Fokas v Stack & Ors

LEGISLATION CITED : Vexatious Proceedings Act 2008

Maria Fokas (Plaintiff) Dr J Stack (1st Defendant) PARTIES : Dr R Christou (2nd Defendant) Dr A Saadi (3rd Defendant) Dr J Lee (4th Defendant)

Ex parte COUNSEL : B Shields (1st, 2nd & 4th Defendants) R Sheldon SC (3rd Defendant)

Ex parte SOLICITORS : Guild Legal Limited (1st, 2nd & 4th Defendants) Kennedys (Australasia) Pty Ltd Lawyers (3rd Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/14587 MARIA FOKAS v DR JEFFREY STACK & ORS

JUDGMENT 1 HER HONOUR: By notices of motion dated 14 December 2009 and 15 December 2009 each of the four defendants to proceedings commenced by summons in this Court on 24 September 2009 seek a vexatious proceedings order under Part 2 of the Vexatious Proceedings Act 2008 ("the Act"). The defendants, Drs Stack, Christou, Saadi and Lee practice as dental practitioners. At various times since 1991 the plaintiff has been a patient of each of the defendants.

2 The notices of motion were listed before me for hearing together with a notice of motion filed by the plaintiff on 23 November 2009 in which she sought various orders, both in respect of the proceedings commenced by summons in this Court and various of the proceedings that were commenced against the defendants in the District Court in 2007, 2008 and 2009 each of which have since been dismissed. 3 The plaintiff cited her appearance in respect of her own notice of motion and that of the defendants. 4 Given that the application for vexatious proceedings orders under the Act concerned both the proceedings in this Court and the various proceedings commenced by the plaintiff (and since dismissed) in the District Court, I resolved to hear and determine the plaintiff's notice of motion first. This was at the plaintiff's urging and with the concurrence of counsel for the defendants. 5 The plaintiff relied upon an affidavit in support of the orders sought by motion. She also advanced oral submissions. I delivered an ex tempore judgment dismissing the motion whereupon the plaintiff collected her materials from the bar table and left the courtroom in a manner which clearly signalled her intention not to participate further in the proceedings. 6 After satisfying myself that the plaintiff was properly served with the defendants' notices of motion in accordance with the Uniform Civil Procedure Rules (UCPR), I am of the view that she was made aware of the nature of the proceedings brought against her by the defendants under the Vexatious Proceedings Act and, accordingly, although I have not heard from her as to her attitude to the orders they seek, I am satisfied that she has been afforded the opportunity to be heard as provided for in s 8(1)(3) of the Act. 7 Each of the defendants has standing to bring an application under the Act if I am satisfied, as provided for in s 8(4)(d), in that they are each individuals against or in relation to whom another person has instituted or conducted vexatious proceedings. A vexatious proceeding is defined in s 6 of the Act to include the following: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 8 On the present application, the defendants place particular reliance on paragraphs (a) and (c) of the definition, namely proceedings that are an abuse of process and/or were instituted or pursued without reasonable grounds. In so far as proceedings that are an abuse of the process (of either a court or tribunal) I am guided by the many examples in the authorities, usually in the context of an application under the UCPR to strike out the proceedings, where proceedings have been held to give rise to an abuse of process, in particular, the pursuit of proceedings that have no prospect of success; the pursuit of concurrent proceedings for substantially the same causes of action and the pursuit of proceedings involving the re-litigation of matters already determined in prior proceedings. 9 Section 8 of the Act provides that a vexatious proceedings order in relation to a person may be made where the Court is satisfied that the person has frequently instituted or conducted vexatious proceedings in Australia. In undertaking that enquiry I am entitled, under s 8(2), to have regard to the proceedings in any Australian court or tribunal, and orders made by any Australian court or tribunal (including proceedings instituted or conducted and orders made before the commencement of the section). 10 The evidence relied upon by the defendants was voluminous, consisting of affidavits from the defendants' solicitors together with materials exhibited to those affidavits including a vast number of reported decisions. Although the defendants have narrowed the terms of the orders they seek, such as to prohibit the plaintiff only from instituting fresh proceedings involving any of them and/or making any application in any legal proceedings involving any of them without first obtaining leave under s 14 of the Act, it is still open to me to consider the vast number of cases between 1998 and 2008 either commenced by or involving the plaintiff (but not involving any of the defendants) in the Land and Environment Court, the Social Security Appeals Tribunal, the Administrative Appeals Tribunal, the Federal Court, this Court and the High Court. (A schedule of these decisions is attached to this judgment.) 11 In each of the fourteen actions the decision was adverse to the plaintiff whether at first instance or on appeal. After close consideration of each of the decisions, the relevant portions of which have been conveniently summarised and analysed in Mr Sheldon's submissions, I am satisfied that the actions commenced by the plaintiff variously against Municipal Councils, State or Federal government departments or other instrumentalities may, at least on some occasions have been instituted on disclosed grounds, they were almost exclusively pursued unreasonably, in the sense of being as persevered or persisted with on appeal in the face of there being no proper basis to challenge the decision.

12 More significantly for the purposes of the present application were three sets of proceedings commenced against various of the defendants in the District Court between October 2007 and May 2009. By October 2009 each of those proceedings were dismissed either as a result of a persistent or continuing failure on the part of the plaintiff to comply with the UCPR under the Court's direction or because it was ultimately determined to be "frivolous, vexatious and without a reasonable basis". In respect of instituting and pursuing each proceeding the plaintiff's conduct is demonstrative of a pattern of conduct where she persistently filed motions that were either incompetent or designed to challenge or seek leave to have set aside interlocutory decisions that issued for the orderly preparation and conduct of the proceedings. This conduct on the plaintiff's part is caught by the extended definition of both "proceedings" and "institute" in relation to proceedings in Part 1 of the Act. 13 What follows is a chronology of the course of proceedings in the District Court, including those matters to which I have referred, and the futile attempt to reinstate or revive the District Court proceedings in this Court to which my earlier judgment refers.

Date Event 22 October 2007 Plaintiff filed a statement of claim against Dr Stack (first defendant) in District Court (Proceedings 4743 of 2007) ('First proceedings in time', dismissed on 13 February 2009) 26 October 2007 Plaintiff filed an amended statement of claim 15 February 2008 Balla DCJ dismissed the plaintiff's motion seeking default judgment filed on 11 February 2008 24 April 2008 Plaintiff filed a further amended statement of claim 26 June 2008 Robison DCJ dismissed the plaintiff's motion and ordered the plaintiff to pay defendant's costs 28 July 2008 Registrar dismissed a further motion filed on 1 July 2008 and ordered the plaintiff to serve affidavit evidence 22 August 2008 Truss DCJ dismissed a further motion filed on 18 July 2008 and ordered the plaintiff to pay defendant's costs 12 September 2008 Plaintiff filed a motion seeking to set aside orders of the Registrar of 8 September that the plaintiff file evidence in compliance with UCPR 31.36(1) 17 October 2008 Registrar dismissed the plaintiff's motion and ordered that the plaintiff serve expert report and pay the defendant's costs 27 October 2008 Plaintiff filed a motion seeking to set aside Registrar's orders of 17 October 3 December 2008 Plaintiff filed an amended notice of motion seeking to set aside Registrar's orders of 17 October 28 January 2009 Plaintiff filed two separate statements of claim against Dr's Christou and Lee (amended on 23 February to include Dr Saadi as a third defendant) in District Court (Proceedings 290 of 2009) ('Second set of proceedings in time': dismissed in June 2009) 13 February 2009 Curtis DCJ dismissed proceedings 4743 of 2007 on the basis of the plaintiff's failure to comply with UCPR 31.36 20 March 2009 Plaintiff filed affidavit stating that she could not provide any further and better particulars as requested by lawyers for Dr's Christou and Lee 25 March 2009 Registrar McDonald ordered the plaintiff to comply with UCPR 31.36 and to respond to request for particulars within 28 days 14 April 2009 Plaintiff filed an affidavit purporting to reply to the request for further and better particulars, together with a notice of motion seeking to set aside the Registrar's orders of 25 March, and leave to amend the statement of claim 24 April 2009 Garling DCJ ordered plaintiff to comply with UCPR 31.36 by 5 June 2009, and to serve on defendants draft proposed statements of claim 6 May 2009 Plaintiff served proposed amended statements of claim 7 May 2009 Plaintiff filed a motion seeking to set aside the orders of Garling DCJ on 24 April and served a second version of the proposed amended statements of claim 12 May 2009 Plaintiff filed a second statement of claim against Dr Stack in District Court (Proceedings 2008 of 2009)- not materially different from statement of claim in proceedings 4734 of 2007 ('Third proceedings in time' and the second against Dr Stack, dismissed on 30 October 2009) 15 May 2009 Plaintiff served a third version of the proposed amended statements of claim against the first and second defendants in proceedings 290 of 2009 25 May 2009 Plaintiff filed a motion seeking an order for summary disposal and an order that the defendants file defences, and for leave to file the third proposed amended statements of claim dated 15 May 2009 29 May 2009 Registrar ordered all notices of motion be adjourned to a directions hearing on 11 June 2009, and the plaintiff to file an affidavit in support of her motions dated 7 May 2009 and 25 May 2009, by 4 June 2009 1 June 2009 Plaintiff filed a motion and affidavit in support seeking to set aside the orders made by the Registrar on 29 May on the basis that the plaintiff's motions require determination prior to 5 June 2009 5 June 2009 Registrar Fukuda-Oddie ordered that the plaintiff's motion dated 1 June 2009 be adjourned until 11 June 2009 along with all other applications. Plaintiff filed a motion and affidavit in support seeking to set aside the orders made by Registrar Fukuda-Oddie. 11 June 2009 Garling DCJ dismissed the plaintiff's motions dated 7 May, 25 May, 1 June and 5 June 2009, and dismissed Proceedings 290 of 2009 against Dr Christou on the basis that the claim was frivolous, vexatious and there was no reasonable cause of action. He ordered the plaintiff to pay Dr Christou's costs 22 June 2009 Plaintiff filed a motion seeking default judgment, which was listed for hearing on 23 June 23 June 2009 Garling DCJ dismissed Proceedings 290 of 2009 against Drs Saadi and Lee on the basis that the claim was frivolous, vexatious and there was no reasonable cause of action. He ordered the plaintiff to pay the defendants' costs 9 July 2009 Plaintiff filed a notice of intention to appeal in the Supreme Court in relation to the dismissal of proceedings 290 of 2009 11 August 2009 Plaintiff filed a motion that sought various orders including an order to revive proceedings 4743 of 2007 which were dismissed in February 2009 4 September 2009 Registrar dismissed plaintiff's motion to revive proceedings 4743 of 2007 24 September 2009 Plaintiff filed a summons in the Supreme Court (proceedings 14587 of 2009), naming Dr's Stack, Christou, Saadi and Lee as defendants, seeking orders setting aside orders made by the District Court and transferring to this Court the Proceedings 2008 of 2009; setting aside the dismissal of Proceedings 290 of 2009 and extending the originating process in Proceedings 290 of 2009; together with a claim for determination of an issue concerning the meaning of the word 'treatment' 12 October 2009 Registrar Bradford dismissed the summons in proceedings 14587 of 2009 19 October 2009 Plaintiff filed a motion seeking to set aside the orders by Registrar Bradford dismissing proceedings 14587 of 2009 25 October 2009 Plaintiff filed a motion seeking an order staying the orders made by Registrar McDonald in proceedings 4743 of 2007 on 4 September 2009 30 October 2009 Curtis DCJ dismissed proceedings 2008 of 2009 16 November 2009 Plaintiff failed to appear at the motion listed before Associate Justice Harrison. Motion to set aside the order dismissing the summons 14587 of 2009 was dismissed with costs 23 November 2009 Plaintiff filed a further motion in Proceedings 14587 of 2009 seeking: to set aside the orders by Harrison AsJ; extensions of time in the dismissed Proceedings 2008 of 2009 and 290 of 2009; leave to correct the summons in Proceedings 14587 31 May 2010 Fullerton J dismissed motion to set aside the orders of Harrison AsJ and in respect of proceedings in the District Court

14 On the evidence tendered before me I am satisfied that the plaintiff has frequently instituted vexatious proceedings (in particular against each of the defendants in the District Court and more recently in this Court) such as to justify the orders sought by them. Although I have also come to the considered view that her conduct as a litigant in other proceedings set out in the attached schedule reflects a persistent, even a deliberate, failure to appreciate that the unwarranted usurpation of the Court's time and the resources of the court system is productive of waste and undermines the efficient dispatch of the business of courts and tribunals, the orders I make are in the limited terms that each of the defendants seek and not of wider application. 15 Accordingly, the orders I make are as follows: 1. The plaintiff is prohibited from instituting fresh proceedings in any court against any of the defendants without first obtaining leave under s 14 of the Act. 2. The plaintiff is prohibited from making any application in any legal proceedings involving any of the defendants without first obtaining leave under s 14 of the Act. 3. The plaintiff pay the defendants' costs as agreed or assessed of the defendants' motions and of the plaintiff's motion.

Schedule of proceedings commenced by or involving the plaintiff (a) Maria Fokas v Kogarah Municipal Council [1998] unreported. On 9 January 1998, Mrs Fokas filed an application in the NSW Land & Environment Court appealing against an order issued under section 124 of the Local Government Act 199 for the removal of poultry. On 30 March 1998, Assessor Brown dismissed the appeal; (b) Maria Fokas v Kogarah Municipal Council [1998] NSWLEC 133. On 14 April 1998, Mrs Fokas filed a Notice of Motion seeking to set aside the decision of Assessor Brown. In response, the Council filed a Notice of Motion seeking to strike out the appeal. On 25 June 1998, Judge Sheahan determined that the notice of appeal filed by Mrs Fokas did not disclose a competent appeal under section 56A of the Court's jurisdiction and granted the Council's application; (c) Kogarah Municipal Council v Maria Fokas [1999] NSWL LEC 188. On 29 July 1999, Judge Sheahan declared that Mrs Fokas had not complied with section 124 order of the Local Government Act 1993 and ordered compliance of the order for the removal of Mrs Fokas' rooster from her residential property; (d) Maria Fokas v The Department of Family and Community Services [2001] AATA 1012. On 15 March 200, the Social Security Appeals Tribunal decided that Mrs Fokas did not qualify for a Widow Allowance or Widow B Allowance. Mrs Fokas filed an application seeking review by the Administrative Appeals Tribunal of that decision. On 12 December 2001, Senior Member Bullock found that Mrs Fokas did not satisfy the legislative requirements for qualification for Widow B Pension or Widow Allowance. The decision made by the Social Security Appeals Tribunal was affirmed; (e) Maria Fokas v The Department of Family and Community Services [2002] FCA 541. Mrs Fokas filed an application seeking a review of the decision made by the Administrative Appeals Tribunal on 12 December 2001. On 19 April 2002, Justice Conti, dismissed this application; (f) Maria Fokas v Secretary, Department of Family & Community Services [2002] FCAFC 388. Mrs Fokas filed an appeal of the order made by Justice Conti. On 19 November 2002, Justice Emmett found that there was no error in law on the part of the Tribunal and the primary judge was correct in dismissing the appeal. The appeal was dismissed. Justices Stone and Whitlam agreed; (g) Maria Fokas v Kogarah RSL Club [2002] unreported. Mrs Fokas filed a complaint with the Liquor Administration Board. On 18 July 2002, the Board held that it was not satisfied that the material lodged by Mrs Fokas established undue disturbance to the quiet and good order of the neighbourhood. The complaint was finalised subject to a number of conditions. (h) Maria Fokas v Kogarah RSL Club [2002] NSWSC 1096. Mrs Fokas filed an appeal from the decision of the Liquor Administration Board. On 4 December 2002, Master Harrison dismissed the proceedings; (i) Maria Fokas v Secretary Department of Family and Community Services [2003] HCA Trans 468. On 14 November 2003, Justices McHugh and Callinan refused special leave to appeal to the High Court against the decision of Justice Emmett because the application did not raise a question of law, there were insufficient prospects of the proposed appeal succeeding and there was no error on the part of Justice Emmett. The decision of the Full Court was found to be correct; (j) Maria Fokas v Kogarah Council & Anor [2005] NSWLEC 626. Mrs Fokas challenged the validity of development consents of two adjoining properties granted by the Council on 27 June 2005. The consents granted permission to erect an awning, which would span the two properties. Mrs Fokas submitted that the construction of the awning would create a fire hazard. The Council filed a notice of motion seeking that the proceedings be struck out. Mrs Fokas filed a notice of motion seeking that the Council's notice of motion be struck out. On 7 October 2005, Judge Cowdroy dismissed the proceedings and Mrs Fokas notice of motion; (k) Maria Fokas v Kogarah Council & Anor [2007] NSWLEC 735. Mrs Fokas challenged the validity of a development consent granted by the Council to Maria Peppas regarding a residential flat building. The Council filed a notice of motion seeking summary dismissal of the proceedings for want of their disclosing a reasonable cause of action. Mrs Fokas filed a notice of motion seeking that the hearing and determination of the proceedings on the day. On 8 November 2007, Judge Sheahan dismissed the proceedings; (l) Maria Fokas v Kogarah Council & Energy Austalia [2008] NSWLEC 74. Mrs Fokas filed a notice of motion seeking a declaration that a development consent granted by the Council for the construction of an electricity zone substation and association infrastructure be stayed until certain modifications were made pursuant to sections 116F and 96(2) of the Environmental Planning and Assessment Act 1979. Energy Australia, filed a notice of motion seeking that the proceedings be struck out on the grounds that no reasonable cause of action was disclosed or alternatively that the proceedings were frivolous or vexatious. On 1 February 2008, Judge Lloyd found that there was no reasonable cause of action and dismissed the proceedings; (m) Maria Fokas v The Secretary, Department of Education, Employment and Workplace Relations and Anor [2008] AATA 124. Mrs Fokas sought a review to cancel her pension. On 15 February 2008, Senior Member Isenberg affirmed the decision of the Social Security Appeals Tribunal with some variations. (n) Maria Fokas v Kogarah Council & Anor [2008] NSWLEC 98. Mrs Fokas filed a notice of motion seeking that the decision of Judge Lloyd of 1 February 2008, be set aside. On 3 March 2008, Judge Pain dismissed the notice of motion; (o) Maria Fokas v Kogarah Council & Anor [2008] NSWCA 145. Mrs Fokas filed a summons seeking leave to appeal from an order of Justice Pain of 3 March 2008. On 26 June 2008, Justices Allsop and Tobias dismissed the appeal. **********

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