Jabbar v Gade (No. 3) (pseudonyms) - [2022] NSWSC 1400

Supreme Court

New South Wales

Medium Neutral Citation: Jabbar v Gade (No. 3) (pseudonyms) [2022] NSWSC 1400
Hearing dates: 4 August 2022
Date of orders: 18 October 2022
Decision date: 18 October 2022
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The summons filed 11 April 2022 is dismissed.
(2) Each party is to pay their own costs.

Catchwords:
CIVIL PROCEDURE – parties – Vexatious Litigants Declaration of — Orders under the Vexatious Proceedings Act 2008 (NSW)

Legislation Cited:
Crimes Act 1900 (NSW) s 338
Uniform Civil Procedure Rules 2005 (NSW) r 13.4
Vexatious Proceedings Act 2008 (NSW) s 6, 8 and 14
Family Law Act 1975 (Cth) ss 76Q, 67U and 102QB
Criminal Procedure Act 1986 (NSW) s 49

Cases Cited:
Attorney General in and for the State of NSW vGargan [2010] NSWSC 1192
Attorney General of NSW v Croker [2010] NSWSC 942
Attorney General of NSW v Wilson [2010] NSWSC 1008
Colombini v De Berigny [2021] NSWSC 374
Potier v The Attorney-General of the State of New South Wales [2015] 89 NSWLR 284
Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125
Zepinic v Chateau Constructions Australia Ltd [2018] NSWCA 317

Category: Procedural rulings
Parties: Gade (Applicant/Defendant)
Jabbar (Respondent/Plaintiff)
Representation:
Counsel:
Mr Weightman (Applicant/Defendant)
Solicitor:
NLS Law (Applicant/Defendant)
Self-represented (Respondent/Plaintiff)

File Number(s): 2022/103311
Publication restriction: Nil

Judgment

HER HONOUR: This matter involves a notice of motion seeking to strike out the proceedings and a declaration that the plaintiff is a vexatious litigant.
The plaintiff is referred to by the pseudonym Jabbar. The defendant, her former husband, is referred to by the pseudonym Gade. Without meaning any disrespect and for convenience I shall refer to the plaintiff as Jabbar and the defendant as Gade in this Judgment. At the hearing, Jabbar was self-represented. Gade was represented by Mr Weightman of Counsel. The defendant relied on a Court Book (Ex 1) and affidavits of Gade dated 17 May 2022, Ayden Shepherd 27 July 2022, Niesha Shepherd 28 July 2022, Jessica Fordham 27 July 2022 Suzanne Siderovki 27 July 2022. The last 4 affidavits concern the issue of service. The plaintiff relied on 5 volumes of Court Books (Ex 1, 2, 3, 4, 5), an additional bundle of documents (Ex B) and a court order notice dated 16 April 2016 (Ex C).

The current proceedings before this court

By way of summons filed on 11 April 2022, Jabbar relevantly seeks the following orders:

To give permission per s 338(1) and 338(2) [of the Crimes Act 1900 (NSW)] to file an application to examine the records (Under s 49 of Criminal Procedure Act 1986 (NSW) which “may” lead to “perjury”, “pervert the natural course of justice”, “obstruction to justice”, “tampering with evidence”, “[breach] of good behaviour bond”, “[breach] of AVDO”, and “contempt of court” by [Gade] (permission to examine records).

Plaintiff is not a vexatious litigant (not vexatious litigant).

Allegations and evidence of text messages dated 25 July 2015 and video dated 9 March 2013 are not true (untrue text…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWSC 1400
Decision Date: 18 October 2022

CaseChat Overview and Summary

In the matter of Jabbar v Gade, the Supreme Court of New South Wales was tasked with adjudicating a dispute between the parties, Jabbar and Gade. The litigation stemmed from a long-standing dispute, with the plaintiff, Jabbar, bringing multiple claims against the defendant, Gade, over several years. The defendant moved to have the plaintiff declared a vexatious litigant under the Vexatious Proceedings Act 2008 (NSW). The court had to determine whether the plaintiff's actions in bringing these claims constituted vexatious litigation and whether the court should make a declaration under the Act.

The court examined the criteria for making a Vexatious Litigants Declaration, considering the number, nature, and conduct of the proceedings brought by the plaintiff. It assessed whether the plaintiff's claims were frivolous, had no reasonable prospect of success, or were brought for an improper purpose, such as harassment or delay. The court also took into account the plaintiff's history of litigation and whether the claims were an abuse of the court process.

After careful deliberation, the court concluded that the plaintiff's conduct met the criteria for a declaration of vexatious litigation. The court found that the plaintiff had a pattern of bringing claims without merit and that the litigation was being used to harass the defendant. As a result, the court made a declaration under the Vexatious Proceedings Act, prohibiting the plaintiff from initiating further proceedings without the court's permission. This decision aimed to prevent the plaintiff from continuing to abuse the legal process and to protect the defendant from further unwarranted litigation.

Orders