Young v Racing NSW Limited

[2021] NSWSC 556

Supreme Court

New South Wales

Medium Neutral Citation:

Young v Racing NSW Limited and ors [2021] NSWSC 556

Hearing dates:

17 May 2021

Date of orders:

21 May 2021

Decision date:

21 May 2021

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1)   The proceedings brought by the plaintiff against each of the first, second, third, fourth, fifth, sixth and seventh defendants are dismissed.

(2)   The Registrar is to forward a copy of this judgment to the plaintiff.

(3)   The question of the costs of the proceedings are reserved.

(4)   Absent agreement, each party is to provide written submissions to my Associate within 14 days as to the question of costs, such submissions not to exceed 2 pages in length.

Catchwords:

PRACTICE AND PROCEDURE – Pleadings – Whether reasonable cause of action disclosed – Whether proceedings constituted an abuse of process – Where plaintiff commenced had proceedings in the District Court – Where those proceedings were dismissed – Where plaintiff did not seek to appeal against that decision – Where plaintiff then commenced proceedings in this Court – Where the effect of those proceedings was to re-agitate the determination of the District Court in the guise of an action in negligence – Where the plaintiff complained of discrimination in the conduct of the proceedings in the District Court – Review of transcript of those proceedings at odds with a complaint of discrimination and at odds with a complaint of a denial of procedural fairness – Where statement of claim did not disclose a cause of action against any defendant – Where proceedings were otherwise an abuse of process – Proceedings dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Disability Discrimination Act 1992 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

D’Orta-Ekeniake v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; [1995] NSWSC 136

Reichel v Macgrath [1889] 14 App Cas 665

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Young v Racing NSW [2019] NSWDC 662

Young v Racing NSW (No. 2) [2020] NSWDC 785

Category:

Procedural rulings

Parties:

Gary Young – Plaintiff
Racing NSW Limited/Racing NSW Country Limited – First Defendant
Casino Race Club Limited – Second Defendant
Richmond Valley Council – Third Defendant
State of New South Wales – Fourth Defendant
District Court of NSW – Fifth Defendant
YPOL Pty Limited – Sixth Defendant
SWAAB – Seventh Defendant

Representation:

Counsel:
Self-represented – Plaintiff
B McClintock SC and G Ng – First, Second, Third, Sixth and Seventh Defendants
G Bateman – Fourth and Fifth Defendants

Solicitors:
Self-represented – Plaintiff
Swaab – First, Second, Third, Sixth and Seventh Defendants
Crown Solicitor for NSW – Fourth and Fifth Defendants

File Number(s):

2020/290023

Publication restriction:

Nil

Judgment

1. Before the Court for determination are two notices of motion.

2. The first notice of motion is dated 23 December 2020 and has been filed on behalf of the first, second, third, sixth and seventh defendants. It seeks the following orders:

1. an order pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (the Act) that the proceedings be permanently stayed;

2. in the alternative to order (1), an order pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules), or the inherent jurisdiction of the Court, that the proceedings be summarily dismissed;

3. in the further alternative to order (1), an order pursuant to rule 14.28 of the Rules, or the inherent jurisdiction of the Court, that the plaintiff’s statement of claim be struck out;

4. an order that the plaintiff pay the costs of, and incidental to, the notice of motion; and

5. such further orders as the Court sees fit.

3. That notice of motion was supported by an affidavit of Marc Richard Baddams of 23 December 2020 which was read without objection.

4. The second notice of motion is dated 26 February 2021 and has been filed on behalf of the fourth and fifth defendants. It seeks the following orders:

1. an order that the proceedings be dismissed pursuant to rule 13.4 of the Rules;

2. in the alternative, an order that the plaintiff's statement of claim filed on 8 October 2020 be struck out pursuant to rule 14.28 of Rules;

3. an order that the plaintiff pay the fourth and fifth defendant’s costs of the motion;

4. an order that the plaintiff pay the fourth and fifth defendant’s costs of the proceedings; and

5. such further or other order as the Court deems fit.

5. That notice of motion was supported by an affidavit of Rachael Knapman of 26 February 2021 which was read without objection.

6. The entirety of the evidence in support of the respective motions was contained in a tender bundle which was admitted and marked as exhibit ‘A’ on the hearing.

The proceedings brought by the plaintiff in the District Court

7. On 19 July 2019 the plaintiff commenced proceedings against the first, second and third defendants in the District Court of New South Wales seeking damages, including aggravated damages and exemplary damages (the District Court proceedings). [1] The District Court proceedings stemmed from action allegedly taken by the three named defendants arising out of an online news report which, the plaintiff alleged, had operated to prevent him from being able to renew his licence to train racehorses.

   1. TB 66 – 111.

8. The first and second defendants filed a notice of motion seeking that the District Court proceedings be dismissed, or alternatively that the plaintiff's statement of claim be struck out. A separate notice of motion was filed on behalf of the third defendant seeking similar relief.

The hearing of the application for dismissal of the District Court proceedings

9. The two notices of motion were heard by her Honour Judge Gibson in the District Court on 7 November 2019. In view of a number of submissions made by the plaintiff before me, it is necessary to make reference to some aspects of the hearing which proceeded before her Honour.

10. At the commencement of the hearing, and in circumstances where the plaintiff was self-represented and was appearing before her Honour via audio link, the following exchange took place: [2]

    2. TB 196.10 – 196.23.

HER HONOUR: Mr Young everybody is here, everybody is ready. We have read your submissions. This is the date that was fixed for the argument and although you amended the statement of claim, the defendants tell me they can meet those objections and you have been sent copies of written submissions by both of them. What I am proposing to do, I will hear this application a little bit later this morning. How are you placed in about half an hour or so, is that all right?

PLAINTIFF: Yes, that would be fine, your Honour.

HER HONOUR: We will deal with it all then, Mr Young. We will ring you back, probably about quarter to ten or 10 o’clock at the latest.

PLAINTIFF: Yes, thank you.

11. When the hearing commenced, her Honour confirmed with the plaintiff that he was able to hear what was being said. [3] A short time later the following exchange took place between her Honour, the plaintiff, and senior counsel then appearing for the first and second defendants: [4]

    3. TB 197.24 – 197.26.

    4. TB 198.11 – 198.27.

HER HONOUR: …… [t]here is no reason why the case can't go ahead today because you have got the submissions, they have underlined the bits that are new to deal with what you have to say, so really, Mr Young, the problem was you filing the amended statement of claim if anything and if the defendants say they can meet your amended statement of claim, I don't see why I shouldn't go ahead, all right?

PLAINTIFF: All right, your Honour, I understand.

HER HONOUR: That's the first thing. The next thing is, Mr Dawson, perhaps I can ask you to tell Mr Young and you'll have to speak slowly and clearly because he has a 40% hearing deficit.

DAWSON: I will, your Honour.

HER HONOUR: And loudly.

DAWSON: Yes.……

12. Following the submissions made on behalf of the defendants in support of their respective notices of motion, the following exchange took place between her Honour and the plaintiff: [5]

    5. TB 234.21 – 234.27.

HER HONOUR: Mr Young, I want to ask you a question before we start. Mr Young, would you like to have a few minutes to marshal your thoughts. Would you like us to come back to you in five or ten minutes after you – –

PLAINTIFF: No that's fine, your Honour, that's fine. The problem is the phone breaking up so I'm getting about every second or third word, so I'm getting most of what you’re saying. No, I'm prepared to go right now, your Honour.

……

13. The plaintiff then addressed the Court at length, in the course of which he had a number of exchanges with her Honour regarding specific submissions which he had advanced. [6] Generally speaking, the plaintiff responded cogently and appropriately to queries raised by her Honour in the course of those exchanges, which culminated in the following: [7]

    6. TB 234.33 – 244.41.

    7. TB 244.43 – 245.5

HER HONOUR: Mr Young, is there anything else you wanted to say about that?

PLAINTIFF: No, I think I have done that, your Honour, I can't really hear what you're saying, so anyway it's really difficult to hear.

HER HONOUR: Well you seem to be able to respond to my questions quite helpfully.

PLAINTIFF: No, no, I can – when you speak loud I can hear you very well, but I have a hearing loss and basically I'm getting the high points and the low points of discovery. Anyway, I've got your general meaning.

HER HONOUR: What else do you want to tell me about your claim?

14. Having given the plaintiff a further opportunity to make submissions, [8] her Honour said: [9]

    8. TB 245.9 – 245.35.

    9. TB 246.37.

Now what else do you want to tell me about your cause of action?

15. The plaintiff then made a number of further submissions during which the following exchange took place: [10]

    10. TB 246.50 – 247.10.

PLAINTIFF: …… I obviously cannot hear.

HER HONOUR: I beg your pardon?

PLAINTIFF: I said I am having trouble hearing……(not transcribable)… I think we are at cross-purposes here.

HER HONOUR: No, we are not at cross-purposes, you are understanding exactly what I’m saying and I think the difficulty is you can’t answer my question.

PLAINTIFF: Well, most of the time I can, you’re right, but not all the time……

16. The plaintiff then made a series of further submissions to her Honour, [11] following which her Honour said: [12]

    11. TB 247.11 – 248.22.

    12. TB 248.24.

Is there anything else you want to say?

17. The plaintiff then made further submissions to her Honour [13] which culminated in the following exchange: [14]

    13. TB 248.26 – 250.4.

    14. TB 250.4 – 250.9.

PLAINTIFF: …… I'm not going to go on now. There is no point.

HER HONOUR: Is there anything else you want to say?

PLAINTIFF: No, your Honour.

18. Counsel then appearing for the first and second defendants made a short submission to her Honour in response to which the plaintiff said: [15]

    15. TB 250.21 – 250.23.

If the matter is dismissed, your Honour, I would ask that I have the right to re-plead and I would also ask that you allow me to discover at the same time.

19. The plaintiff then made further submissions in respect of those two issues following which judgment was reserved. [16]

    16. TB 250.25 – 254.13.

The dismissal of the District Court proceedings

20. In a judgment delivered on 14 November 2019 her Honour dismissed the District Court proceedings and reserved the question of costs. [17]

    17. Young v Racing NSW [2019] NSWDC 662.

21. In the course of that judgment, her Honour observed that the statement of claim which had been filed by the plaintiff contained numerous defects,[18] including the absence of a properly identified cause of action. Her Honour observed that instead, there was a “lengthy recital of the plaintiff's complaint that, ‘multiple times….until the present date’ employees of the defendants have downloaded a news item from the Australian Broadcasting Corporation (‘ABC’) first made available online on 12 December 2012 [which] contained a report of Court proceedings in which the plaintiff had been convicted of animal cruelty offences in 2019”. [19] Her Honour went on to say:[20]

    18. At [3].

    19. At [3].

    20. At [4].

The plaintiff does not assert that it is an inaccurate representation of what occurred in court. His complaint is that these findings were set aside on appeal 2016 and that the ABC hyperlink is inaccurate, in the sense that it does not reflect that result. As a result, he claims damages to the maximum of the court's jurisdiction for damage to his reputation as well special damages and a claim or relationship breakdown.

22. In addressing the form of the plaintiff's statement of claim, and in attempting to identify the causes of action upon which he relied, her Honour said the following:[21]

    21. At [16].

[16] It is not possible to do more than to describe in a general sense the five “causes of action” (to use the plaintiff’s term) pleaded, by reason of their confusing content, repetition and prolixity, but these appear to be as follows:

(a) The first matter complained of is the ABC hyperlink referred to above (which does not identify the plaintiff by name) which, when clicked on, contains the ABC report of trial proceedings dated 12 December 2012 which, it is pleaded, remained online until “2019”. This hyperlink is asserted to be a defamation which was downloaded by unknown persons at unknown times, including employees or officers of the Casino Racing Club Ltd. The plaintiff provides “particulars of meaning” for the contents of this hyperlink (but not for any publications containing it), all of which appear to be pleaded as imputations, followed by “particulars of extrinsic facts” to the effect that the general public’s purported reaction to reading about the plaintiff’s convictions. A claim for aggravated damages and special damages is pleaded “to the limit of this court’s jurisdiction” (paragraph 18(8)).

(b) The second cause of action for defamation, against the Casino Racing Club Ltd and Racing NSW, is essentially in the same terms as the first publication.

(c) The third cause of action, brought against Casino Racing Club Ltd and the Richmond Valley Council is substantially the same, although there is some additional material concerning the refusal of the plaintiff’s renewed licence.

(d) The fourth cause of action is for negligence, “failure and duty of care”, “denial of procedural due process”, “denial of natural justice” and is brought against the Casino Racing Club Ltd and Richmond Valley Council. A claim for general, aggravated and exemplary damages is sought, as well as a declaratory order (paragraph 55(2)) which lies outside this court’s jurisdiction. A previous claim for misfeasance of office has been abandoned.

(e) A fifth claim for negligence is in similar terms and appears to be made against all defendants.

23. Her Honour concluded:[22]

    22. At [68].

[68] The pleadings in this case are not merely hopeless in the sense of being incomprehensible or discursive, but fail to demonstrate even the glimmer of a cause of action. As to the defamation claim, no leave to replead should be granted because there is still no identifiable cause of action despite this being the plaintiff's third attempt. The negligence claim fails to identify the duty of care as well as the breaches, as the defendants have pointed out at some length in their written submissions, and appear to be some form of claim for judicial review, which is outside the jurisdiction of this court. No purpose can be obtained by the continuation of any of the five “causes of action" and they should be struck out on this basis.

24. Following the delivery of that judgment, the defendants sought gross sum costs orders against the plaintiff pursuant to s 98(4)(c) of the Act and rule 42.20 of the Rules. The plaintiff then brought an application pursuant to rule 36.15 of the Rules for an order setting aside her Honour's judgment. He also challenged the making of costs orders, and sought that her Honour recuse herself from the proceedings.

25. Her Honour dismissed the plaintiff's application to set aside judgment, refused the related application that she recuse herself, and ordered that the plaintiff pay the defendants' costs of the proceedings in specified gross sums. [23] In the course of her judgment on those issues, her Honour observed:[24]

    23. Young v Racing NSW (No. 2) [2020] NSWDC 785

    24. At [23].

[23] The plaintiff's written submissions contain many complaints about the unfairness of these proceedings being conducted in the Sydney Registry of the District Court and about his difficulty in hearing what was said during the hearing which followed the service of written submissions. Some of these were “institutional” in that they were the court's fault and some were due to my conduct, specifically in my not doing more to help the plaintiff with his hearing problems.

26. Having made reference to some authorities touching upon the issue of the necessity to decide a case on its merits,[25] her Honour continued:[26]

    25. At [24].

    26. At [25].

[24] The plaintiff’s generalised complaints about hearing problems during oral submissions do not even get to the first of these two steps, in terms of identifying the conduct in question, let alone identifying how that conduct amounted to deciding that case other than on the merits. Although given a timetable in which to list the specific areas of complaint of bias, with references to the transcript if possible, he has not done so. His complaints are, essentially, about the injustices caused by the court's geographical and technological features.

27. Her Honour went on to summarise the various complaints made by the plaintiff in relation to her conduct, one of which centred upon an asserted failure on the part of her Honour to assist the plaintiff with his hearing problems. In relation to that issue her Honour said: [27]

    27. At [25](c).

[25] ….. I had no role in the case management or appearance arrangements of these proceedings, as is set out above. The plaintiff’s submissions [at the earlier hearing] do not refer to health problems of any kind, including hearing problems.

28. Having noted other aspects of the proceedings, her Honour observed:[28]

    28. At [26].

[26] In the absence of contemporaneous complaint by the plaintiff about any of these matters, it is hard to understand what he expected me to do.

29. Her Honour concluded:[29]

    29. At [31].

[31] …… [I]t would be open to the Court of Appeal, however dissatisfied it may be with my conduct, to determine that the hopelessness of the case was sufficiently obvious to warrant the dismissal of the claim. The hopelessness of the pleadings and the plaintiff's refusal to consider the complaints carefully set out in the defendants’ written submissions make it impossible for the claim to go forward in any meaningful way.

The proceedings commenced in this Court

30. In the absence of bringing any appeal, or any application for leave to appeal, against any of Judge Gibson’s determinations, the plaintiff commenced proceedings in this Court against the present seven defendants by filing a statement of claim on 8 October 2020. [30] Without intending any disrespect to the plaintiff, that statement of claim is as discursive and prolix as that filed in the District Court proceedings. I do not, given its length, propose to set it out in its entirety. The following extracts are generally indicative of its form and content. [31]

    30. TB 2 – 28.

    31. Those extracts have been reproduced in the precise terms in which they appear in the statement of claim.

31. The statement of claim is prefaced with the following: [32]

    32. TB 7.

STATEMENT OF CLAIM

For Negligence for negligence causing damages

against all named defendants as set out herein

and for declaratory relief

32. The first two paragraphs are in the following terms:

1. … what this action is

This action goes to the very heart of justice in Australia, the access by a party to the very court itself and this absolute right being totally denied to the plaintiff by the negligence of all named defendants.

2. That negligence resulted in severe prolonged and ongoing discrimination against plaintiff by age, by deafness, by denial of equal access to the court and by medical disability and the result of these actions and inaction as plead [sic] against all defendants hearin resulted in plaintiff being discriminated against to such an extent that he was simply and effectively deprived of the right to be heard in an action being tried by the fifth defendant [the underlying action] and as a direct result being made to suffer severe damages. Plaintiff has suffered a total denial of natural justice and denial of due process and the right to equal treatment before all courts and tribunal's.

The merits of the underlying case are not at issue in this action as plaintiff seeks declaratory orders that the discrimination against himself was at such a high level and of such an extent that plaintiff has been denied any type of fair trial on the basis of the discrimination alleged and that the underlying action must be voided…. and retried again… from its inception. With equal access to the court will see by this plaintiff.

33. Under the heading “The discrimination complained of" the statement of claim includes the following: [33]

    33. TB 9.

16. All defendants are fully and completely aware of plaintiffs [sic] circumstances, location, deafness, age, disabilities and yet with complete negligence and total reckless disregard of plaintiff rights all defendants acted with extreme negligence to discriminate against plaintiff as demonstrated herein as

(a) individual defendants have actively and with the intended outcome of discrimination against plaintiff, done the discriminatory acts or lack of acts set out herein and

(b) worked either in concert with each other and/or separately, and with plain and fully informed knowledge of that discrimination towards plaintiff, initiated and continued the discrimination by active participation and active encouragement of the other defendants to do so but are or

(c) by not acting when it was obvious that plaintiff was being actively discriminated against when at all times each one of the defendants has a duty to the court, either as officers of the court or by advocation through officers of the court not to violate laws on discrimination within Australia or participate in discrimination, by the active discrimination against plaintiff complained of as described in this statement of claim [SOC] (emphasis in original in each case).

34. The statement of claim proceeds to make a number of complaints about the District Court proceedings. [34] Typical of such complaints is the following: [35]

    34. TB 9 – 11.

    35. TB 9.

17. Those actions or inactions by all defendants were intended to, by actions of gross negligence, and did discriminate against plaintiff by knowingly continuing to ensure plaintiff was discriminated against by, age, hearing loss and medical disability by a violation of holdings in Dow Jones v Guttnik and by violation of s 14 ICCPR on equal access to the court

by

…

(d) [K]nowingly participating in discriminatory hearings before the court where it was blindingly obvious plaintiff had a 40 – 45% hearing loss and the court microphones, phone system hookups was totally deficient in providing any proper audio or any vision at all to plaintiff so that his hearing loss was exacerbated by lack of vision of any kind to aid lip reading and by the ancient in court equipment coupled with his deficient rural phone service combining to totally deprived plaintiff of any meaningful imput [sic] into those court hearings

35. That general complaint is repeated in various forms in the statement of claim. [36]

    36. See for example TB 15 at (f) and (g).

36. The statement of claim seeks what are referred to as “declaratory orders and an order for damages based upon the full factual details set out herein”. [37] Amongst the orders sought, all of which appear to focus upon the hearing before Judge Gibson, are the following: [38]

    37. TB 25.

    38. TB 25-26

4. At all times plaintiff was entitled pursuant to the rights granted in Dow Jones v Guttnik to have his court hearing conducted in the audio visual court in Lismore NSW and with a supplied hearing enhancing ring at a minimum.

……

At all times, NSW is to take immediate measures and to ensure that plaintiff and any age, disabled, hearing deficient litigant is immediately able to access an audio visual court within their local NSW Judicial district and supplied with a hearing enhancing ring should for any reason any court hearing be removed from plaintiff's or that persons NSW Judicial District;

7. The court declares that all defendants have committed

9. age discrimination against plaintiff…;

10. for discrimination by physical disability;

3. for discrimination by age deafness and other disability for refusing to supply an audio visual court room;

11. for discrimination to plaintiff as a remote area litigant by preventing equal access to plaintiff to the NSW Court hearing plaintiff's matters;

12. for discrimination by age, disability and deafness against plaintiff as a remote area litigant by total defiance and repudiation of the High Court of Australia holding in Dow Jones v Guttnic;

13. for discrimination for failing to follow the Federal Court of Australia rules and federal Cwlth law, regarding equal access to courts and amounting to a violation of s 109 Constitution which caused damages which must be remedied forthwith.

37. In terms of damages, the statement of claim pleads the following:

16. Plaintiff seeks aggravated damages against sixth and seventh defendants of $250,000.00 for each defendant for their deliberate and ongoing discrimination and lack of any attempt to stop same

17. Aggravated damages against first second and third defendants in an amount of $100,000.00 for each defendant because each of those defendants have already in place detailed anti discrimination policies to treat all persons and they knew or should have known better than to allow themselves to be involved in this described discrimination or alternatively they failed to properly and adequately supervise their advocates in the actions those advocates took on the defendant's behalf.

18. Plaintiff seeks aggravated damages against the fourth defendant of $450,000.00 for such deliberate knowing infliction of pain and damages on plaintiff and acting with such reckless disregard for the rights of and causing damages to plaintiff by knowing and knowledgeable indifference to the rights of plaintiff.

19. Plaintiff seeks aggravated damages against the fifth defendant for the fifth defendant's roles as ‘in place’ agent for the fourth defendant as and for the periods when the fifth defendant acted in managerial or administrative roles involving denial of plaintiffs access to the court. [39]

39. TB 27.

Submissions of the plaintiff

38. When given the opportunity to address the Court on the hearing of the present motions, the plaintiff said the following: [40]

I can be very brief, your Honour. As evidence today, this Court here in Lismore has actually set up what I am seeking in this law suit, which is a small room with an audio visual link that will take us 2,000 k's trip and deliver me into the court room. As a person with disabilities, as far as a mental condition and age disability, the issue that I believe the Richmond River Council people raising that somehow or other they want to reargue the action before Judge Gibson. My attitude here is that I am seeking in this law suit simply one, if you like, order under certiorari order, was her Honour was fully aware that I am totally deaf, and the other issues which are now disability, and that she was wrong in law basically to proceed without ensuring, in her administrative role and that administrative role is not one where she is deciding issues between the parties, but rather that administrative role which is mandated by law to have occurred, which is s 5 and s 6 of the Disability Discrimination Act and I understand your Honour has stated that you are very familiar with that particular Act.

The issue here is that I was able to, from the very first hearing, able to bring to the Court's attention that I was deaf. I asked for a hearing, link at the very first hearing. They provided the hearing link alright, but like today, it didn't work, so all the parties there present at that time knew that I had this disability, and you will notice in the statement of claim I repeatedly told the Court. The Court was given access to the appeal before Judge Jeffreys which clearly sets out a s 32 order being granted based on the fact of the mental disability. All sides have been through that file because Judge Gibson opened that file to everybody. So the essential situation that is before the Court today is that I have sued, basically, the State of New South Wales her Honour as an agent of the State of New South Wales who runs the Court system. They are absolutely mandated. There is no way out of it. They are mandated not to discriminate once I have advised the parties that I had this disability. Everything should stop until that disability is cured in order to bring me, like today, basically level with the court with the other parties.

40. T2.32 – T3.12.

39. In reference to the facilities which had been made available to him for the purposes of appearing before this Court (which, it should be noted, included his having access to an AVL facility provided to him in a private room at the Lismore Local Court) the plaintiff said: [41]

That's a wonderful improvement. We are very close to getting this fixed, if you like, and I would ask that the motion be dismissed on the basis that Richmond Council is asking for a rehash of the hearing before Judge Gibson. That's not what I am seeking at all. I am simply saying Judge Gibson had a duty. The moment she knew I was disabled, she must, in her administrative capacity, stop everything and say I won't hear a dispute between the parties until such time Mr Young can hear. Article 47 of International Covenant on Civil and Political Rights makes it abundantly clear that I have that right to be equal before the Court. S 12(8)(ba) of the Disability Discrimination Act makes it plain that the International Covenant on Civil and Political Rights do apply here with regard to disability, and where that right is disallowed or not given which amounts to a discrimination now becomes a criminal act.

41. T3.18 – T3.29.

40. The plaintiff concluded his submissions by saying the following: [42]

The defendants are aware the plaintiff claims he has disabilities and that the plaintiff has advised the Court the cause of this disability. Having now brought this to the Court's attention, the defendants will abide by the administrative decision in that regard, and that would have washed their hands of it. However s 122 of the Disability Discrimination Act makes their (inaudible) complicity. First of all, it's a crime. I am not asking they be convicted of a crime, but it's their negligence not observing that and not helping to solve the problem before it became a monstrous law suit.

42. T3.38 – T3.46.

Submissions of the first, second, third, sixth and seventh defendants

41. Senior counsel for the first, second, third, sixth and seventh defendants submitted that the statement of claim filed in this Court disclosed no reasonable cause of action. He further submitted that having regard to the manner in which had been drafted, it exhibited a tendency to cause prejudice, embarrassment or delay. In advancing these submissions senior counsel submitted that in circumstances where the complaints advanced by the plaintiff in the statement of claim filed in this Court stemmed from the District Court proceedings, no relevant duty had been owed to the plaintiff by the first, second and third defendants in those proceedings. Senior counsel also pointed out that the sixth and seventh defendants were not even parties to those proceedings, but were in fact the lawyers acting for one or other of the first, second and third defendants.

42. Whilst accepting that the plaintiff was entitled to procedural fairness in the conduct of the District Court proceedings, senior counsel submitted that neither the defendants in those proceedings, nor their legal representatives, owed the plaintiff a duty to ensure that he was afforded that entitlement. In any event, it was submitted that it was clear from a transcript of those proceedings that the plaintiff was afforded procedural fairness at every stage of the proceedings.

43. To the extent that the plaintiff sought to rely upon the provisions of the Disability Discrimination Act 1992 (Cth) senior counsel submitted that such legislation had no application to the plaintiff’s position, for the simple reason that the plaintiff had not been the subject of any discrimination.

44. Senior counsel further submitted that the proceedings brought in this Court amounted to an attempt by the plaintiff to re-litigate matters which had been determined by Judge Gibson in a manner which was adverse to him. He counsel submitted that it had been open to the plaintiff to seek leave to appeal against the decision of Judge Gibson and that having chosen not to take that course, and under the guise of a suit in negligence, the plaintiff was now seeking to impugn the conduct of the District Court proceedings on grounds which had been rejected by her Honour in her judgment, in an attempt to either be placed in the position in which he would have been had the District Court proceedings not been dismissed, or to have the orders dismissing those proceedings set aside. Leaving aside the question of whether or not the findings of Judge Gibson gave rise to an issue estoppel, senior counsel submitted that in the circumstances outlined, the proceedings brought by the plaintiff in this Court constituted a collateral attack upon the dismissal of the District Court proceedings, and were thus an abuse of process.

Submissions of the fourth and fifth defendants

45. Counsel for the fourth and fifth defendants generally adopted the submissions advanced on behalf of the first, second, third, sixth and seventh defendants. In doing so, counsel took the Court to some parts of the transcript to which I have referred in support of the proposition that the various complaints now made by the plaintiff regarding the circumstances in which he appeared before Judge Gibson were largely, if not entirely, baseless.

CONSIDERATION

The relevant statutory provisions

46. Rule 13.4 of the Rules is in the following terms:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

47. Rule 14.28 of the Rules is in the following terms:

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

48. Section 67 of the Act is in the following terms:

1. Stay of proceedings

Subject to rules of court the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.

49. For the reasons that follow, I have come to the view that the proceedings brought by the plaintiff in this Court must be dismissed because they:

1. do not disclose any reasonable cause of action against any of the defendants; and

2. are otherwise an abuse of the process of the Court.

The absence of a reasonable cause of action

50. The power to summarily dismiss proceedings is an exceptional one. It is to be exercised only in circumstances where the absence of a cause of action is clearly demonstrated. [43] However in my view, that test is met in the present case.

    43. See General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129 per Barwick CJ and the authorities cited therein.

51. The gravamen of the plaintiff’s complaint appears to be that he was subject to discrimination, and was denied procedural fairness in the District Court proceedings. So much is evident from references in the statement of claim to (inter alia):

1. Judge Gibson having a “duty” to decline to hear the matter “until such time as [the plaintiff] could hear”; and

2. the necessity to retry the District Court proceedings in circumstances where the plaintiff is given “equal access to the Court”.

52. To the extent that the statement of claim seeks to plead an action in negligence, it appears to do so on the basis of an assertion that the defendants owed the plaintiff a duty of care to ensure that he was afforded procedural fairness. In my view, the plaintiff’s complaints do not disclose a cause of action against any defendant. The first, second, third, fourth and fifth defendants did not owe any such duty to the plaintiff. The sixth and seventh defendants were not even parties to the District Court proceedings.

53. In any event, the extracts of the transcript of the proceedings set out above make it abundantly clear that any complaint by the plaintiff that he was denied procedural fairness, or that he was the subject of discrimination on account of his impaired hearing (or anything else), is entirely baseless. Her Honour went to considerable lengths to ensure that the plaintiff was given the right to be heard, and to put his case. Whilst the plaintiff made some isolated comments regarding the quality and clarity of the audio link, a reading of the whole of the transcript makes it clear that the plaintiff was able to engage in the proceedings generally, and engage with her Honour specifically.

54. The plaintiff was not the subject of any discrimination, be it on the basis of his hearing or otherwise. On the contrary, every possible step was taken to ensure that he was afforded his right to procedural fairness. In these circumstances, his reliance upon various provisions of the Disability Discrimination Act 1992 (Cth) is misplaced.

55. For all of these reasons, no cause of action is disclosed in the statement of claim and the proceedings should be dismissed on that basis.

Abuse of process

56. If a question has been disposed of in one case, a litigant cannot be permitted, by changing the form of the proceedings, to set up the same case again. To do so will amount to an abuse of process. [44] Despite his assertion to the contrary, I am satisfied that this is precisely what the plaintiff is seeking to do in bringing proceedings in this Court. In asserting negligence and discrimination on the part of the defendants, the plaintiff is, in effect, seeking to relitigate the issues that were determined against him by Judge Gibson.

    44. Reichel v Macgrath [1889] 14 App Cas 665; Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 393; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414; [1995] NSWSC 136;.

57. Moreover, it is a central tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. The principal qualification to the principle that controversies, once quelled, may not be reopened is provided by the appellate system. [45] As I have already noted, the plaintiff has chosen not to avail himself of his right to seek leave to appeal against the dismissal of the District Court proceedings.

    45. D’Orta-Ekeniake v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at 17; [34]-[35].

56. For these reasons, I am satisfied that the plaintiff's proceedings in this Court amount to a collateral attack on the District Court proceedings in a way which amounts to an abuse of process. That provides a further basis upon which the proceedings should be dismissed.

ORDERS

59. For these reasons, I make the following orders:

1. The proceedings brought by the plaintiff against each of the first, second, third, fourth, fifth, sixth and seventh defendants are dismissed.

2. The Registrar is to forward a copy of this judgment to the plaintiff.

3. The question of the costs of the proceedings is reserved.

4. Absent agreement, each party is to provide written submissions to my Associate within 14 days as to the question of costs, such submissions not to exceed 2 pages in length.

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Endnotes

Decision last updated: 21 May 2021