Slater v The Trustees of the Roman Catholic Church for the Archdioceses of Canberra and Goulburn

[2002] NSWSC 755

CITATION:	Slater v The Trustees of the Roman Catholic Church for the Archdioceses of Canberra and Goulburn [2002] NSWSC 755
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20010 of 2002
HEARING DATE(S):	20 August 2002
JUDGMENT DATE:	28 August 2002
PARTIES :	Merrilee Margaret Slater v The Trustees of The Roman Catholic Church for the Archdioceses of Canberra and Goulburn
JUDGMENT OF:	Master Malpass

COUNSEL :	N/A (Plaintiff) Mr D R Stack (Defendant)
SOLICITORS:	In Person (Plaintiff) Deacons (Defendant)
CATCHWORDS:	Declaration endorsed upon Certificate of Marriage and certificate itself allegedly not signed by the minister - statutory construction of celebration of marriage requirements - common law presumption - effect of subsequent events (including dissolution of marriage and other proceedings) - abuse of process - validity of marriage - remoteness of damage - hopeless and untenable claim.
LEGISLATION CITED:	Births, Deaths and Marriages Registration Act 1995, s 49, s 49 (2). Marriage Act 1899-1956, Parts 11 and 111, s 28. Marriage Act 1961.
CASES CITED:	Haines v ABC [1995] 43 NSWLR 404. Re Peatling (deceased) (1969) VR 214. Rippon v Chilcotin Pty Ltd [2001] 53 NSWLR 198. Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275. Slater v Honourable Justice Higgins [2001] FCA 549.
DECISION:	See paragraph 38.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Wednesday 28 August 2002

20010 of 2002 Merrilee Margaret Slater v The Trustees of the Roman Catholic Church for the Archdioceses of Canberra and Goulburn

JUDGMENT

1 Master: On 4 January 2002, the plaintiff filed a Statement of Claim. On 20 May 2002, she filed another Statement of Claim. For present purposes I shall treat it as the Amended Statement of Claim.

2 The plaintiff appears in person. The defendant is sued in respect of inter alia what is said to be a failure of duty by one of its priests (Father Crowe).

3 The defendant has filed a Notice of Motion. It seeks the summary disposition of the proceedings. This application was heard on 20 August 2002.

4 In support of the application, an affidavit sworn by Mr Smeaton has been read. In opposition to it, the plaintiff relies on her affidavits and unsworn statement. In addition to this material, a number of documents have been tendered.

5 The plaintiff’s process purports to propound a number of causes of action. All of them appear to stem from complaint as to what happened on 2 May 1959 when the plaintiff went through a ceremony of marriage with Walter Laurence Slater before Father Crowe. Largely, such complaint has to be gleaned from what appears in paragraph 1 of her process.

6 The plaintiff complains that there was a breach of provisions of the Marriage Act 1899-1956 (the Act). It has been replaced by Commonwealth legislation (the Marriage Act 1961). What appears in her process throws up confusion. Strictly speaking, paragraph 1 alleges that a declaration in the form of the Fourth Schedule to the Act which should have been endorsed upon the Certificate of Marriage was not signed by the minister. However, paragraph 1 also contains the allegation “Plaintiff discovered Marriage Certificate not signed in 2001” and the alleged certificate is annexure “A” thereto. The alleged breach of duty is said to have invalidated the marriage and led inter alia to her living in sin and giving birth to seven illegitimate children.

7 The defendant does not admit the failure to sign both the certificate and the declaration. There is no evidence before the court that the declaration was not signed. The declaration is not in evidence. The absence of such evidence has not been adequately explained. Section 7 of the Act required transmission of the original certificate to the relevant registrar. There is material which evidences that this was done. The marriage has been registered. It may be that the certificate and declaration are no longer available.

8 The defendant has put in evidence a copy of the parish marriage certificate. The signature of the priest appears on that document. It has also tendered a certificate issued pursuant to s 49 of the Births, Deaths and Marriages Registration Act 1995 (Exhibit 4). The plaintiff has tendered what purports to be a copy of a Certificate of Marriage which does not bear any signature of minister or registrar. The circumstances of the coming into being of that document are not known and it may be merely an incomplete copy document.

9 I should add, that there is evidence that following many years of cohabitation and the birth of six of the seven children, the marriage was dissolved in 1976 on the plaintiff’s petition (in the Supreme Court of the ACT). Subsequently, the plaintiff has prosecuted litigation in the Supreme Court of the ACT, the Family Court, and the Federal Court founded on validity of the marriage.

10 I now turn to the plaintiff’s process itself. There are purported claims which are not causes of action known at law. To the extent that any may be said to be known to law, largely it does not plead the necessary elements of each of the causes of action. It can be described as a confused document replete with erroneous and inconsistent assertions. Generally speaking, it may be largely said to not comply with the pleading rules and to have grave pleading deficiencies. For these reasons alone, it is liable to be struck out.

11 The plaintiff relies on sections 5 and 6 of the Act. These provisions appear in Part 11 of the Act which is headed “Celebration of Marriages”. It is convenient at this stage to mention certain of these provisions. Subsection (1) of s 5 prohibits the celebration of a marriage unless and until there has been the prescribed declaration (made on oath or solemn affirmation) before the minister or registrar. Subsection (2) requires the declaration to be endorsed upon the Certificate of Marriage and signed by the parties and the minister or registrar. Subsection (3) is concerned with the form of the certificate. Section 6 is concerned with what is a legal and valid marriage (where the marriage is celebrated by such minister or registrar after oath or solemn affirmation so made).

12 If it be assumed that the declaration was not in fact signed by Father Crowe, the court has not been referred to any authority which supports the plaintiff’s claim as to invalidity of the marriage. Indeed, this is not surprising. She has overlooked the provisions of Part 111 of the Act (inter alia s 13 and s 15). These provisions (which come under the heading “Marriages not to be Avoided or Affected for Certain Reasons”) make any such claim untenable.

13 The defendant has made a number of submissions on the basis that the case of the plaintiff is really that the marriage certificate itself was not signed by the priest. In relation to such a claim, it advances a number of reasons why such a claim must fail. One of them is that the claim of invalid marriage is untenable.

14 Subsection (2) of s 49 of the Births, Deaths and Marriages Registration Act 1995 provides that a document such as Exhibit 4 is admissible in legal proceedings as evidence of the entry to which the certificate relates and of the facts recorded in the entry. Accordingly, this certificate of itself affords evidence of a valid marriage.

15 The circumstances of this case also give rise to the common law presumption of validity of marriage. There was a ceremony of marriage followed by cohabitation as husband and wife (see inter alia Re Peatling (deceased) (1969) VR 214).

16 In addition to the matters mentioned there are the previous proceedings brought by the plaintiff. Some earlier mention has been made of them.

17 In the proceedings brought by the plaintiff for the dissolution of marriage, the plaintiff gave evidence that she was married to the respondent at Gundagai on 2 May 1959 according to the rites of the Catholic Church and she tendered her marriage certificate. A finding was made that the marriage had been proved. She was given custody of two of the then six children. Orders for maintenance were made and the question of property settlement was reserved.

18 She then sought orders for the finalisation of property settlement. The proceedings were then transferred to the Family Court. Orders were made by Treyvaud J to effect a division of property. She brought an appeal to the Full Court which produced some limited success.

19 In 1994, she took further action in the Supreme Court seeking orders for a transfer of Mr Slater’s interest in a property owned by them and for compensation. Her application was dismissed by Higgins J. Another application seeking the same relief was dismissed by Miles CJ. He also ordered that no further application be filed without an order of a judge in chambers.

20 Despite that order, a further application was brought seeking a settlement of property. It was also dismissed and there were subsequent unsuccessful appeals.

21 This was followed by the bringing of further applications against four judicial officers of the Federal Court. This activity led to the Federal Court declaring her to be a vexatious litigant. Again, it was ordered that she may not institute proceedings without the leave of a judge. It appears that this position was reached after having regard to inter alia her persistent refusal to accept the decisions of courts and the expectation that she would continue to seek to litigate hopeless matters (see Exhibit 3 – Slater v Honourable Justice Higgins [2001] FCA 549).

22 I may digress to say, that it is not an unreasonable apprehension that this Court may now be facing similar litigious activity.

23 Apart from arguing that the allegation of invalidity is untenable as a matter of fact, the defendant relies on arguments founded on what is said to be the proper construction of ss 5 and 6 of the Act. Emphasis is placed on subsection (4) of s 5 and the distinction drawn between celebration of marriage and Certificate of Marriage.

24 The defendant submits that these provisions make it clear that any shortcomings in the certificate do not affect the validity of the marriage. It is said that the certificate is merely a document that has to be signed after celebration of the marriage.

25 Subsection 4 follows the three subsections earlier referred to. The legislative scheme requires that the prescribed declaration must precede the celebration of the marriage. Subsection (4) provides that the Certificate of Marriage is to be signed by the minister or registrar and by the parties and by the witnesses after the celebration of the marriage. Subsections (5) and (7) require the delivery of a copy to one of the parties and the transmission of the original to the registrar.

26 Section 6 provides that every marriage celebrated by any such minister or registrar as aforesaid, after oath or solemn affirmation so made, shall be a legal and valid marriage to all intents and purposes. The making of the oath or solemn affirmation is the manner required by subsection (1) of s 5 for the making of the prescribed declaration.

27 Before leaving the consideration of the provisions of the Act, I should refer to again what appears in Part 111. These provisions reveal an intention that non-compliance with certain of the statutory requirements attending the celebration of the marriage do not operate to invalidate the marriage celebrated.

28 It seems to me that the signing of the certificate was intended to be an event that takes place subsequent to the celebration of the marriage and that it was intended that it perform an evidentiary function (as opposed to being an integral part of the celebration of marriage).

29 It has not been suggested that there are any decided cases which may assist the court in its deliberations on the defendant’s submission. The court is left to embark on a somewhat anachronistic exercise in the consideration of legislation which has not been in force for at least forty years. Be that as it may, it seems to me to be clear that any failure on the part of the minister or the registrar to sign the Certificate of Marriage would not bring about invalidity of that marriage.

30 In the circumstances of this case, I am satisfied that the plaintiff’s allegation that the marriage is invalid is untenable.

31 The defendant also says that the proceedings are an abuse of process. This submission has regard to the past litigation brought by the plaintiff. It is accepted that the doctrines of issue estoppel and res judicata cannot be called into aid by the defendant. In support of the submission, the court has been referred to a number of cases (including Haines v ABC [1995] 43 NSWLR 404 and Rippon v Chilcotin Pty Ltd [2001] 53 NSWLR 198).

32 In Haines, Hunt CJ at CL quoted observations made in Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275. The observations were as follows:-

“ ‘The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed. An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel.
Underlying the power that courts have assumed to stay or dismiss proceedings for abuse of process is a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. There is, in my opinion, another element to be considered and that is the necessity to maintain confidence in and respect for the authority of the courts.’ "

33 The present case differs in one sense from the cases to which the court has been referred. In this case the plaintiff seeks to change her position. Whilst in the past litigation in other courts she has litigated and obtained a finding of validity as to the marriage and sought relief on the basis of such a finding, she now seeks to bring this claim for damages on the footing that the marriage was invalid.

34 Whilst this question cannot be regarded as having been fully argued by the parties, the submissions made by the defendant seem to me to be persuasive in the circumstances of this particular case.

35 Whilst what has already been said suffices to dispose of this matter, for completeness, I should mention two other matters raised by the defendant. It is said that the relevant limitation period has expired. Although this defence has not been pleaded, in the circumstances of this case it was certainly a defence available to the defendant. It is also said that there is a remoteness of damage problem (a question which only arises if there be an invalid marriage). There seems to be substance in that submission. The plaintiff looks to the absence of the signature of the priest as the cause for her alleged loss and damage. Whilst there is much confusion, some of her complaints seem to be that her matrimonial relationship was not recognized, she lost everything from her illegal marriage in the court and had no entitlements under it, she lost her house (it was allegedly damaged by fire), she suffered a loss of enjoyment of life, she was discriminated against, she was defamed, it caused her pain and suffering, she had trouble with the police (and others) and had problems with “a hit-man”. It is difficult to see how the many problems of which she complains could flow from the alleged missing signature. The task is made more difficult by reason of her allegation that she did not become aware of it until 2001. It may be added that many of her complaints are clearly erroneous as a matter of fact.

36 The claim is clearly hopeless and an abuse of process. The defendant has discharged the requisite onus to obtain summary relief. I am satisfied that it is one of those clear cases which justify summary disposition. It would be a disservice to the parties and a waste of the valuable time of this Court to allow these proceedings to remain on foot.

37 I may add that what the plaintiff has done in and about these proceedings may have been regarded as the committing of an offence under s 28 when the Act was in force.

38 The proceedings are dismissed. The defendant does not seek an order for costs. Accordingly, I make no order as to the costs of the proceedings. The Exhibits may be returned.

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Last Modified: 08/29/2002