Seidler v Royal Melbourne Institute of Technology
[2016] FCCA 1205
•20 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEIDLER v ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY | [2016] FCCA 1205 |
| Catchwords: PRACTICE AND PROCEDURE – Vexatious proceedings – considerations relevant to making an order under s.88Q of the Federal Circuit Court of Australia Act 1999. |
| Legislation: Australian Human Rights Commission Act 1986, s.46PO |
| Cases cited: Seidler v University of New South Wales [2010] FMCA 887 Seidler v University of New South Wales [2011] FCA 640 Seidler v University of New South Wales [2011] FCA 830 Seidler v University of New South Wales [2011] FCA 1156 Seidler v University of New South Wales [2011] FCA 1321 Seidler v University of New South Wales (No 2) [2011] FCA 1326 Seidler v University of New South Wales (No 3) [2011] FCA 1330 Seidler, in the application of Kathryn Seidler [2013] FCA 125 Seidler v Carroll & O’Dea (No 2) [2013] NSWSC 1172 Seidler v Carroll & O’Dea [2014] NSWCA 48 Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 |
| Applicant: | KATHRYN SEIDLER |
| Respondent: | ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY |
| File Number: | SYG 2756 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 19 February 2016 |
| Date of Last Submission: | 19 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms R. Sweet |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The applicant’s application filed on 9 October 2015 be dismissed.
Kathryn Seidler not continue with any proceeding commenced by her in this Court without the leave of the Court.
Kathryn Seidler not commence any proceeding in this Court without the leave of the Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2756 of 2015
| KATHRYN SEIDLER |
Applicant
And
| ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 9 October 2015 the applicant, Ms Seidler, filed an application under section 46PO of the Australian Human Rights Commission Act 1986 following the Australian Human Rights Commission’s termination of her complaint to it dated 15 July 2015. The respondent (“RMIT”) alleged in its response that the present proceeding is an abuse of process which ought to be stayed or dismissed. On 29 October 2015 RMIT filed an application in a case seeking, amongst other things, the summary dismissal of the proceeding and an order under s.88Q of the Federal Circuit Court of Australia Act 1999 (“Act”). That section relevantly provides:
88Q Making vexatious proceedings orders
(1)This section applies if the Federal Circuit Court of Australia is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)…
(2)The Federal Circuit Court of Australia may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the Federal Circuit Court of Australia already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Circuit Court of Australia;
(c)any other order the Federal Circuit Court of Australia considers appropriate in relation to the person.
…
(7)For the purposes of subsection (1), the Federal Circuit Court of Australia may have regard to:
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and
(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
In the alternative to the dismissal or staying of Ms Seidler’s action pursuant to s.88Q, RMIT sought its summary dismissal on the basis that it is frivolous or vexatious or an abuse of process and, further in the alternative, security for costs.
These reasons concern RMIT’s interlocutory application.
Evidence
In her affidavit affirmed on 28 October 2015 one of the solicitors representing RMIT, Ms Grover, deposed to other, earlier proceedings brought by Ms Seidler against the University of New South Wales (“UNSW”). Six of those proceedings, which were considered in Seidler v University of New South Wales [2010] FMCA 887 (“Seidler v UNSW (No 1)”); Seidler v University of New South Wales [2011] FCA 640 (“Seidler v UNSW (No 2)”); Seidler v University of New South Wales [2011] FCA 830 (“Seidler v UNSW (No 3)”); Seidler v University of New South Wales [2011] FCA 1156 (“Seidler v UNSW (No 4)”) (which related to Seidler v UNSW (No 2) and (No 3)) and Seidler v University of New South Wales [2011] FCA 1321 (“Seidler v UNSW (No 5)”), were dismissed. In Seidler v University of New South Wales (No 2) [2011] FCA 1326 (“Seidler v UNSW (No 6)”) the Federal Court dismissed various interlocutory applications filed by Ms Seidler in four of the earlier proceedings and in Seidler v University of New South Wales (No 3) [2011] FCA 1330 (“Seidler v UNSW (No 7)”) Perram J ordered that Ms Seidler could not continue or commence any proceeding in the Federal Court without the leave of that court.
In Seidler v UNSW (No 1) Nicholls FM described various materials filed by Ms Seidler in that case as “incomprehensible”, “impenetrable” or “irrelevant” (at [9] at [10]). Cowdroy J described the statement of claim filed by Ms Seidler in Seidler v UNSW (No 2) as embarrassing (at [90]) and “virtually incomprehensible” (at [33]). His Honour dismissed the proceeding as an abuse of process because, rather than appealing the decision of Nicholls FM in Seidler v UNSW (No 1), Ms Seidler had re-litigated those issues in Seidler v UNSW (No 2). In Seidler v UNSW (No 3), Flick J made the same order Cowdroy J had made in Seidler v UNSW (No 2) for the same reasons in that, in substance, Ms Seidler had sought to re-litigate the matters which had been resolved by Cowdroy J. Justice Flick observed that it would be difficult to envisage a more blatant abuse of process (at [34]). Seidler v UNSW (No 4) was Ms Seidler’s appeal from Cowdroy J and Flick J’s judgments and was described by Perram J in his reasons for dismissing it as a plain abuse of process (at [11]). In Seidler v UNSW (No 5), Ms Seidler sought leave to bring a late appeal against the decision of Nicholls FM in Seidler v UNSW (No 1). Justice Stone dismissed the application, observing that UNSW had been subjected to “a plethora of litigation well beyond what is reasonable or necessary in the circumstances” (at [33]).
In Seidler v UNSW (No 7) Perram J made the vexatious litigant orders referred to earlier at [4]. Before his Honour did so, however, Ms Seidler had “filed 14 interlocutory applications in four different sets of proceedings”. According to his Honour, many of these applications were “rambling, discursive and incoherent” (at [14]) and all were “wholly devoid of merit” (at [18]).
In Seidler, in the application of Kathryn Seidler [2013] FCA 125 (“Seidler v UNSW (No 8)”), Robertson J dismissed Ms Seidler’s application for leave to commence or continue with a proceeding against UNSW, it not being clear which course she was seeking to take. His Honour commented that the documents which Ms Seidler had filed were “incoherent and largely incomprehensible” and that the Federal Court ought not be required to deal with them further (at [7]).
The pleadings filed in another proceeding, which Ms Seidler commenced in the New South Wales Supreme Court, were described by McCallum J as rambling, incoherent and embarrassing (Seidler v Carroll & O’Dea (No 2) [2013] NSWSC 1172 at [3] and [4]). The proceeding was dismissed because it had not been prosecuted with due dispatch, in particular by reason of Ms Seidler’s failure to comply with orders requiring her to re-plead her claim in a comprehensible and acceptable manner.
Seidler v Carroll & O’Dea [2014] NSWCA 48 was Ms Seidler’s application for leave to appeal from Seidler v Carroll & O’Dea (No 2) as well as from two interlocutory rulings made by McCallum J in that proceeding. Justice McColl described Ms Seidler’s submissions in support of her application for leave to appeal as prolix, diffuse and as failing to identify any error which would attract the Supreme Court’s appellate jurisdiction (at [17]).
In this proceeding Ms Grover affirmed a second affidavit on 16 November 2015 and annexed to it various items of correspondence relevant to this case and the dispute underlying it. Included in those documents was correspondence addressed by Ms Seidler to the respondent or its solicitors, which tended to be abusive, aggressive and insulting. Also included was argumentative correspondence addressed to the Court. That correspondence was inappropriate.
In a third affidavit, affirmed 15 December 2015, Ms Grover annexed an email from Ms Seidler whereby Ms Seidler had sought to dictate, in what on review are revealed to have been discourteous terms, who ought to be RMIT’s solicitor on the record and who ought to correspond on its behalf. Ms Grover also referred in her third affidavit to the application in a case filed by Ms Seidler on 30 November 2015. In her initiating application, Ms Seidler sought a number of interim orders, including one concerning the suppression of her name in relation to this proceeding. The Court had, at the first court date on 30 October 2015, permitted Ms Seidler to apply to have that issue listed for hearing, however, her consequent and unnecessary application in a case filed on 30 November 2015 sought many more orders than the suppression of her name.
The Court also received other correspondence from Ms Seidler on 23 and 27 December 2015 in which she inappropriately advanced submissions on certain issues.
Consideration
Having regard, by virtue of s.88Q(7)(a) and (b) of the Act, to the decisions of the Federal Court and the New South Wales Supreme Court cited in Ms Grover’s first affidavit, I am satisfied that Ms Seidler has frequently instituted or conducted vexatious proceedings in Australian courts. That being so, the discretion provided in s.88Q(2) is enlivened. In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, Perram J discussed the factors relevant to the exercise of a discretionary power such as that provided by s.88Q:
… once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise. (at [12])
Although Official Trustee in Bankruptcy v Gargan (No 2) concerned the position prior to the commencement of provisions such as s.88Q, with respect Perram J’s comments apply equally well to s.88Q(1).
It is apparent that Ms Seidler has not learned the lessons of her earlier litigious efforts. She has, in this case, again commenced a proceeding in which the allegations made in the initiating application are embarrassing because their true meaning and intent cannot be discerned. Those allegations feature incomplete sentences, fragments of ideas, statements based on assumed knowledge of particular facts and fail adequately to identify why any particular cause of action is said to arise. Amongst those allegations the following appeared:
Indirect Disability Discrimination
…
Enrolments and or adjustments that are and were out of line with Austudy requirements and unapproved with DHS and a failure of the Academic Registrars Unit to seek approval for adjustments with DHS or the student who may be liable and thereby creating DHS appeal requirements which the applicant had to meet unassisted despite RMIT (in particular the Academic Registrar’s Unit) and OUA fault.
An overall lack of clarity and timeliness in reasonable adjustment plans indicative of a want of care, due diligence and or lack of appropriate risk management.
…
Sex and Disability Based Discrimination
…
Failing to accept the applicant’s proposed plan to resolve the issues (see the HREOC complaint affidavit).
…
Failure to ensure adjustment plans are and were compliant with Social Security law for Austudy and or failing to seek applicant and or DHS Cart Academic Re-assessment approval.
Failure to avail the applicant of her rights to make an informed choice to leave the school, defer or suspend her studies in preference of personal priorities and or for other schools that would consult with the applicant due to a change from online to face-to-face studies if the applicant elected to do this if an agreeable working plan and means of flexibly procuring adjustments could not be developed; and
Otherwise intentionally entrapping the applicant against her will in the online environment past enrolment dates elsewhere by intentionally delaying any school proposed adjustment plans which are not and would never be to the applicant’s agreement …
Amongst the application’s prayers for relief were the following:
13.Damages pertaining to the respondent failing to abide by the proposed path to resolution explicated in the originating complaint to HREOC which was the only risk the applicant was willing to accept in entirety, failing to consult on key aspects still requiring negotiation and agreement and instead making piece meal enrolment and adjustment changes without applicant or DHS approval despite potential DHS liabilities for the applicant are involved.
14.Orders pertaining to OUA (pending – requires new complaint due to ongoing facts and issues at hand after termination of the HREOC complaint further indicating OUA negligence, discrimination and aggravation).
Open University Australia (“OUA”) is not a party to this proceeding.
Not insignificantly in light of the issues raised by RMIT’s application in a case, the written submissions filed by Ms Seidler on 6 January 2016 dealt with that interlocutory application in only a passing way and focussed instead on Ms Seidler’s own complaints and claims. Relevantly to RMIT’s argument on s.88Q, Ms Seidler erroneously argued that the Court could not take account of her various earlier proceedings to which RMIT referred.
Ms Seidler’s initiating application is discursive, diffuse and obscure. The submissions filed in the present interlocutory application have similar qualities and fail to engage cogently or effectively with RMIT’s application for an order under s.88Q of the Act. Ms Seidler’s oral submissions to the Court exhibited the same shortcomings. I appreciate that in recent times Ms Seidler is better informed than previously because she has taken some law courses at RMIT and I also note her oral submission that she has learnt the lessons of her litigation against UNSW in this Court and the Federal Court and against Carroll & O’Dea in the NSW Supreme Court. Nonetheless, I am not persuaded that Ms Seidler truly has insight into the circumstances which led to Perram J’s orders or into why her conduct of this case does not represent a real improvement on her conduct of the earlier cases to which reference has been made. Most significantly, the present application displays the features which attracted to the documents which Ms Seidler filed in those earlier proceedings the criticisms which I have quoted, including that it is embarrassing in the legal sense. I have already noted the manner in which Ms Seidler corresponds.
As in Seidler v UNSW (No 8), the Court should not be required to deal further with the application. Nor should RMIT be vexed in this Court with such a pleading or with correspondence of the sort which Ms Seidler has directed to it and to its solicitors. Further, other litigants should not be required to meet pending or future claims brought by Ms Seidler in this Court unless the Court is satisfied that her conduct of any such proceedings will not be vexatious, embarrassing or an abuse of process.
Conclusion
The purpose of provisions such as s.88Q is to shield litigants and the Court from being adversely affected by wasteful and misconceived processes: Seidler v UNSW (No 7) at [13]. It is therefore appropriate to dismiss this proceeding pursuant to s.88Q(1) and, as the Federal Court did, order that Ms Seidler may not, without the leave of the Court, commence any proceeding in this Court or continue any other proceeding already commenced in this Court.
In those circumstances, it is not necessary to address the alternative relief which RMIT sought.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron.
Associate:
Date: 20 May 2016
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