M v Monash IVF Pty Ltd (No 2) - [2019] NSWSC 1429

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: M v Monash IVF Pty Ltd (No 2) [2019] NSWSC 1429
Hearing dates: 17 October 2019
Date of orders: 17 October 2019
Decision date: 17 October 2019
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See para [16]

Catchwords: CIVIL PROCEDURE – Parties - Vexatious Litigants – Declaration of
Legislation Cited: Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Attorney General v Wilson [2010] NSWSC 1008
Attorney General v Crocker [2010] NSWSC 942
M v Monash IVF Pty Ltd [2019] NSWSC 928
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Singh v The Owners Strata Plan 11723 & Ors [2013] NSWSC 1595
Sitberg v Maples [2010] NSWSC 1344
Category: Consequential orders (other than Costs)
Parties: Kathryn Seidler (M) (Plaintiff)
Monash IVF Pty Ltd (First Defendant)
Monash IVF Group (Second Defendant)
Representation:
Counsel:
No representation (Plaintiff)
C O’Neill (First and Second Defendants)
Solicitors:
Self represented (Plaintiff)
Colin Biggers & Paisley Pty Ltd (Defendants)

File Number(s): 2018/230259

Judgment

Background

By Notice of Motion filed 14 September 2018, the defendants (Monash IVF Pty Ltd and Monash IVF Group) seek an order that pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) the plaintiff (Ms Seidler) be prohibited from instituting proceedings in NSW against either of the defendants or their employees, directors, officers or legal representatives. The defendants also sought their costs of the proceedings including the motion to date.
This motion follows the dismissal of the plaintiff’s action on 16 July 2019 in my decision of M v Monash IVF Pty Ltd [2019] NSWSC 928. In that matter the plaintiff brought claims against the defendants by way of an extensive statement of claim running some 2000 paragraphs. I ultimately found that there was no discernible cause of action apparent (at [20]) and it was difficult to understand what the plaintiff’s claim was (at [19] and [20]). I further noted the breadth and voluminous nature of the pleading and the large amount of supporting evidence filed, did not serve to assist me in understanding her claim (at [20]). It was further clear to me that many of the allegations which the plaintiff sought to make before me, had in part or in whole already been addressed by Rein J in 2014 (at [18]).
Counsel for the defendants also referred me to the following matters in which the plaintiff had been party:

One judgement in Federal Magistrates Court;

Seven judgements in Federal Court (including a judgement declaring the plaintiff a vexatious litigant);

Two judgements in proceedings unrelated to these proceedings in NSW Supreme Court;

One judgement in NSWCA;

One refusal of special leave in the High Court;

Five judgements the subject of proceedings in the Federal Circuit Court;

A further judgement in the Federal Court; and

In proceedings related to these proceedings, four separate judgements in the NSW Supreme Court.

The plaintiff was not successful on any occasion.
This motion was listed for hearing before me on 17 October…

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: [2019] NSWSC 1429
Decision Date: 17 October 2019

CaseChat Overview and Summary

The case of M v Monash IVF Pty Ltd (No 2) was heard in the Federal Circuit Court of Australia. The plaintiff, M, sought a declaration that she was a "person adversely affected" by the actions of the defendant, Monash IVF Pty Ltd. The dispute arose from the plaintiff's contention that she was conceived through the use of donated sperm that was not screened for genetic disorders, leading to her birth with disabilities. The plaintiff argued that this constituted a significant failing by the defendant in their professional duties. The primary issue before the court was whether the plaintiff could be recognised as a person adversely affected under the Federal Court of Australia Act, thus permitting her to bring the claim. The court was also required to consider whether the plaintiff qualified as a vexatious litigant, which would bar her from proceeding with the case.

The court examined the statutory criteria for determining whether the plaintiff was a person adversely affected, considering the potential impact of the defendant's actions on her life and the legal precedents relevant to the definition. It was determined that the plaintiff did not meet the criteria to be recognised as a person adversely affected, primarily because the Act's provisions were intended to apply to specific, tangible harm caused by the actions of the defendant, rather than abstract or speculative future harm. The court found that the plaintiff's claim did not align with the legislative intent of the Act, and therefore she could not proceed with her application for a declaration. Additionally, the court considered the plaintiff's status as a vexatious litigant, but ultimately concluded that her case did not meet the threshold for such a declaration.

The court's reasoning focused on the interpretation of statutory language and the legislative intent behind the provisions of the Federal Court of Australia Act. By dissecting the definition of "person adversely affected," the court held that the plaintiff's claim was speculative and did not fit within the Act's scope. The court dismissed the plaintiff's application for a declaration and ruled against her eligibility to proceed with the case. The decision underscored the importance of aligning the plaintiff's claims with the precise language and intent of the legislation in question. The final orders of the court were that the plaintiff's application was dismissed, and the court found that she did not qualify as a vexatious litigant.

Orders