaintiff on the defendants, the lack of relational or other proximity of the plaintiff to the defendants, the nature of the activity undertaken by the defendants as Prime Minister and a Minister in relation to the CHAPS, the degree of hazard liable to be caused by the defendants’ conduct relating to the CHAPS and the existence of conflicting duties on the defendants.

  4. Nonetheless, while there may be significant problems with Mr Golden’s pleading of the existence of a duty of care, in my view, the application should not be decided solely on basis that he has failed to plead allegations that would support the existence of a duty of care which might be recognised at law and that there is no reasonable prospect that he could do so.

Breach of duty and risk of harm

  1. A further element which must be pleaded is breach of duty. Sections 5B and 5C of the Civil Liability Act are directed to the related questions of breach of duty and the standard of care required to satisfy that duty. In this context, Garling J observed in PWJ1 v The State of New South Wales [2020] NSWSC 1235, at [57]:

“Once the integers of a duty are articulated, it is then essential to ensure that the risk of harm is identified and specifically pleaded, so as to inform the existence of, and content of a properly pleaded duty of care.”

  1. The Court of Appeal in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 held, at [7] (Basten JA), that:

“Section 5B of the Civil Liability Act 2002 (NSW) requires identification of a risk of harm, against which a person has failed to take precautions. Given its context, the risk must be that which materialised in the case of the injured person seeking to claim in negligence. That is because s 5B is dealing with a breach of a duty of care, being the duty of care owed by the defendant to the injured plaintiff.”

  1. Mr Golden’s pleading does not specifically identify the relevant risk of harm for the purposes of alleging a breach of duty or for the purposes of s 5B.

  2. From the references in the statement of claim to the damage allegedly suffered by Mr Golden, it appears that the “twelve years denied income 2011-2023” and any loss of his “home & business [as a horse breeder and trainer]” (both referred to in par 84 of the pleadings) were suffered as a result of action on the part of Racing NSW including:

  1. Mr Golden being warned off all race tracks under the control of Racing NSW indefinitely on 24 June 2011 (referred to, for example, in pars 56 of the pleadings), although that decision was set aside in Golden v V'landys [2016] NSWCA 300; 339 ALR 610; and

  2. Racing NSW’s refusal to renew Mr Golden’s trainer’s licence in 2011 and 2017 (referred to, for example, in prayer 14 and pars 34, 56 and 67of the pleadings).

  1. Racing NSW’s alleged motivation for doing so was disclosed, in effect, in prayer 8, in which Mr Golden sought “[a] declaration that defendants Commonwealth RN Agent Bullied, abused & bankrupted plaintiff for reporting CHAPS fraud & and widespread frauds in 2010” and in various paragraphs of the pleadings including, for example, par 52. These indicated that Mr Golden’s allegation was in substance that he was deprived of his livelihood as a breeder and trainer by Racing NSW’s actions because of his attempts to expose what he believed to be fraud on the part of Racing NSW.

  2. Mr Golden then sought to have liability for this alleged conduct of Racing NSW sheeted home to the two defendants on the basis that Racing NSW was the Commonwealth’s “agent”, as referred to, for example, in prayers 8 and 9. It was then further, in effect, alleged that the defendants were responsible for the torts of the Commonwealth’s “agent”, Racing NSW, because the ”two defendants listed today played parts in RN $110m or greater theft” (pleading par 82). Significantly, it was not alleged that the two named defendants played a part in any action taken by Racing NSW specifically in relation to Mr Golden.

  3. Given what appears to be the substance of Mr Golden’s claim for his particular loss and damage, as opposed to any loss suffered by the Commonwealth as a result of fraudulent or mismanaged claims under the CHAPS, it does not appear to be feasible to formulate a relevant risk of harm against which it could properly be alleged a reasonable person in the position of either of the two defendants would have taken precautions. Similarly, it is difficult to perceive that allegations could properly be made that either of the two defendants breached any relevant duty of care in the circumstances which appear to underly Mr Golden’s claim for his loss and damage. It does not appear that there is a proper pleaded, or available, basis for alleging that Racing NSW was the agent of the Commonwealth in relation to the alleged actions taken by Racing NSW against Mr Golden because he reported allegedly fraudulent conduct in relation to the CHAPS to Racing NSW. Nor is there any proper pleading or basis for the conclusion that, even if Racing NSW were the Commonwealth’s agent for those purposes, either of the two defendants would be vicariously or otherwise liable for any tortious conduct of Racing NSW for which the Commonwealth was liable.

  4. Accordingly, I do not accept that the statement of claim discloses any sufficient pleading of the breach of duty and risk of harm element of the tort of negligence. Nor can it be concluded that such an element could be pleaded, given the nature and circumstances of the loss and damage allegedly suffered by Mr Golden.

Causation of loss

  1. The final element which Mr Golden was required to plead was a causal connection between the damage sustained and the breach of duty, which damage was not too remote from the breach. There was no such express pleading in the statement of claim.

  2. Furthermore, if, as appears to be Mr Golden’s case, his loss and damage, as opposed to any loss suffered by the Commonwealth, was the result of Racing NSW’s imposing “a life time training ban” and refusing to renew his licence, it is difficult to perceive how any relevant causal connection could be pleaded or established between conduct of either of the defendants in breach of a relevant duty of care and the loss and damage claimed. The specific actions or involvement of either defendant which are pleaded would not support such a conclusion. This fundamental difficulty with the statement of claim can be illustrated by examples taken from the prayers for relief including the following.

  1. The allegation in prayer 2 that Mr Howard “approved Racing NSW [RN] second $110m Commonwealth Commercial Horse Assistance Payment Scheme [CHAPS] around Sep-Oct-2007, which impacted plaintiffs income generation opportunities & which culminated in RN embezzling $110m or greater CHAPS laundering & theft” did not allege a duty owed to Mr Golden or any breach of duty and the loss of $110 million or greater was not suffered by Mr Golden personally.

  2. The allegation in prayer 3 that Mr Burke “was negligent by accepting $9m Audit report for RN $235m CHAPS advances for scheme worth $80m to $100m maximum that allowed RN CHAPS administrators to gouge the public purse till 13-Mar-2008” did not allege a duty owed to Mr Golden or any breach of duty nor was the loss by reason of gouging of the public purse, loss or damage suffered by Mr Golden.

  3. The allegation in prayer 7 in so far as it might allege that Mr Howard “approved embezzlement prior to losing Nov-2007 Federal election” (which is not clear) does not allege involvement in any loss suffered by Mr Golden.

  4. The allegation in prayer 10 that Mr Howard “personally negotiated an unprecedented $235m funding package with RN thief, thug, tyrant, bully [TTTB], Chief Embezzlement Officer Peter V’LANDYS Sep-Oct-2007 on the eve of a Federal election for a scheme worth $80m to $100m maximum” bears no direct relationship to any loss suffered by Mr Golden.

  5. The allegation in prayer 15 that “that deceit, negligence or other torts was exercised by defendants [by] not exposing RN trainer CHAPS facilitated frauds and cover up nor recovery of Agent RN $110m to $137m embezzlement with misappropriated funds” identifies that Mr Golden’s case was in substance that the defendants facilitated and failed to prevent “embezzlement with misappropriated funds” not that their conduct relevantly caused any loss suffered by Mr Golden.

  1. There was no other material identified by Mr Golden which could support the conclusion that he had pleaded or could plead the causation element of the tort of negligence in respect of the loss and damage claimed by him or that such loss and damage was not too remote.

Conclusion on pleading of negligence

  1. In summary, Mr Golden did not plead, adequately or at all, the required elements of a claim in negligence against either defendant and did not point to any other material which would provide any substantial support for the required elements: that a relevant duty of care was owed by either defendant to him; that even if there were such a duty, either defendant breached that duty by failing to take precautions which a reasonable person in their positions would have taken against the relevant risk of harm; or, that any such breach of duty caused the loss and damage claimed to be suffered by Mr Golden.

Other potential tortious liability

  1. The pleadings indicate that Mr Golden’s case specifically against the two defendants essentially involved contentions that:

  1. The approval by the first defendant, Mr Howard, of the second $110m in CHAPS funding was brought about by his being deceived by Racing NSW: pleadings pars 1 and 4;

  2. The plaintiff reported what he described as “CHAPS fraud & widespread fraud” to various persons, including the second defendant Mr Burke, on 24 January 2008: pleadings par 21;

  3. A NSW police report may possibly have been sent to Mr Burke on 25 March 2008: pleadings par 40;

  4. A letter from Mr Burke dated 12 June 2008 stated that “they had assurances from RN the fraud trainer was investigated plus there was a very high CHAPS compliance rate”: pleadings par 46;

  5. An auditors’ report of July/August 2008 may have shown that there was “CHAPS Ministerial agreement outside of guidelines” by Mr Burke (although it is unclear what this might mean): pleading par 47;

  6. The two defendants “played parts in” Racing NSW’s “$110m or greater theft”: pleading par 82. In this regard, it can be noted that the allegations in the pleadings only supported the contention that the “parts” played by the defendants were in substance quite limited and would not properly be found to have caused, in the sense identified in s 5D of the Civil Liability Act, the loss and damage claimed by Mr Golden. For example, the conduct alleged against the defendants generally did not involve their doing more than:

  1. being the Prime Minister or the Minister responsible for the CHAPS in 2007 and 2008;

  2. Mr Howard being deceived by Racing NSW in relation to the approval of the CHAPS or an extension of the CHAPS;

  3. Mr Burke receiving from Mr Golden and possibly NSW Police reports concerning whether there was fraudulent activity in relation to the CHAPS;

  4. Mr Burke receiving or accepting a “$9m Audit report”; and

  5. Mr Burke writing a letter in June 2008 referring to the information received by him concerning the CHAPS.

  1. These contentions did not appear to me to provide a foundation for concluding that any other relevant tortious liability was, or could be, pleaded by Mr Golden.

Conclusion on whether a reasonable cause of action disclosed

  1. Even allowing for the fact that Mr Golden was not a lawyer and had not, up to this point in the proceedings been represented, I could not discern from the material to which he drew attention or from his submissions that there was likely to be any viable tortious claim which he had pleaded or could plead against either of the two defendants, if he were given the chance to replead, whether in deceit, negligence or any other tort. That is not to say that there may not have been some fraudulent or otherwise tortious conduct by persons other than the defendants involved in the CHAPS during 2007 and 2008 or later. That is a matter about which I can express no view, because Mr Golden has not named those other persons as defendants, they have not been given an opportunity to be heard on this or any other relevant application and some of the allegations made by Mr Golden against those other persons are very serious. It is to be noted that allegations in a pleading of any fraud upon which a plaintiff relies must be pleaded with precision and, under UCPR r 15.3, particulars of the fraud must be given. Furthermore, at any trial of proceedings, allegations of fraud would need to be proved to the requisite standard, taking into account the matters referred to in s 140(2) of the Evidence Act 1995 (NSW) where relevant.

  1. For all of these reasons, I am of the view that Mr Golden’s statement of claim discloses no reasonable cause of action against the two named defendants, for the purposes of UCPR r 14.28(1)(a), and that no reasonable cause of action is disclosed in the proceedings against those defendants, for the purposes of UCPR r 13.4(1)(b). Furthermore, given the pleadings and the material to which Mr Golden has directed my attention, I am satisfied that, in respect of the two defendants, there is no reasonable cause of action which could be pleaded by him even if leave to replead were given.

Are the proceedings vexatious, embarrassing or an abuse of process?

  1. Many of the allegations in the pleadings and some of the prayers for relief involve very serious allegations against persons not named as defendants and some are confusing and quite unclear as to what precisely is being alleged against whom. These deficiencies are likely to have the consequence that the proceedings, if they proceeded, would be characterised by substantial delay and would be productive of serious and unjustified trouble or harassment, not only to persons named as parties but also to other persons whose conduct is impugned in intemperate language often without any appropriate identification of how the defendants would be legally liable in relation to that conduct. Examples of the problematic allegations and language are spread throughout the prayers for relief and pleadings and particulars in the statement of claim, and these have been quoted in full or summarised above. It is unnecessary to repeat them here.

  2. In addition, given the terms in which the claims for relief and the pleadings and particulars are expressed, it can be concluded that some parts are unintelligible, ambiguous, or so imprecise that the defendants are not properly informed of the substance of the case they are required to meet.

  3. Furthermore, as noted in the table provided at [11] and as implicitly accepted by Mr Golden in par 82 of the pleadings, he has attempted to raise essentially the same underlying issues in a significant number of earlier proceedings in this Court which have been unsuccessful, except for the setting aside in Golden v V’landys [2016] NSWCA 300 of the decision of Mr V’landys of 24 June 2011 to warn off the plaintiff from all race tracks controlled by Racing NSW. In my view, Mr Golden’s attempts to raise these issues in successive proceedings is contrary to the principles of finality and the timely and efficient administration of civil justice.

  4. In these circumstances, I am satisfied that the proceedings are vexatious and involve an abuse of process and that the statement of claim has a tendency to cause embarrassment, prejudice and delay.

Summary dismissal

  1. In determining whether to dismiss these proceedings I have considered the most appropriate way in which to give effect to the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In doing so I have paid particular attention to the objects set out in s 57 of that Act: the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of resources; and, the timeliness and cost of the proceedings. I have also had regard to the dictates of justice including, in addition to ss 56 and 57, the use that Mr Golden has made in these and previous proceedings of the opportunity to pursue a claim against these and other defendants and the degree of injustice in the circumstances that would be suffered by Mr Golden and by the two named defendants as a consequence of any order made in these proceedings.

  2. Even bearing in mind the caution which should be exercised in dismissing proceedings summarily under UCPR r 13.4(1), I am nonetheless persuaded that it is appropriate in all the circumstances to dismiss these proceedings for failing to disclose a reasonable cause of action against either of the two defendants. As noted above, not only has Mr Golden failed in the statement of claim to plead any reasonable cause of action against either defendant in respect of the loss and damage allegedly suffered by him, he has not identified any substantial material which would indicate that he has any reasonable prospect of being able to plead such a cause of action, if given a further opportunity to do so.

  3. In addition, in light of the other matters dealt with above, I am also of the view that these proceedings are vexatious and an abuse of process and the statement of claim has a tendency to cause embarrassment, in the technical sense explained above, as well as prejudice and delay. These deficiencies infect almost every substantive aspect and paragraph of the statement of claim. For these reasons and independently from whether any reasonable cause of action is disclosed in the proceedings, in my view, the statement of claim should be struck out as being embarrassing and the proceedings should be dismissed as an abuse of process and vexatious.

  4. Since the proceedings are to be dismissed, it is unnecessary formally to strike out the statement of claim.

Additional material provided without leave

  1. On a number of occasions after the hearing of the matter was completed and I had reserved my decision, Mr Golden provided additional material to my Associate by email, copied to the solicitor for the defendants. The Court is entitled to refuse to accept that material and to disregard it entirely. It is a misconceived impression that parties may file supplementary material after the conclusion of oral argument, without leave being given beforehand; the hearing is the time and place to present evidence and argument, whether written or oral: Kuruppu v R [2021] NSWCCA 261 at [223] (Wright J, Meagher JA and Fagan J agreeing) citing Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 258; [1981] HCA 20. As no leave was granted to provide further material, I have not viewed or taken the material provided into account.

Costs

  1. The defendants have been entirely successful and, in the ordinary course, costs would follow the event. The defendants have, however, sought a gross sum costs order and Mr Golden is not represented. In these circumstances, I propose to stand over the question of costs and the further consideration of the remaining aspects of the notice of motion for directions on a date which will give the parties time to consider these reasons before being required to make submissions on those matters.

Orders

  1. For these reasons, the orders of the Court are:

  1. Subject to order (2), pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed.

  2. The question of costs of the defendants’ notice of motion filed on 24 April 2023 and of the proceedings, together with consideration of the remaining aspects of that notice of motion are listed for directions on 6 December 2023 before Wright J.

**********

Endnote

Decision last updated: 22 November 2023

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Cases Citing This Decision

1

Golden v Howard (No 2) [2024] NSWSC 172
Cases Cited

39

Statutory Material Cited

3

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48