Whitehead v Nickells

[2013] NSWSC 1466

Supreme Court

New South Wales

Medium Neutral Citation:	Whitehead v Nickells & ors [2013] NSWSC 1466
Hearing dates:	27 September 2013
Decision date:	27 September 2013
Before:	R A Hulme J
Decision:	Proceedings dismissed
Catchwords:	PROCEDURE - unrepresented plaintiff - power to dismiss frivolous or vexatious proceedings - no reasonable cause of action - abuse of process where proceedings foredoomed to fail - no point of principle
Legislation Cited:	Limitations Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Hamzy v Commissioner of Corrective Services (NSW [2011] NSWSC 120; (2011) 80 NSWLR 296
Category:	Principal judgment
Parties:	Kerri Whitehead (Plaintiff) Defendants (as named): Roslyn Winifred Nickells Graham and Dorothy Mills Keith Anthony Whitehead The Estate of Peter Mathews Joe James & bus company if NOT the owner driver Lama Choedak Rinpoche Peter Olive & common law wife Alison Kath Boswell The Estate of Peter Whitehead The Estate of Christopher Robert Beaumont Clare Harrington Julie & Owen Tinnon
Representation:	Counsel: Solicitors: Plaintiff in person Mr D Williams (Joe James) Mr P Wholohan (Bus company)
File Number(s):	2013/147224

Judgment

1. HIS HONOUR: On 27 September 2013 when sitting as the Common Law Division duty judge I made orders pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") dismissing the proceedings in these matters. The pressures of the list that day did not permit the opportunity to give formal reasons for making those orders. The following are my reasons.

1. Ms Kerri Whitehead commenced 12 different actions by the filing of statements of claim on 9 May 2013. There have been sundry documents filed since, including in most cases amended statements of claim.

1. The matters came before the Registrar on 16 August 2013 for directions. The Registrar stood the matters over until 27 September 2013 for the purpose of Ms Whitehead showing cause as to why the matters should not be dismissed. I understand the Registrar's concern was that none of the matters appeared to disclose a reasonable cause of action.

1. The Court has power to dismiss proceedings that are frivolous or vexatious; or where no reasonable cause of action is disclosed; or where the proceedings are an abuse of process: r 13.4 of the UCPR.

1. The relevant principles were helpfully collected by Johnson J in Hamzy v Commissioner of Corrective Services (NSW) [2011] NSWSC 120; (2011) 80 NSWLR 296 at 300:

[13] ... [A] very clear case is required before summary dismissal is granted and ... the power to make such an order should be sparingly employed: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner of Railways (NSW) [1964] HCA 69; 112 CLR 125 ( "General Steel" ) at 129; Webster v Lampard [1993] HCA 57; 177 CLR 598 at 602-3.

[14] The test is not whether the Plaintiff would probably fail in his action against the Defendants, it is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail: Webster v Lampard at 602. Where the court is asked to summarily dismiss a plaintiff's case, the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial and that an application to deprive him of that right will succeed only in the clearest of cases: Brimson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 at 944. Usually, a party is not to be denied the opportunity to place his case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. For a summary dismissal application to succeed, a high degree of certainty is required about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde [2000] HCA 41; 201 CLR 552 at 575-6.

[15] By bringing an application for summary dismissal, the Defendants undertake the burden of establishing that there is no triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The General Steel test remains the primary touchstone for such an application. The mere fact (if it be the case) that a plaintiff's prospects of success might be characterised as slim would not be enough to strike out a pleading: Esanda Finance Corporation Limited v Peat Marwick Hungerfords [1997] HCA 8; 188 CLR 241 at 271; Preston v Star City Pty Limited [1999] NSWSC 1273 at [31]. The question for determination is whether a reasonable cause of action is disclosed, that is a cause of action which has some chance of success, or which could conceivably give the Plaintiff a right to relief, or which, although weak, is properly debatable and has some apparent legitimate basis if the facts upon which it is alleged to be based are made good: Preston v Star City Pty Limited at [37].

1. In the present case I was satisfied that there was a high degree of certainty about the ultimate outcome of the proceedings. They are each foredoomed to fail and, for that reason, are abuses of process. Many cases involve hopeless prospects of overcoming limitations hurdles. There are also significant difficulties in discerning what the causes of action are.

1. To explain why this is so it is necessary to make reference to the proceedings individually. In doing so, and for convenience, I will refer to the matters by the last three digits of the file number and the details of the defendant(s) in the original statements of claim. I hasten to add that I am aware that in some of the amended statements of claim the defendant details are different.

224 - Roslyn Nickells

1. I do not propose to set out verbatim what appears in each statement of claim. But I will refer to the details in this one by way of introduction in order to expose the difficulties in most of the matters. Each of the statements of claim is of the same style.

1. According to the "Details about Defendants" in the Statement of Claim, Ms Nickells (there spelt "Nickolls") is someone associated in some fashion with a firm of solicitors at Mosman. I infer that from the fact that her address is given as care of that firm.

1. The "Type of Claim" is said to be:

• Possession of land
• Negligence
• Concealment
• Possible fraud
• Misrepresentation
• Undue influence
• Trespass against the person/intimidation
• False imprisonment

1. The "Relief Claimed" is:

• Restitio in integrum
• Extinguishment of covenant @ transfer of title and exlusive possession to plaintiff (As per caveat No. AH 636866 Folio No 75A/11921)
• Costs

1. The "Pleadings and Particulars" are:

1. There is a question of bona fides and anomolies [sic] concerning the recorded information at the registrar.
2. Possible fraud.
3. Unjust enrichment.
4. This is a protracted dispute about the plaintiff's equitable interests as the property was not ever sold.
5. That the plaintiff has been continually obstructed to the rights of legal redress and the delay in bringing cause of action has been promulgated by the illicit and illegal attempts at acquisition. Delays that favour the defendant, her servants and agents and are severely prejudicial to the plaintiff.
6. That at all times the plaintiff has been intimidated and threatened when trying to procure information regarding the putative bona-fides of the premises.
7. That at all times the defendant has, with intent, engaged in obstructionism and delay prejudicial to the plaintiff and a justiciable cause, therefore extremely favouring the defendant, her servants and her agents.

1. A notice of motion was filed on 9 May 2013 seeking an extension of a caveat. A further notice of motion was filed on 12 September 2013. I gather from its discursive content that it sought that resolution of this matter be deferred until other matters have been resolved. A supporting affidavit appears to advance much the same argument. The reasons are difficult to understand.

1. At the hearing of the matter on 27 September I sought from Ms Whitehead an explanation as to what property was the subject of these proceedings. She told me that she did not wish to "vocalise" that.

239 - Graham and Dorothy Mills

1. Like Ms Nickells, these people seem to have some association with a firm of solicitors in Jerilderie, again because Ms Whitehead nominated an address care of that firm.

1. This case involves a claim for "possession of land", "undue influence" and "possible fraud".

1. The pleadings refer to unspecified anomalies "as to recordings at the registrar and recent correspondence from the defendants' solicitors". There is reference to the property being in the sole possession of Ms Whitehead's late grandmother and that she was the sole beneficiary of the estate and held an enduring power of attorney. That is it.

1. Also on the file are notices of motion seeking an extension of a caveat and another apparently seeking to suggest a proposed order in which proceedings should be determined.

254 - Keith Whitehead

1. The statement of claim asserts that this is a claim for personal injury, negligence, concealment, defamation, unjust enrichment, nervous shock and malicious intent. It relates to the alleged disinterment of Ms Whitehead's late-grandfather's body without her consultation. She told me that this occurred in 1988 or 1989 and that she did not find out about this until 1990 or 1991. An amended statement of claim is in largely the same terms.

258 - The Estate of Peter Matthews

1. The late Peter Matthews was apparently the plaintiff's mother's defacto husband. It is alleged that he conspired with the plaintiff's former defacto husband to cause pain and suffering to the plaintiff and her late grandmother; he was party to a conspiracy to promote the negligent action that caused the wrongful death of the plaintiff's sibling (see the next proceedings); he organised vast illicit scams to launder money and conceal misappropriated resources and property in countries outside Australia; he obstructed the plaintiff's attempts to bring legal action against him; and he caused an increase of risk to the plaintiff's injuries.

1. In an amended statement of claim, a Mr David Matthews is added as a representative for the estate.

309 - Joe James and bus company if NOT the owner driver

1. The pleadings in this matter appear to assert that the defendant was a school bus driver who stopped to allow the plaintiff's child sibling to alight; the child ran from the back of the bus and was hit and killed by another vehicle.

1. Mr D Williams, solicitor, appeared on 27 September 2013 to represent the first defendant. Mr D Wholohan, solicitor, also appeared to represent the second defendant. They clarified for me that this matter appears to concern a motor accident in which a 13 year old child emerged from a bus operated by Mr James when it stopped on the Newell Highway at a point about 8 kilometres from Jerilderie and was hit by a motor cycle, resulting in the child's death. I was informed that this occurred on 13 February 1987.

1. Correspondence on the file indicates that Mr James died 10 years ago and that his widow is currently suffering from bone cancer. Solicitors acting for her on a pro bono basis were trying to assist her by finding out what the case was about. They are trying to minimise any cost to her through engagement in the proceedings.

1. It is asserted by Ms Whitehead that the defendant had a duty to escort the child across the road. It is said that the plaintiff only recently discovered these facts; she had previously understood that the child had been at the front of the bus (rather than the back) before she crossed the road. The plaintiff has suffered years of debilitating poverty and homelessness as a consequence.

1. An amended statement of claim has been filed. A second defendant, Matthew Carroll was added but "awaiting police particulars to confirm surname".

1. A "notice of motion to extent limitation period for bringing causes of action" was filed at the same time as the original statement of claim (9 May 2013). It sought an extension until 13 February 2017 pursuant to ss 51 and 61 of the Limitations Act 1969 (NSW) but does not really advance any sensible reason why that should be done.

1. The notice of motion also asks that this court "in its cross-vesting capacity ... direct a full coronial inquest into the wrongful death" of the child.

1. It is asserted that this matter is "pivotal" to all of the other proceedings commenced at the same time. It is also asserted that the plaintiff has suffered "an intolerable 'spiritual tyranny'" and that "life has not been kind to the plaintiff in the ensuing years and further physical disabilities, homelessness, protracted poverty and false imprisonment are all cumulative reasons ... for delay". There is much more along the same lines.

1. Other amended notices of motion have been filed, but it is not pertinent to the present issue to refer to them except to note that in one filed on 7 June 2013 there is an attempt to explain why the plaintiff has not been able to obtain any legal assistance. It also asserts that her attempts to obtain legal training have been thwarted.

1. A further matter can be noted about this matter and it is relevant to Ms Whitehead's prospect of succeeding in any of the twelve matters. In this file there is a lengthy letter by her to the Registrar dated 1 July 2013. Generally, it set out the difficulties she was experiencing in the litigation. She expressed some concern about the helpfulness of counter staff in the court's registry and about the legal profession. There appears to be some expression of concern about pedantic application of rules. She suggested two "strategies to facilitate procedural fairness, for all concerned and to strike a perpetual blow against the prejudice to the plaintiff". Among her suggestions were:

I feel it would be best if the Directions Registrar was not always the same person. That is to say, that they are chosen randomly and as short notice as possible with a view to expediting trial dates. Having the same Registrar only enables psychic pathways for troublemakers and those hellbent on the denial and, dare I say?, the complete destruction of the court system. (The enemies of Democracy itself). The purveyors of delay and prejudice, fascism, greed and a rule of criminality and amoral perversion. Having ever changing and randomly chosen helmsman at Directional Hearings would scuttle their attempts at sabotage. It ought be possible to stop them.

313 - Lama Choedak Rinpoche

1. The defendant in this matter is described as "the spiritual leader of Sakya Losal Choe Dzong, Rongton Buddhist training centre, Virupa Retreat Centre". He is alleged, amongst other things, to have conspired to perpetrate "bad action" against the plaintiff and her late grandmother. In an amended statement of claim the defendant's brother, Mig Ma, was added as a second defendant and he was included in the "conspiracy".

1. Ms Whitehead told me that the first defendant had been privy to much information about her and her grandmother's pecuniary interests. I asked her what she meant by "bad action" but did not receive a sensible explanation.

1. I note that there is a letter on the file from the first defendant in which he explained his inability to appear on 27 September but also professed to having "no idea" what the plaintiff was claiming from him. I share his bewilderment.

394 - Peter Olive & common law wife Alison

1. The pleadings in this matter are as incomprehensible as any. They include that the defendants' emissary deceitfully induced the plaintiff's grandmother to "gift" a diamond ring. This was a ring that would otherwise have been bequeathed to the plaintiff. There was some modification of the pleadings in an amended statement of claim. A notice of motion sought the removal of the second defendant.

1. Ms Whitehead tried to explain to me that this case involved something to do with misappropriation of funds. It had something to do with money paid for building a house. The relevant actions of the defendant were in the period 1989 to "almost the present". In relation to a claim of "misfeasance in public office", Ms Whitehead explained that Peter Olive was a local government councillor.

399 - Kath Boswell

1. The pleadings are difficult to comprehend. There is reference to the defendant using illegally obtained information about the plaintiff "to further bad action". She also is said to have caused deliberate obstructionism and protracted false imprisonment. An amended statement of claim adds assertions that the defendant did something in the course of her employment as a nurse at a nominated hospital in Canberra. The plaintiff met the defendant in 1997 but the defendant "was pro-active and pre-meditated bad action against the plaintiff many years before".

1. Ms Whitehead was unable to sensibly explain to me what she meant by the assertion that Ms Boswell had used illegally obtained information about her.

1. There is an affidavit of service on file showing service of the statement of claim on 19 September 2013. There is also a letter on the file in which Ms Boswell says she has read the statement of claim and has "no idea how I am to respond. It makes a number of claims against me without saying what I am supposed to have done, or not done, and when the claims arose". As in the case of the Lama, I share her bewilderment.

404 - The Estate of Peter Whitehead

1. This claim asserts that by his actions and affiliations with the Roman Catholic and other churches the late Peter Whitehead caused pain to the plaintiff and her late grandmother. He conspired to promulgate the negligence causing the wrongful death of the plaintiff's sibling. And, by his legal training, he obstructed the plaintiff's path to justice and legal redress. An amended statement of claim adds more defendants.

436 - The Estate of Christopher Beaumont

1. This is a claim against the plaintiff's former defacto husband. It seems to involve, primarily, a dispute about the non-repayment of a loan of $20,000 to him quite some time ago. Ms Whitehead told me that the relationship ended in 1989 or 1990. It is also alleged that the late Mr Beaumont was probably involved in promoting the negligence that cause the wrongful death of her late sibling child (see proceedings 309 concerning the late Mr James). Other assertions made about her late defacto husband are difficult to comprehend in terms of them giving rise to a reasonable cause of action. An amended statement of claim added another defendant as a representative of the estate and specified that the loan in question was made in 1987.

624 - Clare Harrington

1. Ms Harrington is said to be a "disciple of Lama Choedak's". She is said, amongst other things, to have conspired with others to "protract bad action" against the plaintiff and her late grandmother. She obtained information so as to cause injurious falsehood and loss to the plaintiff. An amended statement of claim is in similar terms.

631 - Julie and Owen Tinnon

1. These defendants were also disciples of Lama Choedak's. Amongst other things, they are said to have abused their positions in public office to cause bad action towards the plaintiff. Ms Whitehead told me that Ms Tinnon was an employee of "the Treasury" but she did not know what position she held. "Illegal sensitive information" had been obtained about the plaintiff and her late grandmother. Ms Whitehead told me that this related to her pecuniary interests. I could not understand what she meant.

Conclusion

1. The foregoing summary is necessarily incomplete. Ms Whitehead's claims range far more widely but it is unnecessary to refer to them all.

1. My review of all of the documents filed by Ms Whitehead leads me to conclude that her claims are utterly hopeless in offering her any prospect of success. I have no hesitation in accepting that she is quite serious and has a passionate interest in pursuing each of her claims. There are obviously issues personal to her that influence her current interest in litigation and I do not want to be so unkind as to speculate about what those issues might be. But the various defendants, those who are alive and the representatives of those who are deceased, should not be vexed further by the continuation of these proceedings.

1. It was for these reasons that on 27 September 2013 I made the orders dismissing each of Ms Whitehead's proceedings.

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Decision last updated: 04 October 2013