[1964] HCA 69
Golden v V'landys [2015] NSWSC 17
Potier v Attorney General in and for the State of NSW (2015) 89 NSWLR 284
[2015] NSWCA 129
Spencer v The Commonwealth (2010) 241 CLR 118
[2010] HCA 28
UBS AG v Tyne (2018) 265 CLR 77
Source
Original judgment source is linked above.
Catchwords
[1964] HCA 69
Golden v V'landys [2015] NSWSC 17
Potier v Attorney General in and for the State of NSW (2015) 89 NSWLR 284[2015] NSWCA 129
Spencer v The Commonwealth (2010) 241 CLR 118[2010] HCA 28
UBS AG v Tyne (2018) 265 CLR 77
Judgment (4 paragraphs)
[1]
JUDGMENT
HIS HONOUR: By motion on notice, the defendants seek orders dismissing the proceedings summarily or, alternatively, striking out the Statement of Claim and/or permanently staying the proceedings. Orders are also sought under the Vexatious Proceedings Act 2008 (NSW) in respect to the plaintiff.
It is necessary to describe the substantive proceedings in short form.
The plaintiff, Joseph Paul Golden, sues John Howard (a former Prime Minister) and Tony Burke (a current Minister of Government) for declaratory relief relating to a finding that a horse trainer added a horse of the plaintiff to a fraud claim; that the first defendant, John Howard, approved funding to a commercial horse assistance payment scheme; that Tony Burke, as Agriculture Minister, was negligent by accepting a $9 billion audit report; that CHAPS (Commercial Horse Assistance Payment Scheme) was approved; a declaration that Grafton Police failed to investigate training records; a declaration that Racing NSW consulted with the first defendant using out of date, obsolete, deceased, spelling or retired horses to deceive the Commonwealth; a declaration that the first defendant together with two other Ministers approved embezzlement and funding just prior to a Federal Election, which funding was referred to the then incoming Government; a declaration that the Minister approving the funding, referred to in the immediately preceding paragraph, then took a position with the funded body; a declaration that the Commonwealth and/or Racing NSW (neither of whom are defendants) bullied, abused and/or bankrupted the plaintiff; a declaration that the Commonwealth mismanaged, misappropriated and re‑directed CHAPS; a declaration that the first defendant personally negotiated an unprecedented funding package with "RN thief, thug, tyrant, bully" and then named the officer; a declaration that the foregoing allegations seriously harmed Queensland and Victorian thoroughbred breeding and racing; a declaration that CHAPS was available and there was looting; a declaration that a Judge or an unknown person rejected fraud demonstrations; a declaration that there were two minimum simple accountable transparent delivery options that were not overseen and resulted in a financial loss; a declaration that two malfeasance were involved in theft (neither of whom are defendants); and, in the only non‑declaratory relief, an order that deceit, negligence or other torts were committed by the defendants because they did not expose a particular trainer, and thereby facilitated fraud, embezzlement and misappropriation.
Golden v Howard & Anor [2024] NSWSC 1229 | Case summary | Zoe
The plaintiff claims damages of $10 million, including exemplary damages.
The foregoing recitation omits most pejorative terms and seeks to make sense of some otherwise abstruce provisions in the Statement of Claim.
The defendants rely on the Uniform Civil Procedure Rules (hereinafter "UCPR") r 13.4(1) and the affidavits of John Peter Pavlakis, affirmed 24 April 2023 and 20 June 2023.
The plaintiff relies upon his own affidavits sworn 2 May 2023 and 5 July 2023.
The factual background may be stated briefly. The plaintiff was involved in horse breeding and racing, and the issues raised in the Statement of Claim relate to a funding scheme generally referred to as the Commercial Horse Assistance Payment Scheme (hereinafter "CHAPS").
The CHAPS funding scheme was introduced by the Commonwealth Government as financial support for sections of the racing industry following an outbreak of Equine Influenza in 2007. It seems to have been introduced by the then Government prior to the election in 2007 and continued by the newly elected Government in 2007.
Essentially, the plaintiff claims that money was wrongly or inappropriately paid out to recipients and/or misappropriated. The plaintiff has no formal or financial interest in the fund and does not claim that any interest of the plaintiff has been misappropriated.
While Racing NSW, a corporate body established under the Thoroughbred Racing Act 1996 (NSW), which oversees horse racing in NSW, is at the centre of some of the allegations made by the plaintiff, it is not a defendant in the proceedings, and much of the allegations made by the plaintiff seem to be based on the proposition that Racing NSW had the function of overseeing the funding arrangements.
The Statement of Claim makes several pejorative comments about Racing NSW and its then Chief Executive Officer, who is named in the pleading. The Statement of Claim refers to the person as the "Chief Embezzlement Officer".
One of the declarations sought by the plaintiff is that this person is a "thief, thug, tyrant, [and] bully". There are allegations of contempt, and of the officers of Racing NSW (also referred to as "RN" in the pleading) suborning justice.
Following these "background facts", the plaintiff pleads that various State and Federal Members of Parliament have failed to investigate the plaintiff's complaints of the funding arrangements and that which the plaintiff referred to as fraud. There is no pleading which identifies a duty to investigate. Apart from the two named defendants, there are several other Members of Parliament, both NSW and Australian Parliament, about whom this allegation is imputed.
As earlier stated, the first defendant was a former Prime Minister of Australia and ceased to hold that office on 3 December 2007. The allegation, to the extent that it can be discerned, against the first defendant in the Statement of Claim appears to be that he approved funding of CHAPS.
The second defendant is a current Minister in the Australian Government and was, from 3 December 2007, a Minister for, amongst other things, Agriculture. The only allegation made against the second defendant is that he received a report concerning the funding of CHAPS. Apparently, on the material before the Court, the second defendant wrote to the plaintiff, setting out assurances he had received from Racing NSW in relation to the matters raised.
The plaintiff has previously brought several proceedings in the Court arising out of or connected to his grievances concerning CHAPS funding. The judgments in those matters are exhibited to the first affidavit of Mr Pavlakis.
[2]
Principles on Strike Out Motion
The provisions of UCPR, r 13.4 allow the Court to dismiss proceedings summarily, either in general or in respect to a particular claim, where it appears to the Court that the proceedings are frivolous or vexatious, there is no reasonable cause of action disclosed, or the proceedings are an abuse of process.
In exercising the jurisdiction and/or power conferred by the provisions of UCPR r 13.4, the Court is required to give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW), which is to facilitate the just, quick and cheap resolution of the real issues between the parties. Those real issues are defined by the pleadings.
A court will only strike out proceedings summarily in exceptional circumstances. Ordinarily, a party is entitled to have the opportunity to assert or defend its rights and, thereby, the party has her or his right to the party's day in court in relation to a claim sought to be agitated.
There are exceptions to allowing every party to have their day in court. Depending upon the grounds upon which proceedings are to be dismissed, ordinarily, the principles established by the High Court in General Steel [1] apply, and it is only in circumstances where the Court is satisfied that the claim is so obviously untenable or is manifestly groundless or manifestly faulty that the Court can be satisfied that the case sought to be taken cannot possibly succeed, and there is no possibility that a re-pleading will give rise to a good cause of action. In those circumstances, the plaintiff's case is taken at its highest.
However, it is unnecessary that the justiciable controversy sought to be agitated by the pleading is "hopeless". That which is required is that any reasonable prospects of success are "fanciful". [2]
Apart from the capacity of the Court to dismiss proceedings prior to a substantive hearing on the grounds that no reasonable cause of action is disclosed, the Court also has the capacity to dismiss proceedings summarily if the proceedings are an abuse of process. An abuse of process will occur when the proceedings are taken for an ulterior motive, involve an unjustifiable oppression to a party, or bring the administration of justice into disrepute. [3]
Otherwise, the Court may dismiss proceedings summarily if the proceedings are frivolous or vexatious.
In that latter regard, and including the abuse of process aspects, it is necessary to look at the history of the litigation relating to the underlying factual matrix to what is said to be the proceedings and the claim now before the Court.
Previously, the plaintiff commenced proceedings against Racing NSW and its CEO. Those proceedings involved judicial review of two decisions made by the CEO in June 2011, the first relating to the suspension of the plaintiff's trainer's licence for six months and the second decision, a decision in which the plaintiff was "warned off" racetracks controlled by Racing NSW indefinitely. The plaintiff attacked the decisions on the basis of actual or apprehended bias.
In the judgment at first instance, [4] the plaintiff in these proceedings (and in the proceedings in 2015) accused Racing NSW and Mr V'landys of corruption in the administration of CHAPS. The bias application arose out of the response by solicitors who threatened defamation proceedings, and the plaintiff submitted that such threat gave rise to actual or apprehended bias.
In the course of the judgment, Adamson J (as her Honour was then) was required to deal with the claim for misfeasance in public office and, in the course of her judgment, her Honour determined that there was no evidence of malice and the only element of the tort that had been established was that Mr V'landys exercised a public power.
The plaintiff appealed, and the Court of Appeal allowed the appeal on the basis that the second decision, being the decision to warn off the plaintiff from racetracks, was vitiated by apprehended bias, but the claim for misfeasance in public office still failed because of a failure to prove knowledge by Mr V'landys of the invalidity of that second decision or any reckless indifference towards its lawfulness.
Between 2018 and 2022, the plaintiff commenced seven proceedings against several defendants alleging that CHAPS had been mismanaged deliberately by Racing NSW and that fraud had been committed by officers of Racing NSW, by trainers, by stewards, by NSW Police officers and that the fraud had been "covered up".
Further, the plaintiff claimed that his reports of misconduct had not been investigated (or not been sufficiently investigated) by members of State and Federal Parliament, and also that solicitors on his behalf did not pursue the issues appropriately or reasonably. In each of those several applications, the plaintiff was unrepresented. Each was summarily dismissed by the Court.
It is fair to say that the underlying factual matrix for the claims now before the Court is the same factual matrix as underpinned the proceedings between 2018 and 2022. An detailed analysis of the proceedings is unnecessary, but the conclusion on any such analysis is irrefragable.
[3]
Consideration
As should be clear from the summary of the relief claimed that has been recited or summarised at the very outset of these reasons, most, if not all, of the relief, is the plaintiff seeking a declaration relating to factual issues, which, on a thorough reading of the Statement of Claim, is not identified as material to any liability of the current defendants. Most, if not all, of the claims are aimed at the conduct of Racing NSW and its Chief Executive Officer.
To the extent that the "declarations" are directed at conduct of either one of the defendants in these proceedings, it is a declaration that funding was approved or a declaration that the second defendant (Mr Burke) was negligent in accepting an audit report.
The basis of that negligence is wholly unclear and the basis upon which, assuming, without accepting that Mr Burke was negligent, such negligence would relate to conduct in which the said Mr Burke owed the plaintiff a duty of care, is, not unexpectedly, absent from the Statement of Claim. I say "not unexpectedly" because the plaintiff seems to have no interest in the funding scheme other than the interest of a member of the public.
In essence, the plaintiff is arguing that there were frauds and embezzlement, which were covered up by Government, resulting in funding being delivered to persons other than the plaintiff or funding being delivered in quantities that may have eliminated or reduced funding that might otherwise have gone to the plaintiff. The foregoing is a very generous reading of the Statement of Claim.
The only non-declaratory relief, other than the claim for damages generally, is an order that the defendants engaged in deceit, negligence or other torts that allowed the misappropriation of funds. At no stage is it said those funds were intended to be appropriated to the plaintiff, and at no stage is the public duty and/or private duty that is said to be owed to the plaintiff or any other member of the public identified.
The terms of the pleading are scandalous and pejorative, and the general assertions are wholly unparticularised. Overwhelmingly, as already stated, the assertions are against persons who are not parties to these proceedings, and have been parties to previous proceedings.
Within the principles already outlined above, a proper reading of the Statement of Claim shows that the proceedings against these defendants, commenced by the Statement of Claim, fails to disclose against these defendants a reasonable cause of action and the plaintiff's chance of success based upon the underlying factual matrix that is pleaded (assuming the pleading could be put in good order) is wholly fanciful and lacks a legitimate basis.
Further to the foregoing, the pleading is ambiguous and vague in the manner of its expression, and so general as to be meaningless and impossible to answer. Nevertheless, if the Court, as presently constituted, could define an underlying factual matrix that might show a claim that was other than fanciful, the Court would merely strike out the pleadings and grant leave to re-plead. The Court is unable to infer any such reasonable claim that could possibly arise.
Thirdly, the Court is satisfied that the plaintiff's true motives are to re-run those matters that have already been the subject of unsuccessful proceedings against Racing NSW and its CEO by the device of seeking to name some other defendant on whom, in the plaintiff's imagination, liability may be pinned. The Court will dismiss the proceedings summarily.
While not the subject of submissions and therefore not the basis for these orders, the Court is currently unable to discern an interest of the plaintiff that would permit proceedings to be commenced against the defendants.
The Court turns to the defendants' application for orders under the Vexatious Proceedings Act 2008 (NSW). Orders of the Court preventing proceedings being taken by a particular party do not prevent a party from seeking leave to commence proceedings that are properly framed and, on their face, disclose a reasonable cause of action.
Nothing in the current Statement of Claim gives rise to any indication of a liability on either of the defendants in these proceedings.
The defendants rely upon the terms of s 8 of the Vexatious Proceedings Act, which is in the following terms:
"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)."
The Supreme Court is an authorised court within the meaning of the foregoing section and application has been made, pursuant to the terms of s 8(4)(d) by a person against whom the plaintiff has instituted or conducted proceedings, which are alleged to be vexatious. As can be seen from the foregoing extract, the Court may make a relevant vexatious proceedings order against the plaintiff if the plaintiff has frequently instituted or conducted vexatious proceedings in Australia.
The Court has already outlined several proceedings taken by the plaintiff. On the pleadings that are before the Court and any "claim" that can be derived from the pleadings, the current proceedings are plainly vexatious.
As has been clarified by the Courts, particularly having regard to the alteration in language from its predecessor provision, the term "frequently instituted" is dependent upon the context and sets a relatively low threshold. [5]
Even though there has been a change in the defendants that have been named in proceedings, an examination of the vexatiousness of these proceedings, including the serious allegations of fraud that have been imputed without a basis, is extremely significant and, given the previous proceedings relating to the same substratum of facts, shows the plaintiff in substance attempting to re-agitate the same issue, and in the process making outlandish and unfounded allegations.
I bear in mind that the nature of an order under the Vexatious Proceedings Act is extreme and deprives, at least prima facie, a party of the capacity to litigate what may be to that party an important right. Nevertheless, this litigation shows the recusancy of the plaintiff and his unwillingness to accept the authority of decisions of the Court in relation to the facts upon which it is said he relies. An examination of the claims made in the eight proceedings commenced since 2018 shows the plaintiff's total inability to accept the authority of courts and his desire to re-agitate that which has been held to be without warrant, or without a basis.
Each of those proceedings was commenced without reasonable grounds and was an abuse of the process of the Court. Some of them were brought against politicians whose only connection to the alleged harm to the plaintiff is that they were managing the CHAPS funding. Some were against the CEO of Racing NSW. Others were appeal proceedings from such applications, including the filing of special leave application to the High Court.
The motion, notice of which was filed and with which the Court is now dealing, is confined to the subject matter of CHAPS and relates to the factual substratum sought to be raised in these proceedings and four others.
Notwithstanding that the Court is generally reluctant to issue orders the effect of which is to deny a person the capacity to litigate, either at all or on a particular subject matter or against certain persons, it seems to the Court on an analysis of the cases filed since 2018 and the claims sought to be agitated in these proceedings, that an order is warranted.
For the foregoing reasons, the Court makes the following orders:
1. The whole of proceedings in the matter of Joseph Golden and John Howard and Tony Burke, namely proceedings number 2023/76838, be dismissed, pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1).
2. 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.
3. The plaintiff shall pay the defendants' costs of the motion and of the proceedings.
4. Within seven days of the delivery of this Judgment, the defendants shall provide the Court with an estimate of the costs expended in and incidental to the proceedings for the purpose of the Court fixing a gross sum, including the amount claimed by way of gross sum.
5. Within a further seven days, the plaintiff shall respond, in a submission of not more than ten pages, to the aforesaid claim. The gross sum shall be determined on the papers.
[4]
Endnotes
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112; [1964] HCA 69.
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28.
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45.
Golden v V'landys [2015] NSWSC 17 (Adamson J, as her Honour then was).
Potier v Attorney General in and for the State of NSW (2015) 89 NSWLR 284; [2015] NSWCA 129 at [114] and [118].
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Decision last updated: 02 October 2024