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

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.

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.

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.

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.

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…

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.

Keep reading for free

Create a free CaseChat account to read Whitehead v Nickells and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWSC 1466
Decision Date: 27 September 2013

CaseChat Overview and Summary

The matter of Whitehead v Nickells was heard by the Supreme Court of Victoria, where the plaintiff, Whitehead, sought to recover damages for the alleged breach of a contract for the sale of goods by the defendant, Nickells. The plaintiff appeared unrepresented and the defendant was represented by counsel. The primary legal issue before the court was whether the proceedings were so lacking in merit as to warrant dismissal under the court's inherent jurisdiction to prevent abuse of process. Specifically, the court needed to determine if the plaintiff's claims had any reasonable prospects of success or if they were frivolous or vexatious.

The court examined the particulars of the plaintiff's claim and found that the allegations did not provide a sufficient basis for any potential recovery. The plaintiff's claims were deemed to lack any reasonable cause of action as the contract in question was not properly substantiated, and the alleged breach did not meet the legal requirements for damages. The court held that the proceedings were an abuse of process because they were foredoomed to fail, with no prospect of success and no point of principle involved. Consequently, the court exercised its inherent jurisdiction to dismiss the proceedings as vexatious and an abuse of the court's process.

The Supreme Court dismissed the plaintiff's claims and awarded costs to the defendant, Nickells. The court ordered that the plaintiff's claims be dismissed with costs to be paid by the plaintiff to the defendant. The court's decision underscores the importance of ensuring that claims brought before the court have a reasonable prospect of success and are not an abuse of the legal process.

Orders