Xardia v Commissioner of Taxation and Commissioner of NSW Police; and Ors (No 2)

[2016] NSWDC 194

District Court

New South Wales

Medium Neutral Citation:

Xardia v Commissioner of Taxation & Commissioner of NSW Police; and Ors (No 2) [2016] NSWDC 194

Hearing dates:

12 August 2016

Date of orders:

12 August 2016

Decision date:

12 August 2016

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Pursuant to s 67 of the Civil Procedure Act 2005, proceedings numbered 2016/10595, 2016/52912 and 2016/160711 are stayed pending the further order of the Court;

 

2. Pursuant to UCPR 7.36, the plaintiff is referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance;

 3. Costs of the interlocutory listings to date are reserved.

Catchwords:

PRACTICE & PROCEDURE – stay of proceedings, including stay of summary dismissal motions, until a tutor is found for the plaintiff and appointed to continue the litigation

Legislation Cited:

Civil Procedure Act 2005, s 67
Uniform Civil Procedure Rules 2005, r 7.36

Cases Cited:

Batistatos v RTA of New South Wales [2006] HCA 27, 226 CLR 256
State of New South Wales v Plaintiff A [2012] NSWCA 248
Xardia v Commissioner of Taxation and Commissioner of New South Wales Police; Xardia v Department of Defence [2016] NSWDC 63

Category:

Procedural and other rulings

Parties:

Nakita Xardia (Plaintiff)
Commissioner of Taxation (First defendant: 2016/10595)
Commissioner of NSW Police (Second defendant: 2016/10595)
Department of Defence (Defendant: 2016/52912)
Australian Freestyle Tae Kwon-Do Academy (Defendant: 2016/160711)

Representation:

Counsel:
Plaintiff in person
Mr M Seck (Defendants)

  Solicitors:
Norton Rose Fulbright Australia (Defendants)

File Number(s):

2016/10595; 2016/52912; 2016/160711

Publication restriction:

None

Judgment

Background

1. The plaintiff's proceedings against the Commissioner for Taxation, the Commissioner of New South Wales Police, and the Department of Defence, in proceedings numbered 2016/52912 and 2016/10595, were last before the Court on 2 May 2016.

2. At that time, the several motions for summary dismissal filed by the respective defendants were stood over until today pending an expert medical examination of the plaintiff aimed at determining her legal capacity to continue these proceedings: Xardia v Commissioner of Taxation and Commissioner of New South Wales Police; Xardia v Department of Defence [2016] NSWDC 63. On that occasion, and today, the plaintiff was self-represented.

Consideration

3. Pursuant to orders made on 2 May 2016, on 23 June 2016, the plaintiff was examined by a forensic psychiatrist, Dr Bruce Westmore, to determine the question of legal capacity. His report of that examination is dated 7 July 2016.

4. Dr Westmore reviewed the plaintiff's unfortunate history and life's circumstances. Dr Westmore concluded that the plaintiff suffers from the illness of chronic schizophrenia with associated thought disorder. Dr Westmore also concluded the plaintiff's ability to present her cases before a court in an effective manner is severely compromised due to the described illness. He further concluded that position was not anticipated to change over the next 12 months.

5. In the interim, on 25 May 2016, the plaintiff filed further proceedings numbered 2016/160711, naming as defendants the following parties: (a) the Department of Corrective Services; (b) Anti-discrimination Board; (c) New South Wales Police; (d) Health Department of New South Wales; (e) Australian Freestyle Tae Kwon-Do Academy; (f) Newcastle University; (g) New South Wales Housing; (h) Australian Federal Police; (i) Queensland Police.

6. The relief claimed in proceedings numbered 2016/160711 states "Unsuitable for future employment as a Correctional Officer." The pleadings and particulars of those proceedings state, (1) “harassment, innuendos, lies, corruption, bastardisation, forced stop”; (2) "life and limbs in danger forever", "and emotions", "wilfully put under duress."

7. Details of service of the latter proceedings on all of those named defendants is unclear at this point in time. For convenience, the registrar has listed the latter proceedings today, to be considered along with the other proceedings which are the subject of the filed motions seeking dismissal.

8. A common feature to all of the described proceedings is that they have been inadequately framed and particularised, and cannot be considered and carried forward without substantial amendment.

9. On the basis of Dr Westmore's cited opinion, it is clear that the plaintiff cannot continue with these proceedings without a litigation guardian or a tutor. Substantial remedial work is required on the pleadings.

10. It follows that the proceedings, including the motions for summary dismissal, should be stayed pending the appointment of a tutor, so that the plaintiff be afforded the opportunity to properly plead her cases.

11. Until that stage is reached, it is not possible to determine whether the defendants can reasonably assert that a fair trial can no longer be had, as claimed in the respective motions: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [77], following Batistatos v RTA of New South Wales [2006] HCA 27, 226 CLR 256.

12. The plaintiff has reportedly been unable to obtain legal assistance to present her claims. There may or may not be good reasons for such circumstances. Notwithstanding such circumstances, a necessary precondition to any further consideration of the defendants' motions in proceedings 2016/10595 and 2016/52912 is that steps be taken to seek pro bono legal assistance for the plaintiff in order to try and determine whether there is any arguable basis for her claims against those defendants, and the defendants in the additional proceedings, and, if so, to assist in the proper pleading and presentation of those claims.

13. Until that point has been reached, all of the plaintiff's proceedings, and the motions seeking summary dismissal, should be stayed.

Orders

14. I therefore make the following orders:

1. Pursuant to s 67 of the Civil Procedure Act 2005, proceedings numbered 2016/10595, 2016/52912 and 2016/160711 are stayed pending the further order of the Court;

2. Pursuant to UCPR 7.36, the plaintiff is referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance;

3. Costs of the interlocutory listings to date are reserved.

[This published version of the judgment omits the recorded interjections made by the plaintiff in the course of delivery of the reasons for judgment.].

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Decision last updated: 18 May 2018