Macatangay v State of New South Wales

[2012] NSWCA 341

Court of Appeal

New South Wales

Case Title:

Macatangay v State of New South Wales

Medium Neutral Citation:

[2012] NSWCA 341

Hearing Date(s):

On the papers

Decision Date:

25 October 2012

Jurisdiction:

Before:

Macfarlan JA; Sackville AJA; Tobias AJA

Decision:

1. The applicant's notice of motion filed on 8 October 2012 seeking leave to file a further application be dismissed.

2. Direct the applicant, if she wishes to do so, to file with the Court within 14 days of the date of publication of these reasons a written submission as to why the Court should not make a vexatious proceedings order.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - repetitious applications - alleged abuse of process - no arguable point to support complaint - applicant to show cause why a vexatious proceedings order should not be made

Legislation Cited:

Child Protection (Offenders Registration) Act 2000
Vexatious Proceedings Act 2008

Cases Cited:

Macatangay v State of New South Wales (NSWCA, Handley and Sackville AJJA, unreported, 20 September 2010)
Macatangay v State of New South Wales [2012] NSWCA 108
Macatangay v State of New South Wales [2012] NSWCA 305

Texts Cited:

Category:

Procedural and other rulings

Parties:

Miguela Alvarez Macatangay (Applicant)
State of New South Wales (Respondent)

Representation

- Counsel:

Counsel:
N/A

- Solicitors:

Solicitors:
N/A

File number(s):

CA2005/20144 or 2005/269316

Decision Under Appeal

- Court / Tribunal:

- Before:

Grove J

- Date of Decision:

09 February 2007

- Citation:

Macatangay v State of New South Wales [2007] NSWSC 57

- Court File Number(s)

2005/20144

Publication Restriction:

JUDGMENT

1. THE COURT: On 21 September 2012, the Court dismissed a notice of motion (Macatangay v State of New South Wales [2012] NSWCA 305) filed by Miguela Alvarez Macatangay, the applicant, on 24 August 2012 seeking leave to file a further application in the proceedings. We stated in our judgment that the applicant had provided nothing of substance in addition to which was before the Court on 16 April 2012.

2. On 8 October 2012, the applicant filed another notice of motion seeking leave to file a further application in the proceedings in relation, she asserted, to her claim against the Department of Education in prohibiting her working for it "in any capacity". In fact the only capacity in which she has been prohibited from working for the Department is as a teacher.

3. Her notice of motion is supported by an affidavit sworn by her on 8 October 2012 and by a written submission. Her complaint once again is that she has been prohibited from working as a high school mathematics teacher or in any teaching capacity by the Department and that she has been placed on the Department's "confidential register". She now asserts for the first time that by being placed on that register the Department has, in effect, declared her as a "registrable person" within the meaning of the Child Protection (Offenders Registration) Act 2000 (the Child Protection Act) as someone who is prohibited from being employed in any child related work. This, apparently is the additional aspect of her case not previously alleged.

4. It is true that the applicant was placed by the Department on its confidential list or register. However, this was part of the settlement of her proceedings in the Industrial Relations Commission of NSW which has been the subject of the previous litigation between the parties. It was done for her own protection. Until now, there has never been any suggestion by the applicant that she has been declared a "registrable person" pursuant to the Child Protection Act. Being placed by the Department on its confidential list or register does not, and never has, made her a "registrable person" within the meaning of that Act.

5. It follows that the applicant has not advanced any arguable point to support her complaint. Her notice of motion filed on 8 October 2012 seeking leave to file a further application is dismissed.

6. The history of this matter is narrated in the Court's judgments of 20 September 2010 and 16 April 2012. The applicant's application dealt with in those judgments as well as in that of 21 September 2012 arguably fall within sub-paragraphs (a) and (c) of the definition of "vexatious proceedings" in s 6 of the Vexatious Proceedings Act 2008 (the Act).

7. Pursuant to s 8(4) of the Act this Court may make a vexatious proceedings order of its own motion where it is satisfied that the applicant has frequently instituted vexatious proceedings in Australia.

8. In the foregoing circumstances the Court is minded to make a vexatious proceedings order against the applicant staying all proceedings in New South Wales already instituted by her in matters Nos 20144 of 2005 and 269316 of 2005 and, further, prohibiting her from instituting any further proceedings in New South Wales relating to or having any connection with any of the claims or complaints made by her in those matters.

9. However, before making any such order the applicant is entitled to show cause why such an order should not be made. The Court therefore directs her, if she wishes to do so, to file with the Court within 14 days of the date of publication of these reasons a written submission as to why the Court should not make a vexatious proceedings order in the terms of that foreshadowed in the preceding paragraph. The Court will then determine whether or not to make such an order on the papers.

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