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[2025] NSWCA 117
respondent. Leave to appeal granted; order 1 set aside and order 3 amended as to costs; appeal otherwise dismissed, with Mr Golden to pay the respondents’ costs of the leave application and appeal.
The Court of Appeal upheld a restriction on Joseph Golden bringing further proceedings in New South Wales about CHAPS without the Court’s permission. It found that eight earlier proceedings repeatedly raised substantially the same allegations, lacked reasonable grounds, or tried to reopen matters already decided. Golden’s partial success in an earlier case did not change that assessment: that success concerned apprehended bias in a particular warning-off decision, while other claims were rejected. The Court also said it could decide legal disputes but could not conduct a general investigation into alleged CHAPS fraud. The Court granted leave to appeal but otherwise dismissed the appeal, correcting a duplicated order and a related costs provision.
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2,336 words · generated 06/10/2026
Joseph Golden’s litigation concerned his long-running allegations that the Commercial Horse Assistance Payment Scheme (CHAPS), established in 2007 to assist horse trainers and owners affected by equine influenza, had been fraudulently exploited or mismanaged. He alleged that Racing NSW and associated people were involved, and that politicians and public officials had failed to investigate or were otherwise responsible. The Court of Appeal summarised that history at [8]-[11]. It also made clear that the legal basis for the alleged responsibility of the respondents, former Prime Minister John Howard and Minister Tony Burke, had not been made clear ([8]).
10 cited instruments linked from this judgment.
The immediate dispute arose from proceedings Golden brought against Howard and Burke. Wright J dismissed those proceedings in 2023 under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW). The respondents had also sought an order under the Vexatious Proceedings Act 2008 (NSW), but that part of their application was deferred and later determined by Rothman J ([3]-[6]). Rothman J prohibited Golden, without leave, from instituting proceedings in New South Wales arising from CHAPS or the same or similar facts as those in the current and specified earlier proceedings ([6]).
Golden sought leave to appeal the s 8 order. Payne JA, with Ward P and Ball JA agreeing, granted leave because the restriction affected Golden’s ability to commence future proceedings about the same subject matter. The Court nevertheless held that the order was correctly made. It set aside a separate, superfluous order dismissing the proceedings, amended the related costs order, and otherwise dismissed the appeal ([7], [22], [110]-[112]).
The Court focused on eight proceedings identified by the primary judge, brought between 2019 and 2023. They concerned alleged CHAPS fraud, the conduct of Racing NSW and Mr V’landys, alleged failures by politicians to investigate, and a negligence claim against Golden’s former solicitors ([43]). The Court also addressed Golden’s earlier partial success in Golden v V’landys [2016] NSWCA 300. There, the warning-off decision was set aside for apprehended bias, but claims of improper purpose and misfeasance in public office had been rejected ([44]-[46]).
The statutory inquiry came from ss 6 and 8 of the Vexatious Proceedings Act. Section 6 defines categories of “vexatious proceedings”, including proceedings that are an abuse of process, are instituted or pursued without reasonable ground, or are conducted in a way that harasses or causes unreasonable annoyance, delay or detriment. Section 8 permits an order where a person has “frequently” instituted or conducted such proceedings in Australia ([23], [26]-[29]).
The Court applied a four-step framework: identify the proceedings relied on; decide which are vexatious under s 6; decide whether the person has frequently instituted or conducted them; and decide whether, and how, the s 8 discretion should be exercised. That framework was drawn from Collier v Attorney General (NSW) [2023] NSWCA 273 at [45], and earlier authority referred to there ([35]).
“Frequently” was not treated as a simple numerical threshold. The Court relied on Viavattene v Attorney General (NSW) [2015] NSWCA 44 and Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129. The character and seriousness of the vexatious conduct, and the nature of the proceedings, inform the assessment. The threshold is relatively low ([31]-[33], [101]). The Court found that Golden had repeatedly brought similar proceedings based on essentially the same serious allegations, without proper basis ([102]-[104]).
The findings about the eight proceedings were cumulative but specific. For example, earlier cases had dismissed or struck out claims that sought to revisit the 2011 Racing NSW decisions or alleged misfeasance in public office; later proceedings repeated related allegations against other defendants. The Court concluded that all eight proceedings were pursued without reasonable grounds, were abuses of process insofar as they sought to reagitate decided matters, and included irrelevant or improper allegations that caused or risked harassment and other detriment ([43], [46], [52]-[65], [80]-[100]).
The Court rejected Golden’s complaint that the primary judge failed to take account of his successful 2016 appeal. That success related to apprehended bias in the decision to warn him off race tracks. It did not establish the separate allegations of improper purpose or misfeasance in public office, which the Court of Appeal had upheld as dismissed. Those rejected claims were repeated in later proceedings, so the earlier partial success did not undermine the primary judge’s assessment ([44]-[46]).
Nor did the Court accept that Golden had been denied a fair opportunity to be heard. It noted that he filed ten pages of written submissions and made extensive oral submissions over 17 pages of transcript. It also observed that no adjournment application had been made on health grounds ([39]). On the material before it, the Court found no basis to support allegations that judicial officers had acted corruptly or with bias ([38]).
A further central point was the boundary between adjudication and investigation. The Court drew on GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32. In an adversarial system, the parties identify claims, facts and evidence; the judge determines the issues presented and does not investigate a matter on behalf of society. The Court considered that Golden’s request was, in substance, for a broad investigation into CHAPS, rather than adjudication of a coherent cause of action against an identified defendant ([10]-[11], [41], [107]).
Finally, the Court considered the scope of the order. Restrictions on court access require restraint, as recognised in Proietti v Proietti [2024] NSWCA 48. The order was limited to CHAPS-related proceedings or proceedings arising from the same or similar facts. It did not prohibit Golden from bringing all litigation, and it preserved the ability to seek leave for a properly arguable claim ([36], [106]). Given the history and the Court’s view that similar further proceedings were likely without an order, it held the restriction necessary and appropriate ([108]-[109]).
The judgment applied, rather than replaced, the existing statutory and appellate framework. Before this decision, s 8 required a court to be satisfied that a person had frequently instituted or conducted vexatious proceedings in Australia. Section 6 supplied the relevant statutory categories. The Court restated that “frequently” is contextual and that neither the count of proceedings nor the proportion of vexatious proceedings among all proceedings is, by itself, determinative ([31]-[33]).
The decision also reaffirmed the established multi-stage approach to s 8 applications. Courts identify the proceedings, classify them under s 6, assess frequency, and then exercise the statutory discretion ([35]). For the discretion, the judgment reiterated the importance of restraint and proportionate limits on access to justice, while recognising that repeated futile litigation can burden other parties and court resources ([36], [98], [105]-[109]).
The judgment’s contribution is principally its application of those principles to a repeated course of related litigation. It illustrates that a relatively small group of substantial proceedings may satisfy the frequency requirement where they repeatedly advance serious allegations without proper basis and consume judicial and party resources. That proposition follows the discussion in Potier, particularly the passage quoted at [32], rather than announcing a new numerical test.
The decision did not alter the distinction between the existence of a vexatious proceedings order and the ability to seek permission to bring a particular proceeding. The order here imposed a subject-matter restriction, not a blanket ban; the Court noted that Golden could seek leave if he could identify a properly arguable CHAPS-related claim ([106]). The statutory text of s 8 also permits different forms of order, including prohibitions and other appropriate orders ([23]).
The judgment likewise did not determine whether CHAPS was in fact mismanaged, or whether any person committed fraud. It held that those broader allegations did not establish error in the vexatious-proceedings decision and were not matters for a general judicial investigation in the appeal ([11], [41], [96], [107]). Its legal holding concerns the procedural threshold and discretion under the Vexatious Proceedings Act, not the truth of the underlying accusations.
At [32], the Court reproduced the statement from Potier that frequency “is not to be assessed merely by an arithmetic calculation”. In plain English, courts look at what the proceedings were about and how they were conducted, not just how many there were. Serious, unsupported allegations in substantial cases may carry more weight than a larger number of minor or technical applications.
At [35], the Court set out the four steps for deciding whether to make an order. In plain English, a court must identify the cases relied upon, assess each against the statutory definition, decide whether the pattern is frequent, and then decide what restriction, if any, is justified. The steps guard against treating a litigant’s history as a substitute for examining the actual proceedings.
At [100], the Court concluded that each of the eight proceedings was brought without reasonable grounds and also involved abuse of process and improper or irrelevant allegations. In plain English, the Court’s conclusion rested on the proceedings’ legal and procedural characteristics, not simply on the fact that Golden had lost them.
At [107], Payne JA said the Court “does not play the role of a standing Royal Commission”. In plain English, courts decide legal disputes between parties; they do not conduct broad inquiries into public administration simply because a litigant asks them to investigate suspected wrongdoing.
At [109], the Court said the s 8 order was “necessary and appropriate”. That conclusion reflects the Court’s assessment of the history, the likelihood of further similar proceedings, and the order’s limited subject matter. It does not mean the Court decided the underlying allegations were factually false; it decided that the record justified a restriction on further litigation without leave.
The decision is relevant where a court is asked to make or review a vexatious-proceedings order based on a repeated course of litigation. It is particularly pertinent where proceedings repeatedly raise substantially the same underlying dispute, re-agitate matters already determined, or make serious allegations without identifying a coherent cause of action or a proper evidentiary basis. The Court stressed that the quality of the proceedings matters to the frequency assessment ([31]-[33], [100]-[104]).
The precedent also bears on cases where a litigant seeks to draw public officials or other people into successive proceedings on the basis that they failed to investigate an alleged wrong. The judgment illustrates the importance of identifying how each defendant’s conduct gives rise to a recognised legal claim. The prior proceedings discussed by the Court repeatedly found that Golden had not articulated an intelligible cause of action against the defendants he sued ([41], [50], [55]-[58], [84]-[96]).
It may also be relevant where a litigant treats a partial success in one case as supporting repeated claims on other legal grounds. Here, the 2016 success concerned apprehended bias in a particular decision. It did not establish the later-repeated allegations of improper purpose or misfeasance in public office ([44]-[46]).
The decision does not mean that every unsuccessful claim, every repeated claim, or every serious allegation is necessarily vexatious. The Court relied on the combination of the prior procedural history, the repeated nature of the allegations, the findings made in earlier proceedings, and the absence of reasonable grounds. It also emphasised the need for restraint and proportionate limits on access to courts ([36], [105]-[109]).
The judgment was delivered on 29 May 2025. The supplied judgment contains no decisions made after that date, so it cannot establish how later courts have treated Golden v Howard. It is therefore not possible, from this source alone, to identify subsequent applications of, distinctions from, or criticism of this decision.
The decision itself applies a line of earlier authority. It relies on Viavattene and Potier for the contextual meaning of “frequently”; on Collier for the four-stage analysis; and on Proietti for restraint and proportionality in limiting access to court ([31]-[36]). It also refers to GLJ concerning the adversarial system and the limits on a court’s investigative role ([10]). Those are the authorities the Court used to explain its approach; they are not later treatment of this 2025 judgment.
The prior Golden proceedings discussed in the judgment form part of the factual and procedural history, rather than later treatment of this decision. The Court used them to assess repetition, finality and the character of the claims ([43]-[100]).
The judgment did not determine the truth or falsity of Golden’s underlying allegations about CHAPS. It expressly declined to express a view on whether other people may have engaged in fraudulent or tortious conduct, noting that those people were not defendants and had not had an opportunity to be heard ([96]). Any such question remains outside the decision’s holding.
Nor did the Court decide what evidence or pleading would be sufficient to support a properly arguable future claim. It said that Golden could seek leave if he could identify such a claim, but it did not set out a hypothetical cause of action or decide what facts would satisfy its elements in another proceeding ([106]).
The decision also does not establish a fixed number of proceedings required to satisfy “frequently”. It expressly rejects an arithmetic-only approach and describes the threshold as relatively low, while making the nature and quality of the proceedings relevant ([31]-[33], [101]). The application of that standard will therefore depend on the circumstances of other cases.
Finally, the judgment does not resolve the exact limits of every possible subject-matter restriction under s 8. It upheld the particular order before it because the restriction was tailored to CHAPS and related facts, was not a blanket prohibition, and preserved an avenue to seek leave ([106]-[109]). Questions about the proper scope of different orders would remain fact-sensitive and governed by the statutory text and the need for restraint.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Golden v Howard [2025] NSWCA 117
Hearing dates: 11 April 2025
Date of orders: 29 May 2025
Decision date: 29 May 2025
Before: Ward P at [1];
Payne JA at [2];
Ball JA at [112]
Decision: (1) Leave to appeal granted.
(2) Set aside order 1 made by Rothman J on 1 October 2024.
(3) Amend order 3 made by Rothman J on 1 October 2024 to provide:
(3) that Mr Golden is to pay the costs of the respondents’ notice of motion filed on 24 April 2023 other than those that are the subject of order 1 made by Wright J on 6 December 2023.
(4) Appeal otherwise dismissed.
(5) Mr Golden pay the costs of the respondents of the application for leave to appeal and the appeal.
Catchwords: CIVIL PROCEDURE –– Court of Appeal –– Leave to appeal –– application for leave to appeal against order made under s 8 of the Vexatious Proceedings Act –– no appealable error –– orders varied –– appeal otherwise dismissed
Legislation Cited: Civil Liability Act 2002 (NSW) ss 5B, 5C
Civil Procedure Act 2005 (NSW) ss 56, 57
Vexatious Proceedings Act 2008 (NSW) ss 4, 5, 6, 8
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28
Cases Cited: Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
Collier v Attorney General (NSW) [2023] NSWCA 273
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
Golden v Anderson & ors [2023] NSWSC 97
Golden v Howard & Anor [2023] NSWSC 1418
Golden v Howard (No 2) [2024] NSWSC 172
Golden v Howard [2023] NSWSC 1418
Golden v Howard & Anor [2024] NSWSC 1229
Golden v Koffel [2021] NSWSC 739
Golden v Koffel [2022] NSWCA 8
Golden v Littleproud [2019] NSWSC 120
Golden v V’landys [2015] NSWSC 1709
Golden v V’landys [2016] NSWCA 300
Golden v V’landys [2019] NSWSC 1362
Golden v V’landys [2020] HCASL 205
Golden v V’landys [2020] NSWCA 120
House v The King (1936) 55 CLR 499; [1936] HCA 40
Magill v Magill (2006) 226 CLR 551; [2006] HCA 51
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129
Proietti v Proietti [2024] NSWCA 48
Spencer v The Commonwealth [2010] 241 CLR 118; [2010] HCA 28
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 Victoria International Container Terminal Limited v Lunt (2021) 271 CLR 132; [2021] HCA 11
Viavattene v Attorney General (NSW) [2015] NSWCA 44
Texts Cited: None
Category: Principal judgment
Parties: Joseph Paul Golden (Applicant)
John Howard (First Respondent)
Tony Burke (Second Respondent)
Representation: Counsel:
Applicant (in person)
V Thomas SC (First and Second Respondents)
Solicitors:
Ashurst Australia (First and Second Respondents)
File Number(s): 2024/379672
Publication restriction: None
[This headnote is not to be read as part of the judgment]
Mr Golden made an application for leave to appeal against an order made pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW). The order prohibited Mr Golden from instituting further proceedings relating to the “Commercial Horse Assistance Payment Scheme” (“CHAPS”) without leave of the court. Mr Golden had previously commenced numerous proceedings containing allegations of fraud in the administration of CHAPS. All but one of the proceedings had been dismissed. The remaining case was dismissed in part. Mr Golden has unsuccessfully made allegations against members of the Board of Racing NSW, Commonwealth and State ministers, police, judicial officers, public servants and his former solicitors.
The Court (per Payne JA, Ward P and Ball JA agreeing at [1] and [112] respectively) granting leave to appeal, setting aside order 1 and amending order 3 made by the primary judge and otherwise dismissing the appeal, held:
(1) The order under s 8 of the Vexatious Proceedings Act made by the primary judge was necessary and appropriate: at [105]-[109]. The eight proceedings identified by the primary judge were each “vexatious” within the meaning of the Vexatious Proceedings Act: at [47]-[100]. Mr Golden has “frequently” initiated a number of similar proceedings making essentially the same vexatious allegations without any proper basis: at [101]-[104].
(2) There was no failure by the primary judge to consider proceedings in which Mr Golden was successful. Mr Golden had been successful as a result of the low threshold for a finding of apprehended bias. However, Mr Golden had not succeeded in relation to complaints about improper purpose and misfeasance in public office: at [40], [44]-[46].
(3) Mr Golden has been unable to identify an intelligible cause of action against any person or entity: at [41]. There was no basis for the assertion that judicial officers had acted corruptly or with bias: at [38]. Mr Golden was not denied procedural fairness as he was given an extensive opportunity to be heard: at [39]. The Court cannot act as a Royal Commission or investigative body: at [8], [10]-[11], [41], [107].
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
WARD P: I agree with Payne JA.
PAYNE JA: The appellant, Mr Golden, brought proceedings in the Common Law Division of the Supreme Court against the respondents, the former Prime Minister of Australia, Mr John Howard, and a current Minister, Mr Tony Burke, making various allegations about the administration of the Commercial Horse Assistance Payment Scheme (“CHAPS”). CHAPS was established by the Commonwealth Government in 2007 for the purposes of providing compensation to horse trainers and horse owners adversely affected by Equine influenza virus. CHAPS was introduced by the government led by Mr Howard, prior to the election in 2007 and continued by the Government which replaced Mr Howard’s government, in which Mr Burke was a Minister.
By notice of motion filed on 24 April 2023, the respondents sought orders dismissing the proceedings and against Mr Golden under the Vexatious Proceedings Act 2008 (NSW). In Golden v Howard [2023] NSWSC 1418, Wright J dismissed proceedings brought by Mr Golden against the same respondents as an abuse of process and vexatious pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). In this Court, Mr Golden complained that Wright J failed to address two notices of motion he had filed, one seeking a jury trial and one seeking extensive discovery. As the respondents correctly pointed out, however, Wright J determined to deal first with their application to dismiss the whole proceedings. On the correct construction of Wright J’s order dismissing the proceedings, any earlier notices of motion filed by Mr Golden in the proceedings were also thereby dismissed. On 6 December 2023, Wright J made the following orders:
“1. The Plaintiff is to pay the Defendants’ costs of the Notice of Motion filed on 24 April 2023 insofar as it related to the application for summary dismissal, including the cost of the hearing on 21 August 23, and the cost of the proceedings generally apart from costs on the Notice of Motion filed 24 April 2023 relating to the application under the Vexatious Proceedings Act 2008 (NSW).
2. By 22 December 2023 the Defendants are to file and serve:
a. written submissions and supporting evidence in relation to the orders as to costs sought in prayers 6 and 7 of their Notice of Motion dated 24 April 2023 (Defendants’ Motion);
…
3. By 24 January 2024 the Plaintiff is to file and serve:
a. written submissions in relation to the orders as to costs sought in prayers 6 and 7 of the Defendants’ Motion; and
…
The Court notes that:
5. The parties agree that the gross sum costs application in prayers 6 and 7 of the Notice of Motion dated 24 April 2023 can be dealt with on the papers.”
In Golden v Howard (No 2) [2024] NSWSC 172, Wright J made a gross sum costs order in respect of the proceedings.
As I have said, in the motion filed on 24 April 2023, the respondents also sought orders under the Vexatious Proceedings Act prohibiting Mr Golden from instituting further proceedings relating to the same subject matter without leave. In order to avoid any potential perception of pre-determination, Wright J decided first to determine the summary dismissal application. The application for orders under the Vexatious Proceedings Act was deferred to a later time. There was no objection by any party to Wright J taking that course.
The respondents’ application for orders under the Vexatious Proceedings Act ultimately came before Rothman J. In Golden v Howard & Anor [2024] NSWSC 1229, the primary judge made the following order (Order 2) against Mr Golden under s 8 of the Vexatious Proceedings Act 2008 (NSW):
Pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW), without leave of the Court, the plaintiff, Joseph Golden, is prohibited from instituting proceedings in New South Wales, which arise from allegations concerning a scheme known as the “Commercial Horse Assistance Payment Scheme” or “CHAPS”, or arising from the same or similar facts as those alleged in these proceedings or in any of the following Supreme Court of NSW proceedings, namely proceedings number 2022/189359; proceedings number 2020/322134; proceedings number 2018/233167; and proceedings number 2018/263736.
Mr Golden’s complaints all have at their heart allegations he has been making for many years of fraud in the administration of CHAPS. Mr Golden strongly believes that CHAPS was maladministered principally (but not exclusively) by members of the Board of Racing NSW, including Mr V’landys (CEO of Racing NSW), Mr McGauran (from the Board of Racing NSW) and Mr Sweney (general counsel for Racing NSW). Mr Golden believes that a variety of Commonwealth and State ministers, including the two respondents, are ultimately responsible in some way for this maladministration. The legal basis for this alleged responsibility has never been made clear. In one sense, Mr Golden embraces the conclusion that the precise basis of any legal liability is unclear. Mr Golden asserts that this Court is obliged in those circumstances to conduct an investigation into the possible maladministration of CHAPS. Mr Golden also believes that, because of his attempts to expose the fraudulent exploitation or maladministration of CHAPS, he has been dealt with unfairly and his rights and interests as a horse breeder and trainer have been damaged or destroyed. Mr Golden has provided a significant amount of material which he believes establishes his claims of fraudulent exploitation or maladministration of CHAPS and the loss and damage he has suffered as a result of attempting to expose the exploitation or maladministration of the scheme. Mr Golden fervently desires to have issues concerning whether CHAPS was exploited or maladministered investigated.
Mr Golden has commenced numerous proceedings in the New South Wales Supreme Court, the Court of Appeal and the High Court of Australia seeking to vindicate his claims of serious fraud committed in the administration of CHAPS. In every iteration of Mr Golden’s complaint, the same central cast of alleged participants in the maladministration of CHAPS, including Mr V’landys, Mr McGauran and Mr Sweney, is identified. As time has gone on, Mr Golden has added to his central complaint the politicians involved in the establishment and administration of CHAPS, such as the present respondents, later premiers of NSW (particularly to the extent they were involved in any issues related to horse racing), federal and state police officers, who allegedly failed properly to investigate allegations made by Mr Golden, judges of this Court who have rejected Mr Golden’s claims and the Australian National Audit Office who allegedly failed to uncover and prosecute those responsible for what Mr Golden says is a fraud on the public involved in the administration of CHAPS. Mr Golden described the National Anti-Corruption Commission and the NSW Independent Commission Against Corruption (to which bodies he has made complaints about CHAPS) as being “merry-go-round operators”. Mr Golden submitted that as a result, the investigation and resolution of the issues raised by Mr Golden “will sit on [the NSW Court of Appeal’s] desk, because it's been [on] mine for the last 18 years”.
This Court operates as part of the adversarial system of justice and is not able to conduct a general investigation of the kind sought by Mr Golden for the reasons explained by the High Court in [2023] HCA 32 as follows:
[19] … The adversarial system of justice “leave[s] each party to bring forward the evidence and argument to establish [their] case, detaching the judge from the hurly‑burly of contestation and so enabling [the judge] to view the rival contentions dispassionately”. The adversarial system does not “involve the pursuit of truth by any means” and does not permit the judge to engage in “an inquisitorial role in which [the judge] seeks ... to remedy the deficiencies in the case on either side”. The judge “hear[s] and determine[s] the issues raised by the parties” and does not “conduct an investigation or examination on behalf of society at large”.
[20] … Accordingly, the adversarial system generally requires that a plaintiff be able to identify the claim made and the material facts on which the claim is based, and that a defendant be able to consider and respond to the claim in some meaningful way. If these requirements cannot be satisfied in some way or another then the adversarial system of justice, a principal means by which the rule of law in Australia is maintained, is unable to function. Confined to the exercise of judicial power as understood in a common law adversarial system, no judge can perform these essential functions of making and responding to the claim in the place of the plaintiff and the defendant… (Footnotes omitted)
The evidence before the primary judge consisted, for the respondents, of the affidavits of John Pavlakis, affirmed 24 April 2023 and 20 June 2023 and for Mr Golden, of his own affidavits sworn 2 May 2023 and 5 July 2023.
The primary judge found that the plaintiff had, since 2018, initiated eight vexatious proceedings based on the same underlying grievances relating to alleged maladministration of the CHAPS scheme, all of which were dismissed. These proceedings made allegations about a wide range of individuals, including Racing NSW, politicians, solicitors, and others, alleging systemic fraud and corruption in the management of CHAPS.
The primary judge concluded that Mr Golden had frequently instituted or conducted vexatious proceedings in Australia. His Honour made the order under the Vexatious Proceedings Act set out at [6] above. Mr Golden may still seek leave to commence future proceedings, but only if they are properly framed and disclose a valid cause of action.
Mr Golden sought leave to appeal against the order made by Rothman J under s 8 of the Vexatious Proceedings Act. Despite the breadth of Mr Golden’s written and oral submissions, the only question before the Court is whether Rothman J erred in making the order.
The evidence before the Court on the application for leave to appeal comprised that which was led below being the affidavits of John Pavlakis, affirmed 24 April 2023 and 20 June 2023 and Mr Golden sworn 2 May 2023 and 5 July 2023. In addition, Mr Golden added, without leave, the following materials to the White Folders (the descriptions are taken from the index to the White Folders):
Affidavit not in 27 Feb books – filed 15 March 2023.
Affidavit FILED Post hearing – filed 4 March 2024.
Affidavit FILED Post hearing – filed 11 March 2024.
Affidavit NOT FILED returned – filed 11 March 2024.
In addition, Volume 5 of the White Folder contained reports published by the NSW Parliament Select Committee on the Proposal to Develop Rosehill Racecourse:
Sep 2024 Rosehill Special report 1 – dated 30 September 2024.
Dec 2024 Rosehill Proposal report 2 – dated 6 December 2024.
The second supplementary white folder includes “additional evidence on which the applicant seeks to rely”. It contains five documents which were apparently filed after the hearing in the courts below:
A document titled ‘V’Landys Australia Day 2014’ – date unknown.
An email from the Select Committee on the Proposal to Develop Rosehill Racecourse attaching the NSW Government response to the inquiry of the Select Committee into the Proposal to Develop Rosehill Racecourse – dated 6 March 2025.
An email from the applicant to the Independent Commission Against Corruption and others attaching correspondence – dated 13 March 2025.
An email from the applicant to various NSW Parliamentary officials – dated 17 March 2025.
An email from the applicant to Mr Andy Schmulow (University of Wollongong) attaching correspondence – dated 20 March 2025.
During the hearing in this Court on 11 April 2025, Mr Golden also handed up a 13-page document which he described in oral submissions (pages 22-25 of the transcript). The document comprised:
An Australia Post receipt (allegedly of a document sent to ICAC) dated 1 April 2025.
An email from Mr Golden to the CEO and Chairman of ABC dated 6 April 2025.
An email from Mr Golden to the CEO and Chairman of ABC dated 7 April 2025.
WARD P: I also just want to make clear that you understand that simply because material is included in the court book it does not mean that it's in evidence before us.
No application was made to tender material not before the primary judge as evidence on the appeal. Given that Mr Golden is unrepresented, it is appropriate to regard all of the material in the White Folders which was not before the primary judge and the material which was handed to the Court as submissions made by Mr Golden and not as evidence.
Having regard to the fact that this matter proceeded by way of concurrent hearing and that Mr Golden’s ability to conduct further proceedings about the same subject matter will be affected unless he succeeds in overturning the order made by the primary judge, leave to appeal should be granted. For the reasons which follow, however, I have concluded that the primary judge’s order made under the Vexatious Proceedings Act was correctly made and the appeal must be dismissed, save in respect of the superfluous order which the respondents agreed should be set aside with a consequent modification made to the costs order made by the primary judge I have explained at [7] above.
8 Making of vexatious proceedings order
(1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that—
(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or
(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.
(2) For the purposes of subsection (1), an authorised court may have regard to—
(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and
(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section), and
(c) evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995.
(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons—
(a) the Attorney General,
(b) the Solicitor General,
(c) the appropriate registrar for the court,
(d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings,
(e) a person who, in the opinion of the court, has a sufficient interest in the matter.
(5) An application for a vexatious proceedings order may be made by a person referred to in subsection (4)(e) only with the leave of the authorised court.
(6) A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceedings order in relation to a specified person.
(7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person—
(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in New South Wales,
(c) any other order that the Court considers appropriate in relation to the person.
(8) Orders that may be made by Land and Environment Court The Land and Environment Court may make any one or more of the following vexatious proceedings orders in relation to a person—
(a) an order staying all or part of any proceedings in the Court already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in the Court,
(c) any other order that the Court considers appropriate in relation to proceedings by the person in the Court.
(8A) Orders that may be made by Industrial Court The Industrial Court may make one or more of the following vexatious proceedings orders in relation to a person—
(a) an order staying all or part of any proceedings in the Industrial Relations Commission, whether in Court Session or otherwise,
(b) an order prohibiting the person from instituting proceedings in the Industrial Relations Commission, whether in Court Session or otherwise,
(c) another order the Court considers appropriate in relation to proceedings by the person in the Industrial Relations Commission, whether in Court Session or otherwise.
(9) A vexatious proceedings order does not stay, or prohibit a person from instituting or conducting, any criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person, except as expressly specified in the order.
(10) A vexatious proceedings order does not stay, or prohibit a person from making, a bail application (within the meaning of the Bail Act 2013).
It is not in dispute that the Supreme Court is an authorised court within the meaning of the section and that application was properly made, pursuant to the terms of s 8(4)(d), by a person entitled to make such an application.
“Proceedings” are widely defined under s 4 of the Vexatious Proceedings Act and include each of the proceedings relied upon by the respondents before the primary judge and by his Honour in making the order under s 8 of the Act. As Kirk JA noted in Collier v Attorney General (NSW) [2023] NSWCA 273 at [43], it is “possible that a number of ‘proceedings’ may arise within the context of one case”.
“Vexatious proceedings” are defined in s 6 of the Vexatious Proceedings Act to include:
(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 that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.
The Court may, having regard to the factors in s 8(2) of the Vexatious Proceedings Act, make a vexatious proceedings order under s 8(1) against a person where that person “frequently” institutes or conducts proceedings which satisfy any of the four criteria established by s 6.
Section 5 of the Vexatious Proceedings Act is also significant:
5 Instituting proceedings
(1) In this Act, institute, in relation to proceedings, includes—
(a) for civil proceedings - the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and
(b) for proceedings before a tribunal - the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and
(c) for criminal proceedings - the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and
(d) for civil or criminal proceedings or proceedings before a tribunal - the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.
(2) A reference in this Act to instituting proceedings includes a reference to instituting—
(a) proceedings generally, and
(b) proceedings in relation to a particular matter, and
(c) proceedings against or in relation to a particular person, and
(d) proceedings in a particular court or tribunal.
The principles in relation to the making of an order under s 8 of the Vexatious Proceedings Act have been extensively discussed by this Court.
In Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [49], Leeming JA noted that the issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation, and in order to address whether the conduct was vexatious, it is necessary for the court to have regard in detail to the circumstances in which each of the relevant applications was made.
In Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129, Leeming JA returned the question posed by the statutory test of “frequently” and described the quality of the proceeding which made it vexatious, and the nature of the proceeding itself, as informing the assessment of frequency. His Honour said:
[114] The power to make an order under the Vexatious Proceedings Act is conditioned upon a court being satisfied that the person has “frequently” instituted or conducted vexatious proceedings in Australia. The meaning of a word like “frequently” turns very much on its context; that is no different from many other protean words (such as “adversely affect” and “mistake”: cf Independent Commission Against Corruption v Cunneen [2015] HCA 14 at [2] and [57] and CTM v The Queen [2008] HCA 25; 236 CLR 440 at [7]). It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that “frequently” is a relatively low threshold.
[115] First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of “habitually and persistently” was deliberate, and plainly lowered the threshold condition.
[116] Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the nine applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.
[117] I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of “frequently”. This illustrates the fact that “[t]he issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation”: Viavattene at [49].
[118] Each of those considerations favour “frequently” being a relatively low threshold.
As to the proportion of proceedings “instituted or conducted” which are vexatious compared with proceedings “instituted or conducted” which do not meet that statutory description, Leeming JA found that whether the proportion of all proceedings instituted or conducted by the person which are vexatious is high or low does not bear upon that question. That proportion was, however, relevant to the exercise of discretion in making an order.
The reference in s 6(a) of the Vexatious Proceedings Act to “proceedings that are an abuse of the process of a court” invokes that body of case law in relation to the doctrine of abuse of process: see, for example, UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45. Proceedings may amount to an abuse of process irrespective of the intention of the moving party: Victoria International Container Terminal Limited v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [14], [18]-[23]; see also Collier v Attorney General (NSW) [2023] NSWCA 273 at [56]-[58]. This is reflected in the terms of s 6(d) of the Vexatious Proceedings Act.
In Collier v Attorney General (NSW) [2023] NSWCA 273, this Court summarised the four steps of analysis necessary to determine whether to make an order against a person under s 8 of the Vexatious Proceedings Act:
[45] As the primary judge noted (at FJ [12]), drawing upon Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 at [13]-[15], the following steps are involved in considering whether to make a vexatious proceedings order:
(1) identify the “proceedings” the subject of the application which are said to be vexatious;
(2) determine which, if any, of those proceedings is vexatious within the meaning of s 6 of the Act;
(3) determine (relevantly) whether the person has “frequently” instituted or conducted vexatious proceedings in Australia within the meaning of s 8(1) of the Act;
(4) determine the manner in which the discretion granted by s 8 is to be exercised (if at all).
[22] While a vexatious proceedings order can prohibit a person from commencing proceedings, whether generally or in respect of a specific set of proceedings against specific parties, as Basten JA acknowledged in Potier at [17], the Court should exercise restraint when considering the scope of a vexatious proceedings order, recognising the important principle of open access to justice. His Honour noted that any limitation on access by a person to the court should be “to no greater extent than is proportionate to the needs of the particular case.” See also Teoh (No 8) at [56] where this Court observed that “an order restricting a person’s access to the courts is a very serious matter and thus an order under the VP Act is not to be made lightly”.
[23] In Teoh (No 8), the Court outlined factors relevant to an exercise of the discretion to make a vexatious proceedings order:
“[69] It is clear from the procedural history that the applicant will not or cannot accept that her claims against the Council have been determined by the Land and Environment Court and this Court, and that further attempts to relitigate those claims will be both futile and an abuse of the Court’s process. The procedural history also suggests very strongly that, unless a vexatious proceedings order is made, the applicant will persist in seeking to re-open orders made by this Court. As has been made clear in the judgments already given in the earlier proceedings, the consequences of further applications inevitably will be inconvenience, unnecessary expense and a waste of the Court's limited time and resources. They are also likely to impose an unwarranted burden on the Council should it be forced to respond to further claims made by the applicant concerning the same subject matter.
[70] If there were any doubt about the applicant's unwillingness or inability to perceive that litigation must be brought to an end once claims have been dealt with, they have been dispelled by the written submissions she has filed in opposition to the making of the proposed vexatious proceedings order. The submissions demonstrate a fixed determination to reargue issues that have long since been definitively resolved.”
Despite being invited on numerous occasions to address what he said were the errors made by the primary judge in making the order under s 8 of the Vexatious Proceedings Act, Mr Golden chose in both oral and written submissions principally to focus on complaints about the underlying facts as he sees them; the role of Mr V’landys, Mr McGauran and Mr Sweney, the alleged maladministration of CHAPS, the “embezzlement scheme”, the failure of myriad politicians properly to investigate Mr Golden’s claims and the need for a thorough investigation of Mr Golden’s allegations by the Court. To the extent that the written and oral submissions can be understood as identifying appealable errors made by the primary judge, they appear to be the following:
that a number of judicial officers, including the primary judge, are corrupt, incompetent and have acted with bias towards Mr Golden. Mr Golden asserts, in writing, that some judicial officers belong in jail. In oral submissions, Mr Golden asserted “the last two judges, Justices Rothman and Wright, have decided to engage in perverting the course of justice by sweeping the first defendant's $170 million of a $235 million government approval package to people who were not entitled to it”;
that Mr Golden did not receive a fair hearing “let alone time to explain complexities to biased Judge” and that this arose, in some manner by reason of Mr Golden being in poor health at the hearing before the primary judge;
that the primary judge failed to have regard to the proceeding in which Mr Golden had been successful; and
that the primary judge failed to have regard to evidence of fraud on the part of Racing NSW and others associated with the horse racing industry.
None of these complaints can be accepted. As to the first matter, there is simply no basis to assert that judicial officers, including the primary judge, have acted corruptly, incompetently or with bias towards Mr Golden. No material has been identified which could possibly justify such serious allegations. To the extent Mr Golden’s allegations can be understood, I reject them. It bears repeating that no matter how strongly a litigant feels that he or she is right, the rejection of the litigant’s case does not justify making allegations of serious criminal conduct with no foundation whatsoever.
As to the second matter, the applicant was given an extensive opportunity to make written and oral submissions to the primary judge. His written submissions were 10 pages in length and filed in advance of the hearing. Mr Golden made extensive oral submissions over 17 pages of transcript. I do not discern from that transcript any inability on Mr Golden’s part fully to participate in the hearing before the primary judge. No application for an adjournment was made by Mr Golden on the grounds of ill health (or any other ground). I am satisfied that Mr Golden had an opportunity to be heard about the making of an order under s 8 of the , as s 8(3) requires.
| | Case | Nature of the claim | Orders made | | 1 | Golden v Littleproud [2019] NSWSC 120 | Claim of misfeasance in public office by Mr Littleproud, the Commonwealth Minister responsible for CHAPS. | Proceedings dismissed under UCPR r 13.4(1). | | 2 | Golden v V’landys [2019] NSWSC 1362 | Allegations of corruption in the administration of CHAPS and the decisions made by Mr V’landys of Racing NSW regarding Mr Golden’s thoroughbred trainer licence in 2011. | Statement of claim struck out under UCPR r 14.28. | | 3 | Golden v V’landys [2020] NSWCA 120 | Application for leave to appeal to this Court relating to allegations of corruption in the administration of CHAPS and the decisions made by Mr V’landys of Racing NSW, | Summons seeking leave to appeal dismissed. | | 4 | Golden v V’landys [2020] HCASL 205 | Application for special leave to appeal from the decision in [2020] NSWCA 120. | Special leave refused. | | 5 | Golden v Koffel [2021] NSWSC 739 | Claim in professional negligence in relation to the defendants’ carriage on behalf of Mr Golden of the proceedings seeking to set aside decisions made by Racing NSW. | Proceedings dismissed under UCPR r 13.4(1). | | 6 | Golden v Koffel [2022] NSWCA 8 | Application for leave to appeal from the decision in [2021] NSWSC 739. | Summons seeking leave to appeal dismissed. | | 7 | Golden v Anderson & ors [2023] NSWSC 97 | Claim against six defendants including the then Premier of New South Wales and a number of Commonwealth and New South Wales Ministers and Members of Parliament relating to allegations of misconduct, fraudulent conduct, misrepresentation and other serious allegations concerning the administration of CHAPS, including by Racing NSW. | Proceedings dismissed under UCPR r 13.4(1). | | 8 | Golden v Howard & Anor [2023] NSWSC 1418 | Claim against Mr Howard and Mr Burke relating to allegations of misconduct, fraudulent conduct, misrepresentation and other serious allegations concerning the administration of CHAPS. | Proceedings dismissed under UCPR r 13.4(1) as an abuse of process and vexatious. |
Before addressing the eight proceedings identified by the primary judge as vexatious, it is first necessary to address the details of the one case in the Court where Mr Golden enjoyed a measure of success. In Golden v V’landys [2016] NSWCA 300 this Court allowed an appeal, in part, brought by Mr Golden. In May 2011, Mr Golden wrote letters to Racing NSW accusing Mr V’landys and other officers of Racing NSW of being corrupt and incompetent in relation to CHAPS. Between 23 and 25 May 2011, Mr Golden stood on the southern end of Grafton Bridge with a placard that read “RACING NSW CORRUPT CEO, ROBS TAXPAYERS”. On 30 May 2011, Mr Golden stood outside the office of Federal MP, Ms Jannelle Saffin, in Grafton and held a placard reading, “RACING NSW CORRUPT CEO ROBS TAXPAYERS” and “CHAPS PUBLIC AUDIT REPORTS $220,000,000 MISAPPROPRIATION PUBLIC ENQUIRY NEEDED”. In June 2011, Mr Golden’s horse trainer’s licence was suspended and on 24 June 2011, Mr Golden was “warned off” all racetracks under the control of Racing NSW indefinitely. Mr V’landys participated in the warning off decision. Mr Golden sought judicial review of Mr V’landys’ decisions on the bases of apprehended bias and improper purpose. Mr Golden’s complaint that the same conduct by Mr V’landys constituted the tort of misfeasance in public office was heard at the same time. The primary judge, Adamson J, dismissed Mr Golden’s case: Golden v V’landys [2015] NSWSC 1709.
This Court upheld Mr Golden’s complaint that the warning off was affected by apprehended bias. This was because the relatively low threshold posed by the “double might” test in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 was satisfied by Mr V’landys exercising a power to decide an appropriate punishment for Mr Golden in circumstances where, at the same time, Mr V’landys was demanding that Mr Golden pay him damages and costs for engaging in the same conduct (concerning allegations about CHAPS) as was the subject of the decision to warn him off. The warning off decision was set aside and the matter was remitted to Racing NSW.
Critically, however, this Court upheld the finding of the primary judge in Golden v V’landys [2015] NSWSC 1709 that Mr Golden’s complaints about improper purpose and misfeasance in public office were correctly dismissed. This is important as, in many subsequent cases, Mr Golden has sought again to allege improper purpose and misfeasance in public office against Mr V’landys based on essentially the same facts as were alleged in the 2015 and 2016 proceedings.
[4] Broadly speaking, the statement of claim appears to address three topics arising out of the 2007 Commercial Horse Assistance Payments Scheme (“CHAPS”). The first is the alleged maladministration of CHAPS by Racing NSW. CHAPS is a scheme established in 2007 by the Commonwealth Government to provide financial assistance to eligible recipients for the welfare and ongoing training of horses affected by the outbreak of equine influenza. The CHAPS scheme was meant to be limited to race horses in work, and does not extend to horses spelling. According to the plaintiff, this condition has not been adhered to. Since 2008, the plaintiff has been attempting to get the public moneys of, he says, $250,000,000 expended, reimbursed. It is clear that the plaintiff feels strongly about this issue, as he has held up a placard outside his local member’s office that reads “Racing NSW corrupt CEO robs taxpayers.” He has also held up this placard on the Grafton Bridge. He also seeks $5,000,000, including exemplary damages.
[5] In these proceedings, the plaintiff alleges that CHAPS has been deliberately mismanaged by Racing NSW …
[6] The second topic of complaint is that various public authorities and individuals have responded inadequately to the plaintiff’s allegations concerning CHAPS. These individuals include Mr V’landys and other officials from Racing NSW, NSW racing stewards, NSW police officers, members of NSW Parliament, former premiers of NSW, the current NSW Premier, Federal members of Parliament, the Commonwealth Ombudsman, former holders of Mr Littleproud’s portfolio and former Prime Ministers of Australia. The allegations against many of these authorities and individuals extend to claims of “covering up” the alleged fraud relating to CHAPS. Although the specifics of all of the correspondence are not entirely clear from the pleadings, the plaintiff appears to have been making these allegations since around 2008.
[7] The third topic that the plaintiff has re-canvassed concerns certain decisions made by Mr V’landys in 2011, which were the subject of judgment in the New South Wales Supreme Court in Golden v V’landys [2015] NSWSC 1709 (“the 2015 proceedings”), and the Court of Appeal in Golden v V’landys [2016] NSWCA 300 (“the 2016 proceedings”) (Ex 2).
By notice of motion, Mr Littleproud sought an order dismissing the proceedings under r 13.4(1) of the UCPR. Harrison AsJ found that Mr Golden had not identified an arguable cause of action, the proceedings were frivolous and vexatious and constituted an abuse of process. Her Honour dismissed the proceedings under r 13.4(1) of the UCPR.
Her Honour considered whether she should exercise her discretion to permit Mr Golden to replead to overcome the difficulties in the current pleadings or dismiss those proceedings. Her Honour decided not to grant Mr Golden the opportunity to replead for the reason that Mr Golden is “unable or unwilling to articulate and properly plead a focussed case against the defendant”. Critically, for present purposes, although Mr Littleproud was the person sued by Mr Golden, the essence of Mr Golden’s complaint was directed towards “Mr V’landys and other officials from Racing NSW, NSW racing stewards, NSW police officers, members of NSW Parliament, former premiers of NSW, the current NSW Premier, Federal Members of Parliament, the Commonwealth Ombudsman, former holders of Mr Littleproud’s portfolio and former Prime Ministers of Australia.” That central complaint was the same one advanced in this Court in Mr Golden’s voluminous written submissions and White Folders of materials.
This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.
In these proceedings, Mr Golden sought to prosecute a number of causes of action against Racing NSW, and Mr V’landys. The defendants successfully applied to have Mr Golden’s statement of claim struck out under UCPR r 14.28(1) and the proceedings summarily dismissed under UCPR r 13.4(1).
McCallum J summarised the background to the proceedings and found the statement of claim to be “prolix and confusing”. Her Honour explained that the pleading included passages lifted wholesale from the pleadings in the earlier proceedings, in which Mr Golden was legally represented, combined with lengthy additional commentary obviously written by Mr Golden himself. McCallum J found that Mr Golden’s claims were substantially identical to those in the 2015 and 2016 proceedings I have described at [43]-[45] above. McCallum J found:
[23] It is clear from a comparison of the present pleading with the pleading in the earlier proceedings that Mr Golden seeks in these proceedings to re-litigate many of the claims in the earlier proceedings using additional evidence, being the material he has gathered to support his allegations concerning the alleged rorting of the CHAPS scheme. The statement of claim provides a lengthy and highly detailed account of Mr Golden’s discovery of the alleged fraudulent misallocation of CHAPS funds, the complaints he made and other events that followed. He cites examples of his alleged victimisation by Racing NSW, such as unfair handicapping of his horses compared with other horses (par 162 of the statement of claim), which he attributes to his status as a whistleblower.
[24] The pleading sets out horse-by-horse detail of the events that have troubled Mr Golden, expressed with the most strident criticism of all involved including allegations of incompetent or dishonest trainers destroying horses and rorting the system, bullying stewards giving Mr Golden an unfair run, reckless CHAPS administrators and numerous allegations of CHAPS embezzlements, fraud facilitations and cover-ups.
Racing NSW and Mr V’landys specified four grounds on which the statement of claim should be struck out. The first was that it sought judicial review of the 2011 decisions, which have already been judicially reviewed (see [43]-[45] above). McCallum J held that to the extent that the statement of claim sought to re-litigate the earlier application for judicial review of the 2011 decisions, it was plainly liable to be struck out.
The second objection related to the part of the pleading seeking judicial review of a decision made in February 2017 not to issue a trainer’s licence to Mr Golden. Mr Golden contended that this decision represented a “continuation” of the warning off decision set aside by the Court of Appeal in 2016. McCallum J held that Mr Golden did not provide a coherent account of any justiciable claim. Her Honour was not persuaded that Mr Golden should have leave to replead that aspect of the claim.
The remaining relief specifically concerned CHAPS, which Mr Golden alleged has seen the embezzlement of hundreds of millions of dollars of public funds. McCallum J held that none of Mr Golden’s claims sought to vindicate any arguable right of Mr Golden’s. Even if they did, it would clearly not be open to the Court to grant relief in such terms.
Finally, the defendants submitted that the statement of claim contained allegations which were vague or imprecise and that the defendants could not plead to such allegations. McCallum J agreed. By way of example, the pleading asserted:
2007 DAFF MP PETER McGAURAN self interest approval & CHAPS fraud facilitation of $235m public funds mismanagement paid un named, un trialled & un raced horses was illegitimate because correct horse budget numbers calculates less than $50m ie. CHAPS unnecessarily paid horses that [may] never qualify or attain income earning potential. Racing NSW was the only horse industry of four or five other horse racing organisations that a nameless faceless Minister approved CHAPS outside of guidelines, & please re read paragraphs 44 to 50 because RNSW confidence tricks are now ended.
[Emphasis in original]
The allegations about Mr McGauran, mismanagement of CHAPS, illegitimate payments to unnamed and untrialled racehorses and Racing NSW have a strong similarity to the allegations made in all of the eight cases identified by the primary judge.
This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.
Mr Golden sought leave to appeal against McCallum J’s decision. This Court refused leave to appeal.
Macfarlan JA (with whom Basten and Meagher JJA agreed) held that Mr Golden did not demonstrate any arguable error on the part of the primary judge:
[29] … In my view leave to appeal should however be refused on the basis that Mr Golden’s proposed appeal is hopeless. In summary, Mr Golden did not demonstrate the existence of any even arguable error on her Honour’s part.
Macfarlan JA held that her Honour was clearly correct to dismiss the proceedings so far as they constituted an attempt to challenge the 2011 decisions. Those decisions were the subject of earlier proceedings in which judicial review and damages for misfeasance in public office were sought. The claim for damages for misfeasance in public office was rejected in respect of both decisions (including in the 2016 Court of Appeal decision). As was pointed out in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34], it is a “central and pervading tenet of the judicial system … that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”. This is not such a circumstance.
As McCallum J had pointed out, the 2017 trainer’s licence at issue would (if it had been granted) have expired on 30 June 2017. There was no utility in allowing Mr Golden the opportunity to challenge the 2017 decision. Mr Golden said that he would only be able to apply for a licence and resume business, and therefore to fund the substantial expense that that would involve, if he were able to obtain compensation from the defendants in respect of the losses he alleges he suffered as a result of the 2011 decisions. The prospect of achieving such compensation was foreclosed by the decision of this Court in 2016.
As to the defendants’ alleged involvement in embezzlement and a cover-up of misconduct under the CHAPS scheme, this Court held that Mr Golden did not demonstrate any arguable error on the part of the primary judge. No arguable error was shown in her Honour’s conclusion that Mr Golden’s claim for damages for misfeasance in public office was impermissible as an attempt to relitigate the claim to like effect made and rejected by this Court in its 2016 decision.
This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.
This application for special leave to appeal does not identify any question of law of general importance that would warrant the grant of special leave to appeal. In addition, the appeal foreshadowed by the application does not enjoy sufficient prospects to warrant the grant of special leave to appeal. The application should be dismissed.
Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), we direct the Registrar to draw up, sign and seal an order dismissing the application.
Mr Golden initiated proceedings against Ross Koffel and Koffels Pty Ltd, being a solicitor and a firm of solicitors who represented him in challenging the decisions of Racing NSW in respect of the 2011 conduct, which led to Mr Golden’s partly successful 2016 case in this Court. Mr Golden claimed professional negligence on the part of his solicitors. The defendants sought orders that the proceedings be dismissed pursuant to r 13.4 of the UCPR and, in the alternative, the amended statement of claim filed on 26 November 2020 be struck out in whole or in part pursuant to r 14.28 of the UCPR.
Cavanagh J noted at the outset that the statement of claim on which the plaintiff relied was an extensive document. Many of the allegations of fact contained in the amended statement of claim related more to Mr Golden’s grievances against Racing NSW and Mr V’landys than his grievance against the defendants. Having said that, Mr Golden summarised the case against the defendants in paragraphs 31 to 36 of the amended statement of claim. It was described as a claim in negligence.
Mr Golden’s case was summarised by Cavanagh J (at [26]) as comprising the following allegations:
The defendants failed to present evidence on the hearing which should have been presented. In particular, he identified a failure to present evidence from the Clarence River Jockey Club. He says that if such evidence had been obtained and presented on the hearing the outcome of the case before Adamson J would have been different.
At the time that he provided instructions to the defendants he provided, by way of a document, diagrammatic evidence as to the logout of the track and pertinent information which was critical to the issues he wanted raised in the proceedings. He says that the defendants failed to present this evidence to the court.
The defendants failed to follow his instructions as to the type of case that he wanted to pursue and then failed to adduce the evidence that he wanted to be adduced. He says, and I quote, “If the evidence had been produced the result would have been different and I would have been getting my trainer’s licence back”. He also says that Mr V’Landys would have been removed from his position in Racing New South Wales.
The essence of Mr Golden’s complaint was that his solicitors failed to pursue allegations of misappropriation of public funds with sufficient vigour and failed to cross-examine Mr V’landys about the alleged CHAPS misappropriation. The solicitors allegedly “failed to present critical evidence, including critical evidence relating to corruption and fraud” and “failed to expose the fraud and coverup and failed to highlight certain matters which [Mr Golden] wanted highlighted”.
Cavanagh J held that Mr Golden’s claim for professional negligence against his solicitors was based on the assertion that they failed to follow his instructions by failing to obtain and adduce certain evidence and failing to conduct the hearing, for example, by cross-examining Mr V’landys on certain matters in a way which Mr Golden wanted.
Cavanagh J held that all of the allegations raised by Mr Golden (that could lead to any potential relief on his part) fell squarely within the description of work done either out of Court, which leads to a decision affecting the conduct of the case in Court, or work actually done in court, that is during the conduct of the hearing. In those circumstances, Cavanagh J held that Mr Golden’s claim was bound to fail. Cavanagh J dismissed the proceedings under r 13.4(1) of the UCPR.
This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.
In Golden v Koffel [2021] NSWCA 8, Mr Golden applied for leave to appeal from the decision of Cavanagh J. Gleeson and White JJA dismissed the summons for leave to appeal. Their Honours noted Mr Golden’s allegation that he instructed Mr Koffel to take Mr V’landys and Racing NSW to court for misappropriation of public funds, and that Koffels failed to present to court documents produced on discovery which, according to Mr Golden, confirmed a fraud and cover up by Racing NSW and further misappropriation of funds. The basis for this allegation was that, according to Mr Golden, CHAPS funding was specifically directed only to in-work horses. Mr Golden alleged that critical evidence which was not presented to the court but which was available through discovered documents and other papers would, if produced, have demonstrated that millions of dollars of public funds were misapplied. He alleged that “virtually everything to do with CHAPS fraud was struck out of 2015 hearings”. This was an allegation that evidence of the fraud was not adduced by Koffels in the proceedings, rather than that evidence was tendered but rejected. Mr Golden also alleged that, had he been properly represented, the respondents would have joined Racing NSW’s general counsel, Mr Sweney, as a defendant.
The Court noted that Cavanagh J summarily dismissed the proceeding on the ground of advocates’ immunity from suit. Cavanagh J said:
[41] Advocates’ immunity from suit extends to protect a solicitor involved in the conduct of litigation in Court in certain circumstances. In Giannarelli v Wraith (1988) 165 CLR 543 [at 559 to 560], the court held that advocates’ immunity extends to work done out of Court, which leads to a decision affecting the conduct of the case in Court.
[42] As Mason CJ explained:
“The problem is: where does one draw the dividing line? Is the immunity to end at the courtroom door so that the protection does not extend to preparatory activities such as the drawing and settling of pleadings and the giving of advice on evidence? To limit the immunity in this way would be to confine it to conduct and management of the case in the courtroom, thereby protecting the advocate in respect of his tactical handling of the proceedings. However, it would be artificial in the extreme to draw the line at the courtroom door. Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity.”
[43] That statement was confirmed in D'Orta-Ekenaike v Victoria Legal Aid [(2005) 223 CLR 1] at [86]:
“there is no reason to depart from the test described in Giannarelli as work done in court or ‘work done out of court which leads to a decision affecting the conduct of the case in court’ or … ‘work intimately connected with’ work in a court. (We do not consider the two statements of the test differ in any significant way.)”
[44] Whilst in Attwells v Jackson Lalic Lawyers Pty Ltd [(2016) 259 CLR 1] the High Court held that the advocates' immunity does not extend to acts or advice which may lead to a settlement, nothing in Attwells tends to detract from the essential statement of principle set out in both Giannarelli and D'Orta.
[45] The plaintiff's claim is that the defendants failed to follow his instructions, but he means by that that the defendants failed to obtain and present evidence that he wanted presented, and the defendants failed to conduct the hearing in such a way, that is by presentation of evidence that he says should have been presented and cross-examination of witnesses on topics that he says should have been raised.
[46] In my view all of the allegations raised by the plaintiff (that is which could lead to any potential relief on his part) fall squarely within the description of work done either out of Court, which leads to a decision affecting the conduct of the case in Court, or work actually done in court, that is during the conduct of the hearing. (Footnotes supplied)
[35] … where a final order has been made resolving litigation, a claim that ‘but for the advocate's conduct, there would have been a different result’ is objectionable as a matter of public policy. That is because the consequences of the decision about which the claimant wishes to complain are ‘consequences flowing from … a lawful result … lawfully reached’. The advocate's immunity is, therefore, justified as an aspect of the protection of the public interest in the finality and certainty of judicial decisions by precluding a contention that the decisions were not reached lawfully.
[…]
[52] … The advocate's immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions, values at the heart of the rule of law, are not undermined by subsequent collateral attack. The operation of the immunity may incidentally result in lawyers enjoying a degree of privilege in terms of their accountability for the performance of their professional obligations. But this incidental operation is a consequence of, and not the reason for, the immunity ...(Footnotes omitted)
[20] Mr Golden fails to appreciate that the Court is not a commission of inquiry. Its function is to determine issues between parties according to law. It is clear that, in accordance with the law as to advocates’ immunity established by the High Court, the claims Mr Golden would seek to ventilate against the respondents would be doomed to fail for the reasons identified by the primary judge.
[21] In short, there is not even an arguable basis upon which the applicant’s proceeding could succeed. The summons for leave to appeal from the orders below should be dismissed with costs.
In Golden v Anderson [2023] NSWSC 97, Mr Golden initiated another set of proceedings against six defendants including the then Premier of New South Wales and a number of Commonwealth and New South Wales Ministers and Members of Parliament for misconduct, fraudulent conduct, misrepresentation and other serious allegations concerning alleged failures to enquire about the administration of CHAPS. The defendants sought orders that the proceedings be summarily dismissed.
The first defendant was then the Member for Tamworth and was appointed NSW Minister for Hospitality and Racing on 21 December 2021. Prior thereto, he had held no portfolio relevant to Mr Golden’s complaint. The second defendant was the Member for Epping and was then the NSW Premier. He had never held a specialist ministerial portfolio relating to Racing NSW. The third defendant was the Member for Clarence. He had never held a portfolio connected with racing.
The fourth defendant was elected to the Federal Senate in 2016, was a Cabinet minister, and then held the Ministry of Agriculture, Fisheries and Forestry and Ministry of Emergency Management since 1 June 2022. He was a Cabinet minister between 2017 and May 2022 holding various ministries. The fifth defendant had been in Federal Parliament since September 2013. He was formerly head of the National Party and Deputy Prime Minister and had held various Cabinet positions. The sixth defendant was elected to the House of Representatives in 2013 and held various Parliamentary positions, including assistant to the Deputy Prime Minister from February 2022.
The case against each of these defendants was set out in the amended statement of claim, a 46-page document comprising 101 paragraphs. Very few of the paragraphs mentioned the defendants. As set out in the section headed “Relief Claimed,” the plaintiff sought 47 declarations. Only a small number of those suggested declarations related to the defendants.
Cavanagh J found that these proceedings were another set of proceedings pursued by Mr Golden arising out of essentially the same subject matter. The plaintiff had been unsuccessful in those earlier proceedings (save the limited success relating to the “warning off” decision in the 2016 proceedings in this Court). Mr Golden sought to agitate essentially the same issues against these defendants, all of whom are or were members of State or Federal Parliament:
[21] There can be no doubt that the plaintiff has a long-held grievance against those responsible for the administration of the CHAPS scheme, and indeed those responsible for the fact that his trainer’s licence was suspended and he was warned off all horse racing tracks under the control of Racing NSW. That is apparent from each of the cases which he has thus far pursued. On my reading of each of the earlier judgments, the plaintiff has sought to agitate very similar issues, focusing on what he alleges was the misconduct of those persons to whom he attributes the mismanagement of the CHAPS scheme and what has happened to him in terms of his career in the racing industry. Even though he is seeking orders against current members of State and Federal Parliament in these proceedings, the focus of his case and submissions is, once again, the conduct of certain persons 15 years ago.
[22] The allegations made by the plaintiff are essentially the same allegations he has made in his earlier cases. It is thus important for the purposes of the motions to understand why the plaintiff maintains that he has a case against each of the current defendants.
[23] The plaintiff provided extensive oral submissions as to the cause of action he is pursuing. I asked him to identify his cause of action. He said that he is pursuing a cause of action in deceit against each of the defendants. He said that each of the defendants were members of Parliament sworn in to protect taxpayers and to do the right thing. He said all of them were part of some sort of “protection racket” in respect of their positions. On being pressed, the plaintiff said that he was also pursuing a negligence action and an action that each of the defendants had failed to provide documents that he had sought.
[24] I also asked the plaintiff what he really wanted from these proceedings. He said that what he really wants is for the Court to refer certain persons to the Office of the Director of Public Prosecutions; secondly, he wants his trainer’s licence back; and, thirdly, he seeks compensation for his loss of income in the sum of $10 million.
[25] It is apparent from a review of all the earlier judgments that that is what the plaintiff has always wanted and what he continues to seek.
[26] I also asked the plaintiff what (to his mind) each of the defendants had done or failed to do. He said that all of them had failed to take up his request to investigate or commission inquiries into the conduct of Racing NSW and those other persons about whom he has been complaining for the past 10 years or so. As I understand his case, it is a case in deceit on the basis that the defendants failed to investigate his allegations or things that happened quite some years before they were either in Parliament or had any ministerial responsibility in respect of Racing NSW.
[27] As I have said in an earlier case involving the plaintiff, the Court should have regard to the fact that unrepresented plaintiffs generally do not have legal training and may not understand the niceties of pleadings. However, it is still incumbent upon the plaintiff to plead facts and provide sufficient detail in the statement of claim that will enable the defendants to understand the case they have to meet.
[28] Although there is some general reference to the defendants as a whole earlier in the statement of claim, it is not until paragraph 53 that the plaintiff introduces the defendants as parties against whom he is seeking orders. That is because, similar to his earlier cases, the first 52 paragraphs focus on the conduct of Mr V’landys and those other persons against whom the plaintiff has grievances.
[29] As set out in paragraph 53 of the amended statement of claim (page 34, under the heading “Pleadings and Particulars”) and following, the plaintiff pleads that the defendants (naming them individually in various paragraphs) failed to investigate CHAPS frauds and embezzlement or engage with compensation or the plaintiff’s licence reissue. Further, the plaintiff seeks a raft of declarations, none of which seem on the face of the pleadings to have anything to do with the current seven defendants. It is only commencing from paragraph 44 (page 9, under the heading “Relief Claimed”) that the plaintiff seeks orders against the current seven defendants as follows:
44. A relief & order that deceit, intimidation, negligence, embezzlement, discrimination & or other torts against plaintiff was exercised by defendants by not exposing RN & trainer McLeod CHAPS facilitated fraud covered up & or recovering RN $110m to $137m embezzled misappropriated CHAPS funds.
45. A declaration RN & trainer McLeod fraud cover up with RN $137m CHAPS theft in my opinion does not satisfy NSW Equine Influenza $25m, 2007 cancelled race meetings over three months & $110m to $137m is recoverable including 15 years justice interest, plaintiff losses for accountability available & intentionally avoided.
46. A declaration State & Commonwealth Minister defendants listed today, & others are engaged in codes of silence & deceit to protect one another & secure post Government retirement positions as Directors of Boards as Racing NSW.
47. A declaration all defendants tacitly supported corruption.
48. Damages $10m including exemplary damages.
[Emphasis in original]
Further, Cavanagh J concluded that it was not apparent how success in any cause of action pursued by the plaintiff against any of the defendants could lead to what the plaintiff sought; that is, damages in the amount of $10 million, return of his horse racing licence, and referral to the NSW Office of the Director of Public Prosecutions. None of the persons sued in the case had anything to do with CHAPS. None of the persons sued were responsible directly or indirectly for Mr Golden losing his licence or being warned off race tracks in New South Wales. None of the persons sued were responsible or had anything to do with Mr Golden losing income from his core business over the past 10 years. Further, Mr Golden did not say in the amended statement of claim how such persons were responsible or could be responsible.
Finally, Mr Golden made a number of what may be termed scandalous allegations. Those allegations were made against many people who have been involved in dealing with Mr Golden’s grievances since they first arose and include judicial officers and other persons involved in his cases. Cavanagh J dismissed the proceedings under r 13.4(1) of the UCPR.
This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.
[1] Mr Golden, the plaintiff, strongly believes that the Commercial Horse Assistance Payment Scheme (CHAPS) established by the Commonwealth Government in 2007 for the purposes of providing a form of compensation to horse trainers and horse owners adversely affected by equine influenza virus was fraudulently exploited or maladministered, including by those associated with Racing NSW. He also believes that, because of his attempts to expose that fraudulent exploitation or maladministration, he has been dealt with unfairly and his rights and interests as a horse breeder and trainer have been damaged or destroyed. Mr Golden has provided a significant amount of material which he believes establishes his claims of fraudulent exploitation or maladministration of the CHAPS and the loss and damage he has suffered as a result of attempting to expose the exploitation or maladministration. He fervently desires to have issues of whether the CHAPS was exploited or maladministered investigated by some proper authority.
[2] This Court is not, however, the authority which can conduct such a broad-ranging investigation in the course of these proceedings.
Wright J held that the real issue was whether a reasonable cause of action existed, not simply whether one was pleaded: Spencer v The Commonwealth [2010] 241 CLR 118; [2010] HCA 28 at [22]–[23] (French CJ and Gummow J); O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3] (Macfarlan JA, Beazley P and Ward JA agreeing).
Wright J identified two torts allegedly committed by the two defendants, namely deceit and negligence. His Honour found that no other causes of action against the two defendants were specifically identified.
As to the claim of deceit, Mr Golden did not plead allegations that would satisfy the elements of this tort identified by the High Court in Magill v Magill (2006) 226 CLR 551; [2006] HCA 51. Mr Golden’s statement of claim did not allege that either of the two defendants made a false representation, knowingly or carelessly, with the intention of Mr Golden relying on it. Nor was it alleged that Mr Golden acted in reliance on any such representation by either defendant or that the loss or damage claimed was caused by his reliance on such a false representation. Mr Golden did not point to any material, in the statement of claim or otherwise, which suggested that he could plead each of the elements of such a cause of action, if given the opportunity to replead.
As to the claim of negligence, the pleading of a reasonable cause of action in negligence requires that allegations sufficient to establish each of the elements of that cause of action are set out in the statement of claim. The elements of the tort of negligence at common law can be described, based on what was said by McHugh J in Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [88] in conveniently simple terms sufficient for present purposes, as follows:
There was a duty of care, recognised by law, owed by the defendant to the plaintiff;
There was a breach of that duty; and
There was a causal connection between the damage sustained and the breach of duty, which damage was not too remote from the breach.
In Mr Golden’s case, however, attention must also be paid to the relevant provisions of the Civil Liability Act 2002 (NSW), in particular ss 5B and 5C, when considering whether a reasonable cause of action has been pleaded. Wright J observed that in general terms and apart from the reference to Mr Burke being allegedly “negligent” in prayer 3 and “negligence” in prayer 15, there was nothing in the statement of claim which amounted to a viable attempt to plead a claim in negligence against the two defendants relating to the loss allegedly suffered by Mr Golden. It was not alleged that either of the defendants owed him a duty of care, nor were there any allegations which would have supported a conclusion that such a duty was owed. There was no allegation that either of the defendants breached a duty of care owed to Mr Golden by failing to take precautions that a reasonable person in the defendants’ position would have taken against any identified risk of harm. Nor was there any allegation that any such breach caused the loss and damage claimed to have been suffered by Mr Golden. Wright J concluded that Mr Golden did not plead, adequately or at all, the required elements of a claim in negligence against either defendant and did not point to any other material which would provide any substantial support for the required elements.
[59] Many of the allegations in the pleadings and some of the prayers for relief involve very serious allegations against persons not named as defendants and some are confusing and quite unclear as to what precisely is being alleged against whom. These deficiencies are likely to have the consequence that the proceedings, if they proceeded, would be characterised by substantial delay and would be productive of serious and unjustified trouble or harassment, not only to persons named as parties but also to other persons whose conduct is impugned in intemperate language often without any appropriate identification of how the defendants would be legally liable in relation to that conduct. Examples of the problematic allegations and language are spread throughout the prayers for relief and pleadings and particulars in the statement of claim, and these have been quoted in full or summarised above. It is unnecessary to repeat them here.
[60] In addition, given the terms in which the claims for relief and the pleadings and particulars are expressed, it can be concluded that some parts are unintelligible, ambiguous, or so imprecise that the defendants are not properly informed of the substance of the case they are required to meet.
[61] Furthermore, as noted in the table provided at [11] and as implicitly accepted by Mr Golden in par 82 of the pleadings, he has attempted to raise essentially the same underlying issues in a significant number of earlier proceedings in this Court which have been unsuccessful, except for the setting aside in Golden v V’landys [2016] NSWCA 300 of the decision of Mr V’landys of 24 June 2011 to warn off the plaintiff from all race tracks controlled by Racing NSW. In my view, Mr Golden’s attempts to raise these issues in successive proceedings is contrary to the principles of finality and the timely and efficient administration of civil justice.
Wright J considered that dismissing the proceedings was the most appropriate way in which to give effect to the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In doing so, Wright J paid particular attention to the objects set out in s 57 of that Act: the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of resources; and the timeliness and cost of the proceedings. Wright J also had regard to the dictates of justice including, in addition to ss 56 and 57, the use that Mr Golden had made in these and previous proceedings of the opportunity to pursue a claim against these and other defendants, and the degree of injustice in the circumstances that would be suffered by Mr Golden and by the two named defendants as a consequence of any order made in these proceedings. Wright J found that the proceedings should be dismissed as an abuse of process and vexatious.
This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.
As Leeming JA observed in Potier, the conclusion that a person has “frequently” instituted vexatious proceedings is a relatively low threshold.
It is obvious that Mr Golden has been fixated on what he believes is the fraud and maladministration he has uncovered in relation to CHAPS. That strong belief, however, does not permit the making of indiscriminate serious allegations of fraud in the absence of credible evidence. Mr Golden has initiated a number of similar proceedings making essentially the same key allegations of fraud without any proper basis.
I accept that Mr Golden has a long-held grievance against those responsible for the administration of the CHAPS scheme, particularly Mr V’landys, Mr McGauran and Mr Sweney from Racing NSW. In each of the cases I have described above, Mr Golden has agitated very similar issues, focusing on what he alleges was the misconduct of essentially the same cast of characters. The same grave but essentially unsupported allegations of fraud are advanced in every case. Those serious allegations are nearly always advanced against the central cast of characters and a large number of non-parties.
The primary judge was correct to conclude that Mr Golden has “frequently” instituted or conducted vexatious proceedings in Australia within the meaning of s 8(1) of the Act.
No error, let alone House v The King (1936) 55 CLR 499; [1936] HCA 40 error, has been shown in the exercise of discretion by the primary judge to make an order under s 8 of the Vexatious Proceedings Act*.*
The order made by the primary judge was appropriately tailored to proceedings arising from allegations concerning CHAPS including the proceedings Mr Golden has already unsuccessfully prosecuted. There is no blanket prohibition upon litigation by Mr Golden. In addition, if Mr Golden could identify a properly arguable claim against any person or entity relating to CHAPS he is able to seek leave under s 14 of the Vexatious Proceedings Act.
The essence of Mr Golden’s complaint about the primary judge’s decision was that his Honour allegedly failed properly to take into account the material he says demonstrates the underlying allegations of fraud in the administration of CHAPS. Mr Golden’s complaint rather emphasises the correct exercise of discretion by the primary judge. That material does not establish an arguable cause of action against any person or entity. Further, as I said at the outset, this Court does not play the role of a standing Royal Commission. Mr Golden, in the course of his address in this Court, stated that he understood the Court’s limited role but, nevertheless, deliberately sought to use the processes of the Court to prosecute his claim for a broad investigation. This is a case where Mr Golden has amply demonstrated a fixed determination to use the processes of this Court to seek a Royal Commission style investigation of CHAPS. That is not the Court’s role.
I have had regard to the principles of restraint emphasised by this Court in Proietti v Proietti. This is a case, however, where in the exercise of discretion an order of the kind made by the primary judge was amply justified. It cannot be clearer that in the absence of an order under s 8 of the Vexatious Proceedings Act Mr Golden intends to institute further vexatious proceedings concerning the same or similar subject matter as the eight earlier vexatious proceedings.
The order under s 8 of the Vexatious Proceedings Act made by the primary judge was necessary and appropriate.
No error has been shown in the order made by the primary judge under s 8 of the Vexatious Proceedings Act. No error of principle was established. There was no material supporting allegations of bias or judicial misconduct nor denial of procedural fairness in the hearing before the primary judge. It has not been shown that the primary judge failed properly to take into account Mr Golden’s claims. No coherent claim against any person or entity was identified by Mr Golden. The primary judge was correct to make the order he did under s 8 of the Vexatious Proceedings Act. Although it has been necessary to correct a superfluous order made by the primary judge and amend a consequential costs order, virtually all of the application for leave to appeal and the appeal addressed the order made by the primary judge under s 8 of the Vexatious Proceedings Act. In relation to that matter, Mr Golden has been unsuccessful. In those circumstances, Mr Golden should pay the respondents’ costs of the application for leave to appeal and the appeal.
For these reasons, I propose the following orders:
Leave to appeal granted.
Set aside order 1 made by Rothman J on 1 October 2024.
Amend order 3 made by Rothman J on 1 October 2024 to provide:
(3) that Mr Golden is to pay the costs of the respondents’ notice of motion filed on 24 April 2023 other than those that are the subject of order 1 made by Wright J on 6 December 2023.
Appeal otherwise dismissed.
Mr Golden pay the costs of the respondents of the application for leave to appeal and the appeal.
BALL JA: I agree with Payne JA.
**********
Golden
Howard [2025] NSWCA 117
(2016) 259 CLR 1
(2005) 223 CLR 1
(2000) 205 CLR 337
(1936) 55 CLR 499
(2006) 226 CLR 551
(2015) 89 NSWLR 284
(2002) 211 CLR 317
(2018) 265 CLR 77
(2021) 271 CLR 132
(1988) 165 CLR 543
Leave to appeal granted; order 1 set aside and order 3 amended as to costs; appeal otherwise dismissed, with Mr Golden to pay the respondents’ costs of the leave application and appeal.
“Wins & Placings” information about Cross Swords, a horse from New Zealand (said to be relevant to maladministration of another horse racing incentive scheme “BOBS”).
“Wins & Placings” information about Deny Knowledge, a horse from Ireland (said to be relevant to maladministration of another horse racing incentive scheme “BOBS”).
An email from Mr Golden to members of the New South Wales Legislative Council (namely Mr Latham, Ms Hurst and Mr Farlow) and the Rosehill Racecourse Select Committee, copying a number of journalists and news services, dated 17 March 2025.
An email from Mr Golden to members of the New South Wales Legislative Council (namely Mr Latham, Ms Hurst and Mr Farlow) and the Rosehill Racecourse Select Committee, copying a number of journalists and news services, dated 12 March 2025.
An email from Mr Golden to the Associate of Wright J seeking access to information and enquiring about his case, dated 25 November 2023; and email response from the Associate to Mr Golden dated 27 November 2023.
A summary prepared by Mr Golden dated 8 April 2025 of what he considered the relevant facts.
Information on the TRB Licensing Department website showing the number of NSW Licensed horse trainers in the years 2000-2001, 2023-2024, as well as a list of current and past members of the Board of Racing NSW.
At the outset of the hearing the presiding judge made clear that simply including material in the White Folders was not properly to tender that material as evidence in the appeal:
As to the third matter, for the reasons which are explained below, it was not an error of the primary judge to fail to take account of that proceeding in exercising his discretion. Although Mr Golden was successful in relation to one aspect of that proceeding, he was unsuccessful in claims that were repeated in subsequent proceedings. If anything, that lack of success reinforced the primary judge’s conclusions in relation to the proceedings he did find to be vexatious.
As to the fourth matter, I do not accept that the primary judge overlooked or misunderstood “evidence of fraud” on the part of Racing NSW and others associated with the horse racing industry. Simply put, for reasons I tried to explain to Mr Golden during the hearing, it was no part of the function of the primary judge to conduct an investigation into the veracity of alleged “evidence of fraud” on the part of Racing NSW and others associated with the horse racing industry unless it was somehow relevant to the task his Honour was undertaking in deciding whether to make an order under s 8 of the Vexatious Proceedings Act. The primary judge paid close attention to the evidence advanced by Mr Golden in numerous cases about alleged maladministration in CHAPS. As I will explain, numerous judges have concluded that Mr Golden is unable to identify an intelligible cause of action against any person or entity based on what Mr Golden asserts is “evidence of fraud” on the part of Racing NSW and others associated with the horse racing industry. Whether or not Mr Golden’s allegations warrant further investigation by some body having the power to do so is not a matter before this Court. There was no error by the primary judge in how his Honour dealt with Mr Golden’s allegations.
I turn now to address whether there was any error made by the primary judge in relation to any of the four steps of analysis necessary to determine whether to make an order against a person under s 8 of the Vexatious Proceedings Act*.*
While Mr Golden’s statement of claim contained other contentions, it did not appear to Wright J to provide a foundation for concluding that any other relevant tortious liability was, or could be, pleaded by Mr Golden.
Even allowing for the fact that Mr Golden was not a lawyer and had not, up to this point in the proceedings, been represented, Wright J could not discern from the material to which Mr Golden drew attention or from his submissions that there was likely to be any viable tortious claim which he had pleaded or could plead against either of the two defendants, if he were given the chance to replead, whether in deceit, negligence or any other tort. Wright J noted that this was not to say that there may not have been some fraudulent or otherwise tortious conduct by persons other than the defendants involved in the CHAPS during 2007 and 2008 or later. That was a matter about which Wright J could express no view, because Mr Golden had not named those other persons as defendants, they had not been given an opportunity to be heard on this or any other relevant application and some of the allegations made by Mr Golden against those other persons were very serious.
As to the question of whether the proceedings were vexatious, Wright J was satisfied that they were: