Jabbar v Gade

Supreme Court of NSW|2022-08-04

Judgment

HER HONOUR: This matter involves a notice of motion seeking to strike out the proceedings and a declaration that the plaintiff is a vexatious litigant.
The plaintiff is referred to by the pseudonym Jabbar. The defendant, her former husband, is referred to by the pseudonym Gade. Without meaning any disrespect and for convenience I shall refer to the plaintiff as Jabbar and the defendant as Gade in this Judgment. At the hearing, Jabbar was self-represented. Gade was represented by Mr Weightman of Counsel. The defendant relied on a Court Book (Ex 1) and affidavits of Gade dated 17 May 2022, Ayden Shepherd 27 July 2022, Niesha Shepherd 28 July 2022, Jessica Fordham 27 July 2022 Suzanne Siderovki 27 July 2022. The last 4 affidavits concern the issue of service. The plaintiff relied on 5 volumes of Court Books (Ex 1, 2, 3, 4, 5), an additional bundle of documents (Ex B) and a court order notice dated 16 April 2016 (Ex C).

The current proceedings before this court

By way of summons filed on 11 April 2022, Jabbar relevantly seeks the following orders: 1. To give permission per s 338(1) and 338(2) [of the Crimes Act 1900 (NSW)] to file an application to examine the records (Under s 49 of Criminal Procedure Act 1986 (NSW) which "may" lead to "perjury", "pervert the natural course of justice", "obstruction to justice", "tampering with evidence", "[breach] of good behaviour bond", "[breach] of AVDO", and "contempt of court" by [Gade] (permission to examine records). 2. Plaintiff is not a vexatious litigant (not vexatious litigant). 3. Allegations and evidence of text messages dated 25 July 2015 and video dated 9 March 2013 are not true (untrue text messages and video). 4. Orders for Federal Police to recover children and hand over them to their mother (plaintiff in this case) (Federal Police recover children).

Summary judgment

The defendant relies on Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") 13.4. It reads: "13.4 Frivolous and vexatious proceedings "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - a) the proceedings are frivolous or vexatious, or b) no reasonable cause of action is disclosed, or c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)"
In Colombini v De Berigny [2021] NSWSC 374, Ward CJ in Eq at [44] stated: "[44] The principles on a summary dismissal application are well known. There is a high threshold to be satisfied. The test generally applied on applications for summary disposal of part or all of proceedings is that set out in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 at 128-9 (General Steel). It is necessary for there be a very clear case before proceedings will be summarily dismissed (General Steel at 129; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1 (Dey) at 91). As Dixon J (as his Honour then was) noted in Dey at 91, "once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."
In Jabbar's written submissions, while being somewhat difficult to follow, are as follows: "that Applicant's main and only argument is: plaintiff/respondent's application be dismissed on the basis of Federal Circuit Court orders dated 16 August 2019. While I am contesting the same orders in my Summons and "Court Attendance Notice (CAN)" filed in this court on 11 April 2022, applicant is completely silent for the events of before 16 August 2019. My submission is that applicant managed these orders (Federal Circuit Court orders dated 16 August 2019) by fraud, by: (1) Kidnapping my children. (2) Misleading court (several counts). (3) Producing fake evidence in Federal Circuit Court (Several Counts). (4) Manipulating law (several counts). (5) Making a fake complaint to NSW Police. (6) Filing false affidavit (several counts). (7) Breaching "Apprehended Violence Order". (8) Breaching "Good Behavior Bond". (9) Refusing to give his original mobile phone (associated with his allegations) for forensic analysis. (10) Obstructing the natural path of justice. (11) Contempt of court (several counts). (12) Abusing system (several counts)."
As she outlined these details in her Summons, "Court Attendance Notice (CAN)" (filed in this court on 11 April 2022 and applicant has a copy of that) and in her affidavit dated 6 June 2022. If Gade wants this court to use Federal Circuit Court orders dated 16 August 2019 to dismiss Jabbar's application, in this matter, (Gade is the applicant and all evidence have been in his possession only, all the time), he should provide evidence to this court for (not limited to): 1. On 19 August 2015, the Gade did not decide to end his relationship with Jabbar. 2. On 19 August 2015, Gade did not take my children from their schools. 3. In August 2015, Gade did not start parenting proceeding in Federal Circuit Court, Newcastle. 4. Between 19-22 August 2015, Gade informed Jabbar about her children and allowed her to see/talk to my children. 5. On 31 August 2015, Gade did not produce fake evidence against me in Federal Circuit Court, Newcastle to get children's custody. 6. After 31 August 2015, Gade did not refuse to allow me to see my children in a supervised manner by my friends. 7. In November 2015, Gade did not start property proceeding in Federal Circuit Court, Newcastle. 8. In February 2016, Gade did not produce another fake evidence against me in Federal Circuit Court, Newcastle. 9. In February 2016, Gade did not provide false information in his affidavit in Federal Circuit Court, Newcastle. 10. In February 2016, Gade did not make a fake complaint against me to NSW Police. 11. In September 2016, Gade's mother did not make a fake complaint against Jabbar to NSW Police to trap me in breach of AVDO. 12. In February 2017, Gade did not provide wrong information to District Court, Newcastle. 13. In February 2017, Gade did not provide false information in his affidavit in Federal Circuit Court, Newcastle, even after court orders. 14. In March 2017, the family report writer did not write a report against me on the basis of Gade's fake evidence of text messages dated 25 July 2015 and video dated 9 March 2013. 15. In July 2017, Gade did not refuse to provide Jabbar his mobile phone for forensic analysis to prove her innocence in Federal Circuit Court, Newcastle. 16. In August 2017, Gade did not provide wrong information in his affidavit in Federal Circuit Court, Newcastle. 17. In August 2017, Gade did not accept that there were no text messaged dated 25 July 2015 and video dated 9 march 2013, in his affidavit in Federal Circuit Court, Newcastle. 18. In August 2017, Gade's mother did not give false evidence in Federal Circuit Court, Newcastle. 19. In October 2017, Gade did not refuse to provide Jabbar his mobile phone for forensic analysis to prove her innocence in Federal Circuit Court, Newcastle. 20. In May 2018, the Federal Circuit Court did not make parenting orders on the basis of Gade's fake evidence text messages dated 25 July 2015 and video dated 9 March 2013. 21. In February 2019, the Full court did not accept Gade's fake evidence of Text messages dated 25 July 2015 and video dated 9 March 2013 on the "balance of probability". 22. In June 2019, Gade did not use the fake evidence again in Federal Circuit Court, Newcastle and did not ask court to dismiss my application on the basis of same fake evidence and declare me vexatious litigant. 23. Between August 2015-April 2019, Gade did not file several applications in Federal Circuit Court, Newcastle to get the sole possession of the property in Adamstown (Adamstown, NSW) ("the Adamstown property") 24. In April 2019, Gade's application to get the sole possession of the Adamstown property was not dismissed by Federal Circuit Court, Newcastle. 25. In November 2019, in Jabbar's absence, Gade did not brake locks of the Adamstown property and did not take the possession of the Adamstown property without any court/legal document/orders.
There are four issues that need to be addressed. First is permission to examine records, second is that the text and video messages are not true. Then I will address ground 4 in the plaintiff's (Jabbar's) summons, namely recovery of children and whether the plaintiff should or should not be described as a vexatious litigant.
That relates to both the defendant's (Gade's) applications for summary Judgment and the other that the plaintiff be declared vexatious. It also relates to the plaintiff's application to be declared not vexatious.
The issues of the video recordings, the text messages and the Federal orders to recover her children appear to have been dealt with before in the proceedings in Gade v Jabbar (No 11) [2018] FCCA 1056, where the full Federal Court addressed the issues as to where the mothers fixated on whether two video recordings which depict her threatening the father and children and assaulting one of the children and two text messages in which she threatened to harm the children and herself and destroy property should be admitted into evidence.The full Federal Court considered these issues in detail. The extract is long but I think it needs to be reproduced in full as it demonstrates these issues were closely examined. At [144]-[223] the full Federal Court stated: "The father's allegations [144] The father alleged that throughout the marriage the mother behaved in an abusive way to him and the children which included screaming, hitting, kicking and pulling and pushing the children and himself. He said that the mother would snap and lash out at him and the children. He said that he would ask the mother to stop screaming and hitting us and would also agree with the mother just to get her to stop screaming and hitting. [145] The father said that in the early part of 2013, the mother was verbally abusing him on a daily basis and was also abusing the children by calling them names, slapping them and hitting them with sticks. He said that if [Y] wouldn't eat the mother would hit him with a stick and he would intervene. [146] The father said that he began going to work late and returning early so that he could be with the children. [147] He said that it was common for the mother to send him up to 20 to 30 text messages a day which included abusive, derogatory and threatening comments. [148] This culminated in the incident which the father videoed on 9 March 2013. [149] 9 March 2013 was a Saturday and the father said that after he woke up he helped the children get ready. He said that when he came downstairs with the children the mother appeared agitated and was talking to herself. [150] He said that at about 9.00am he and the mother had an argument about the flats in India. He said that the mother asked when he was going to transfer his rights in the properties to her and when he asked why she wanted him to do that, she said that he would involve his parents in the properties. [151] The father said that at about 10.30am or 10.35am the mother began verbally and physically abusing [X]. He said he did not know what to do and began video recording the mother on his phone. The father said that he: …felt overpowered by Ms Jabbar. I was completely overwhelmed and felt unable to cope and defend myself and the children against her. [152] The father produced at trial two videos on a USB stick, IMG_0633 and IMG_0635. [153] IMG_0633 lasts for 3.50 minutes. It shows an adult female and the two children, one a female child and the other a young baby, who the father said were the mother, [X] and [Y]. It is necessary to view the video to get the full flavour of what occurred but the adult female is extremely agitated and is screaming in Hindi at a person who is not depicted and the person off-camera makes some responses. [154] Ms M who was asked to translate the speech and subtitle the videos, found some of the words the adult female said incomprehensible but some of the things which she said were translated as follows: Female: …you should die.. your whole family should rot. You should get infested by worms.. you should die being infested by worms.. you want both of my flats… Female to girl child: Are you going to eat the food or (incomprehensible one word) from here to you..well.. today you all three get out from the house.. look, after killing you all three at that place, after chopping you.. shall throw there somewhere in this bushland. Female: Bloody dog wants two flats… I will give flats… Female: Bloody dog... I'm being punished for that... That's why I'm getting distressed, that's why you are laughing sitting down… because today, I have nothing in my hand... bloody you (Incomprehensible several words) I have worked for four years … and all my previous savings … all are being stuck because of you. I cannot do anything about them. Female to girl child: Slam him down.. slam down.. slam him down.. slam down.. otherwise (I) will kill him. Have you understood? [155] IMG_0635 lasts for 2.37 minutes and is very disturbing to watch. The adult female can be seen wandering around the room screaming for several minutes while a baby crawls on the floor and on a couple of occasions tries to pull himself up on her leg. The female child tries to get the baby. On several occasions adult female grabs hold of the female child and whacks her repeatedly on the upper and lower back before letting her go. The father's counsel submitted that on one occasion he counted 13 blows and I have no reason to doubt that although viewing the video would confirm it or otherwise. [156] Some of the things said during this video were as follows: Female to girl child: I can't do anything to this dog; I can beat you… Female to girl child: Come..come..you..come here….you come…You come here…. Female: I can do no harm to this dog nah….this dog my………(Some incomprehensible words) Female: even after that… even after that.. bloody dog can't get the registry done so that I can get rid of … Girl child: (Crying and screaming) Female to girl child: I will not leave you alive, will not leave you alive… I to you Girl child: Crying, said few incomprehensible words Female to girl child: I will hit, I will hit only you, I can hit only you Girl child: No..no (crying and saying) no…no… Female to girl child: You will get hit four time, you will get four because I can't hit this dog…. Female: (Some incomprehensible words) …Look, I will not leave this girl alive, will not leave her alive Female: you take.. you take two-two flats, either get it registered in your name immediately after getting (omitted) done, and if (you) will not get it done then see, even if you get the registry done, you see, I am cursing you and your whole family so much so.. that whoever will step in into this home as an owner…that bloody dog will die being infested by worms…. Female: on the day when I will wish..(incomprehensible words) ….you are showing your worth.. you show your worth… bloody dog… (you) will die… Female to girl child: Him… (incomprehensible words) put him down… you still have to get four more… put him down… leave him… [157] The father said that after he stopped filming he took [X] and [Y] into the next room and tried to comfort them. He said that the mother ordered [X] into the kitchen and took [Y] from his lap. [158] The father said that he left the house because he was upset and went to his office and at about 11.00am he transferred the video files to his computer so that he could erase them from his phone. He said that [X] played with his phone and he didn't want her finding the videos. He said that after he transferred the files he tried to make a smaller version so that he could send it to the mother's father in India but in the end he decided not to do this as he felt it would have made the situation worse. [159] Independent evidence referred to in Dr K's report suggests that after this incident, the father sought assistance through the Employee Assistance Program and was referred to a psychologist. He discussed with the psychologist what was happening in the family and told him about the videos. On 21 March 2013 two separate reports were made to the Department of Family and Community Services (DOCS), one apparently by the therapist and one apparently by the father. DOCS did not take any action as a result of the notifications. [160] The therapist saw the parties for one couple session in May 2013. [161] The issue with the flats was subsequently resolved; the father agreed to the contracts being amended so that the flats were purchased in the mother's sole name. [162] In his report, Dr K referred to another specific incident described by the father which he said that [X] without prompting also referred to although no time frame is given for it. [163] The father told Dr K that the mother had "totally lost it" and had become "extremely violent…hitting the children." Dr K went on to say as follows: …The father said to me, "she made a video of me begging her… in front of the children… I was touching her feet… she was being triumphant… she was saying 'you will do anything to save the marriage', and 'you will have no link with your parents', and 'you will protect [our nuclear family]". The mother was demanding that the father give his word on these things. The father recalled that "[X] was saying, 'Papa, do it… everything will be fine after that'". I did not ask [X] about this incident. But, she raised it, in response to a question that I asked her about parental conflict. [X] had been explaining to me that the mother had hit her and threatened her only for the purpose of "get[ting] back at dad", or "getting dad to stop" doing certain things. I asked [X] whether she had ever thought that dad should just stop doing those things, and stop annoying mum, and whether she had ever been angry with dad for making mum angry. [X] said, "dad did say sorry… mum was videotaping it… he tried… he was really saying sorry… she was going to send it [she did not elaborate to whom]". At the time, [X] had been hoping that dad saying sorry might stop the fighting. But, it had not done so. I asked the mother about this incident of her video recording a paternal apology or undertakings. The mother spoke with dismissing and mocking facial expression and tone. The mother said, "yes… he did that drama… he said, 'if you want, you can make that video'… me, I videoed for three seconds, then I stopped. [164] Dr K also referred to another specific incident not mentioned in the father's affidavit which was mentioned by [X] when talking to him about the fights between the parents and about what she and [Y] did when there was fighting and yelling. He said as follows: Later in her narrative, when [X] was speaking of maternal threatening aggression, [X] described an occasion when, "my mum accidentally broke the bucket… she threw it on the floor, and it broke… she got so much anger, that she broke the bucket". [16] [165] The father's evidence about the text messages was as follows. [166] The father said that on the morning of 25 July 2015, he was upstairs in the bedroom and the children were downstairs with the mother. He said that the mother sent him a number of text messages including the two referred to earlier. He said that the messages came up under the name "Ms Jabbar" on his phone and were sent from phone number (omitted). He said that this number was registered in his name but the mother had exclusive use of this phone from April 2012. [167] The father said that upon receipt of the message he raced downstairs and saw the mother pulling both children towards the stove screaming: I'll pour boiling oil on you. [168] The father said that the children were shaking, crying and trying to escape. He said that he begged the mother to stop but she didn't and he stepped between the children and the mother. [169] The father alleged that [X] said: Stop it Mummy. You are hurting me. [170] The father said that he was worried and didn't know what to do and that is congruent with the evidence that he rang the Department of Family & Community Services seeking advice. The mother's response to the father's allegations [171] The mother denied committing any acts of family violence. She admitted hitting [X] in March 2013 but did not concede at trial that it was the hitting depicted in the video. She did not concede that she had done anything wrong during the incident where the father begged her (which she admitted occurred) and while she eventually put it down to misinterpretation by the court and others of a reference to oil which would not have been seen as threatening by an Indian person and she denied all the other allegations of family violence made by the father. It does not appear that Dr K asked her specifically about the bucket incident raised by [X]. [172] It was the mother's case that the father well knew that she would never harm her children. She referred to the fact that after the text messages were sent the father did not immediately separate from the mother or attempt to remove the children from her. He continued to go to work and went away for a few days to a conference in (omitted) leaving the children with the mother. If he took the mother's threats to harm the children seriously, why would he do that? Findings about the father's allegations [173] The videos and the text messages if they are as the father maintained, not only discredit the mother's denial of having perpetrated family violence on those and on other occasions, they are very damaging to her case as regards parenting orders and the mother devoted a tremendous amount of time and energy throughout these proceedings to impugning their validity. [174] The mother passionately argued that this court should reject these pieces of evidence, firstly because the District Court overturned her convictions for assault and stalk/intimidate which were based on this evidence and secondly, because the father had failed to produce for forensic examination the mobile phone which he had used to record the video and on which he had received the text messages. [175] The mother's argument that the fact that the District Court overturned her convictions means that this court should have no regard to the videos and text messages is not a sustainable argument and the starting point is to consider the reasons given by Judge Bright for overturning the convictions. [176] The mother argued before Judge Bright that the Local Court Magistrate should not have received the evidence about the text messages and the video because the father had failed to produce the phone on which the messages were received and the videos were taken. Judge Bright did not accept this. She held that the Crown was entitled to rely on a copy of the video pursuant to s. 48(1) (b) of the NSW Evidence Act and that a photograph of the text messages taken from the father's phone was also admissible. [177] The Commonwealth Evidence Act applies before me and it contains the same provision namely: Proof of contents of documents (1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods: (b) tendering a document that: (i) is or purports to be a copy of the document in question; and (ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents; [178] However, although Judge Bright ruled that the evidence was admissible, she overturned the mother's convictions and the reasoning behind this decision insofar as the text messages was concerned was as follows: There was sufficient evidence that a text message was received by the father on the date alleged and the real issue in the appeal was whether the prosecution had established beyond a reasonable doubt that it was the mother that sent the text message. The mother denied sending the text message and told the Local Court that she did not even have a phone. The father's evidence was that the mother sent the message and there was some reason to doubt the mother's claim that she did not have a phone but having regard to the acrimony that existed between the parties the Court would require independent evidence or a reliable admission in order to be satisfied beyond reasonable doubt that the mother did send the SMS message. The Crown could not rely on the admission the mother made about this to Dr T at the s.11F conference as she was not called as a witness and what the mother said to a police officer about it was equivocal. That left only the father's evidence and Judge Bright found that she could not be satisfied beyond a reasonable doubt that it was the mother who sent the text message and overturned the conviction. [179] None of this means that I cannot separately consider in the context of the family law proceedings, whether I am satisfied that the mother sent the messages and if so what the content of the messages was. [180] There is absolutely no doubt on the evidence before me that on 25 July 2015, the mother had a phone which she habitually used and that the phone number was (omitted). On a telegraphic transfer request the mother made on 28 August 2015, she gave this as her phone number[19] and on 24 September 2015 she informed the father that her previous phone number (omitted) was no longer working. [181] It is a credit issue if the mother conveyed to the Local Court that she did not have access to a phone on 25 July 2015. However at trial before me, she did not maintain that she did not have a phone and she also admitted that she had sent the father some text messages that morning and that they contained a reference to hot oil or burning oil. It was her case, however that the messages she sent were not those the father claimed to have received. [182] For the following reasons I am, however, satisfied on the balance of probabilities and indeed would be satisfied beyond reasonable doubt if necessary that the father received from the mother the messages he said he received. [183] The father's evidence about the receipt of the text messages was cogent and coherent and he gave evidence about the mother's actions at the time and about additional conversations at the time the messages were sent which make credible his assertion that the mother sent the messages. [184] Unlike the District Court, however I have much more than the father's bare assertions that the messages he received were sent by the mother. [185] The father attached copies of the messages to the affidavit he filed on 21 August 2015 and in the early stages of these proceedings, the mother admitted sending the messages and sought to explain away their significance. [186] Dr T said as follows in the s 11F Child Inclusive Child Dispute Conference memorandum dated 31 August 2015: Mother admitted that she threatened to pour boiling oil over children in a text to the father but denies any risk of this actually occurring. She stated in interview that this was to get the father's attention and denied that she has ever physically hurt the children. The mother appeared to have little insight into the seriousness of this incident. Both parents report a similar story. The father was upstairs with the children and mother was downstairs in kitchen. Mother texted father and became angry when he did not text back immediately. Mother continued to send texts and then escalated to threatening to pour burning oil over herself or the children. The parties differ from this point on. The father asserts that mother dragging children down to the kitchen. The mother denies this and says that she was halfway upstairs. The mother asserts that the father told the children of her threat. [187] Dr T was cross-examined at the hearing before me and I accept her evidence about what the mother said to her on 31 August 2015. [188] Soon after separation the mother went to see Dr H, a psychiatrist, and on several occasions in September and October 2015 she made admissions to him about sending the messages. [189] Dr H said as follows in his letter to the mother's GP dated 30 September 2015: …It appears that the husband gaining custody occurred largely on the back of threats that Ms Jabbar had voiced to him that she would possibly harm the children and herself by pouring hot oil on them. Ms Jabbar explained to me that this was a threat which she did not intend to carry out but which was meant as an ultimatum. Evidently, her husband has a life insurance policy and his mother is the stated beneficiary. Ms Jabbar wanted this changed so that she was the beneficiary so that her and her children would be looked after in the event of her husband's death. Evidently, he had stated on making the changes and she gave him the ultimatum as previously mentioned. Ms Jabbar was adamant that she would never have carried out the threat and said that threats are often used as an ultimatum within Indian culture. [190] Dr H said as follows in his letter to the mother's GP dated 6 October 2015: I spoke with Ms Jabbar about why she threatened to pour boiling oil over her children and herself. She corrected me when I suggested it was due to her husband having not made changes to a life insurance policy. She said that in fact it was due to her husband having made payments to his uncle, evidently to pay for his uncle's son's (omitted) studies, and him not making Ms Jabbar aware that this was happening. Again she reiterated that she would never harm her children. [191] The mother was asked about the content of Dr H's notes during cross-examination and responded: I informed him I sent some silly text messages but not that one. [192] Dr H was not made available for cross-examination but in the light of the evidence generally, and the mother's response above, I am satisfied that his records are accurate. [193] Dr K said as follows in his report about his interview with the mother on 10 October 2016: At interview with myself, the mother told me that she had made a threat to pour boiling oil on the children and father, and that this was a figurative way of saying that she would be extremely angry, if the father did not comply with her request. She made reference to Indian culture, and to a line in an Indian movie, where this phrase of "pour[ing] boiling oil" was used in such a way. [194] The mother took a similar line at trial. In her 4 August 2017 affidavit she said as follows: In July 2015, I gave offers for few properties in (omitted). I was aware of this fact that Mr Gade was financing one of his relative's higher education in India. I was in need to know my family's exact financial situation. From mid-June, 2015 to 25th July, 2015, I asked Mr Gade several times, Mr Gade did not give me any response. On 25th July I used one phrase of my native language with words "hot oil". [195] The mother put to the father in cross-examination that there was argument between them about payment of his cousin's fees and that she sent text messages because she needed to know if he had paid the fees. She put to the father however that she had not made a threat. She said: I was working in the kitchen everyone was upstairs it was Saturday morning. I was in need of the information so I sent him a text message that's all. [196] The mother asked the father questions which suggested that she had said something about "hot oil" or "boiling oil" in those messages. She asked him if he had heard of an Indian comedy group called the (omitted) (the father obviously had as he smiled) and asked him to concede that they used a threat to pour hot oil on someone as a part of a comedy sketch. [197] The father's counsel pressed the mother during cross-examination to be more specific about what she said but she declined to be more specific. [198] During her own cross-examination by the father's counsel, the mother admitted that in her affidavit filed on 17 February 2016 she said as follows: I understand my mistake that I should not have sent that text message. I got enough punishment for that mistake by separating [X] and [Y] from me for such a long time. [199] The mother also admitted that during cross-examination by the father's counsel, that in the Case Outline document she prepared for the interim hearing in June 2016 she said as follows: The Mother admits sending an inappropriate text message on 25 July 2015 and states that this was the only time she sent an inappropriate text message to the Father and apologises for this irrational behaviour. [200] During final submissions the mother said as follows: In July 2015 I used one inappropriate word from point of view of Australian culture but nothing inappropriate to Mr Gade. [201] There are clear admissions by the mother to sending text messages and using the phrase hot oil or boiling oil. Otherwise her evidence about the content of the messages at trial was avoidant. She failed to be specific about what was in the messages she sent if they were not the messages the father said he received. I accept the father's evidence that the mother sent the text message he claimed to have received. [202] The reasoning of Judge Bright leading to the mother's conviction for common assault, which turned on video XXX, being overturned, was as follows: Because of the acrimony between the parties it would be difficult for the court to accept the evidence of the father unless it was corroborated. There was a significant factual issue about whether the video had been edited, and the original device was not available for forensic examination. The admission the mother had allegedly made to a police officer about the authenticity of the video was equivocal. The mother alleged that she had an alibi in that her daughter was at (omitted) at the relevant time on 9 March 2013 and therefore the alleged assault could not have happened on that day. The mother conceded that her daughter's name was not on the (omitted) attendance sheets for that day but said that it could have been due to human error or that they were running late. There was no translation available of the sound on the video and the only evidence in English of what was said was the father's evidence. While the video did depict what appeared to be an assault upon the child, there was no evidence other than that from the father about what was occurring at that time and in all the circumstances Judge Bright was not prepared to rely on the father's evidence about what is depicted in the video. Judge Bright held that the Court could not be satisfied beyond reasonable doubt of the reliability of the video could not be satisfied that the Crown has established its case that the mother had assaulted [X]. [203] This court has evidence about the videos unavailable to the Local Court Magistrate and the District Court in that prior to the trial the Independent Children's Lawyer arranged for Ms M of (omitted), a NAATI accredited translator from the Hindi Language into the English Language, to translate the sound on the videos and also sub-title the videos. [204] The father and mother both speak Hindi and neither took issue at trial with the validity of the translation. [205] In answer to questions by father's counsel about what the video depicted the mother was evasive saying "I know my house but not this video house" and then saying "maybe" it was her house. She was asked if the people in the video were [X] (I'm not sure) [Y] (I'm not sure) and her (No its not me). [206] When questioned by Counsel for the Independent Children's Lawyer the mother said: Those two looking like my children and look like me but my point is I never did it. [207] In answer to another question from Counsel for the Independent Children's Lawyer the mother said: That woman in the video is looking like me and the children look like my children --- that is showing my house and those two children and me. Everything is perfect. [208] The mother went on to deny however that she had ever assaulted her daughter. [209] I have absolutely no doubt that the people depicted in the videos are the mother and the children. Not only is that apparent from seeing the mother and seeing photographs of the children, the mother made partial admissions about it during cross-examination by both the father's counsel and Counsel for the Independent Children's Lawyer. [210] The mother has also made admissions on various occasions about hitting [X]. Dr K set out in detail in his report information given by the mother on various occasions about striking [X] in March 2013. There is also reference in Mr J's notes to [X] stating that the mother had hit her on the back to get back at the father. [211] Interestingly, the following appears in Dr H's notes of a consultation with the mother on 6 October 2015: …she told me that in March 2013 she hit her daughter across the back and buttocks when she felt her daughter was not listening to her. Evidently the husband filmed this and made a complaint to DOCS and the police which Ms Jabbar only found out about at her recent interview with the family consultant. She denied ever hitting her son and now realised this was not the right thing to do. Cultural differences re physical discipline. [212] At trial the mother agreed that she had admitted to others including Dr H and Dr K that she hit [X] in March 2013 but continued to deny that the hitting which occurred was the hitting depicted in the video. [213] At times during the course of the proceedings the mother raised from the bar table the issue of the father producing the mobile device (the phone) used to record the videos and on which the text messages were received for examination but she never made a formal application for this to occur. [214] In his trial affidavit, the father said that in December 2015 he gave the phone he had been using to his mother and prior to doing so he wiped the phone of all data. He said that his mother gave the phone to his father as she didn't feel comfortable using it and his father took the phone to India. He said that in February 2017 his father brought the phone back to Australia and that he could provide it to the court. [215] On 18 October 2017, after the evidence was closed the mother applied to the court for access to the phone. In her affidavit filed on 12 October 2017 the mother said as follows: On 08 September 2016 I clearly informed to the honourable court that evidences provided by Mr Gade regarding text messages dated 25 July 2015 and video dated 09-03-2013 are not true. In the light of District court orders dated 14-02-2017, it is clear that evidence provided by Mr Gade regarding text messages dated 25-07-2015 and video dated 09-03-2013 are not true. At that time, Mr Gade did not provide his mobile device as well as any forensic analysis report of his mobile device ((omitted)) associated with text message dated 25-07-2015 and video dated 09-03-2013. [216] The mother went on to assert that the father's excuses for why he had not produced the original device should be rejected because there was evidence that he was still using the device with a new service number. She submitted that the court should find that the father had produced false evidence in his affidavits filed on 31 August 2015 and 8 February 2016. [217] I do not accept that because the phone has never been produced for examination that the videos should be rejected. They are admissible pursuant to s.48 of the Commonwealth Evidence Act. The only thing which might have been gained from examining the phone was if it showed that there was more extensive footage which cast what was depicted in the videos in a different light. The mother made no such suggestion to the father. Her case was that the entire videos were a fabrication. [218] The time of the filming had some relevance because the mother claimed that [X] was variously at either a (hobbies omitted) when the filming allegedly occurred and the Independent Children's Lawyer arranged for the copies of the videos to be examined by Dr B of Schatz Forensic in Brisbane. Dr B has a Doctorate in Digital Forensics and a Bachelors in Computer Science. The Independent Children's Lawyer requested that Dr B conduct a forensic analysis of the videos. [219] Dr B said that through analysis of the metadata attached to and embedded in the video files, it was his opinion that the time of filming of IMG_0633.MOV was likely to be on or about 10.34 on 9 March 2013 and IMG_0635 was likely to be on or about 10.39 9 March 2013. He annexed a detail report supporting this opinion to his affidavit filed on 2 August 2017. [220] This does not assist the mother and in any event there is no independent evidence which raises a doubt that the child in the video is [X] and the mother had no proof that [X] went to either (hobbies omitted) that morning. [221] I have absolutely no reason to believe on the totality of the evidence before me that the father fabricated or doctored the videos so that parts which might depict poor behaviour by him or provocation by him or any other actions or words by him have been omitted from the videos. [222] I am satisfied on the balance of probabilities and would be satisfied beyond reasonable doubt if necessary that the events depicted in the video occurred. [223] Not only do I accept the validity of the text messages and videos which both clearly demonstrate the mother committing acts of family violence, I accept the father's evidence about what he experienced during the marriage and the issue then is what the implications are of those findings. 25 In Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660, in this Court, before Walton J (the trial judge), Jabbar alleged that Gade assaulted her on five occasions. His Honour held that the plaintiff had established liability for the third assault that occurred on 2 March 2013 and assessed damages in the sum of $7,000.00. The first, second, fourth and fifth claims of assault brought by the plaintiff were rejected at [126]-[127]. In these proceedings, Walton J referred to the credit of Jabbar. At [35]-[45] he stated: "CREDIT OF THE PLAINTIFF AND DEFENDANT [35] The plaintiff complained about the lack of availability of the mobile telephone used by the defendant when receiving a text message concerning a threat to pour hot oil over the children, and record the plaintiff assaulting the parties' daughter X. [36] The plaintiff contended that the mobile phone had not been available to her to undertake a forensic analysis. [37] However, that contention may not be accepted. The issue was the subject of complaint by the plaintiff to the Full Court of the Family Court of Australia, the appropriate forum, where that Court considered the issue and determined the complaint to be unfounded. [38] The contention repeatedly made by the plaintiff in evidence and in submissions was that the recording on the mobile phone was a "fake"; no doubt, as part of a denial that she had assaulted her oldest child. [39] The plaintiff asserted in her cross-examination in the Federal Circuit Court trial she did not even know if they were her children in the recording. [40] The plaintiff conceded during cross-examination in the Federal Circuit Court trial that she was the person in the video, but then denied that she had assaulted her daughter. [41] In these proceedings, when under cross-examination, and after the playing of the recordings, the plaintiff made a complaint about a person sitting in the back of the courtroom. She stated "they are my children, if anybody should be upset it is me". [42] When questioned about the concession, and becoming aware of her mistake, the plaintiff then proceeded to dispute she had actually said they were her children only moments earlier, and maintained the position that it was not her children depicted in the recording, in the face of images clearly depicting her. [43] I note that the plaintiff relied upon a report by Dr Hinton, Psychiatrist, of 6 October 2015, which indicates the plaintiff had disclosed to him that that the plaintiff admitted striking the parties' daughter and the defendant had recorded this. [44] The plaintiff contended that the "text" message and recording had hampered her attempts in securing employment, in that she has been unable to obtain a Working with Children Check. However, as the plaintiff conceded in cross-examination, the Office of the Children's Guardian has actually not refused a Working with Children Check. Rather, the plaintiff has not answered queries of her by the Office of 19 December 2017 and 11 March 2019. [45] My overall impression of the plaintiff as a witness was that she was an unsatisfactory one. [46] The plaintiff is plainly an intelligent woman. She was self represented. I accept that she had felt strongly and passionately about her divorce and custody battle. [47] However, I agree with the defendant that the plaintiff gave the very strong impression of a person consumed by her sense of injustice that drove her to variously adjust her evidence to say that which she considered necessary to assist her at any point in time. She was argumentative and to some extent evasive. [48] I do not consider her to be "cunning and devious" as submitted by the defendant but her evidence was undermined by her emotional responses fed by her sense of injustice. Her reliability as a witness suffered considerably. [49] Ultimately, after close examination of the plaintiff in the giving of her evidence, and making due allowance for her self represented status and stress she was under, I have come to the view that her evidence should not be accepted unless corroborated by independent evidence or by the defendant whom I considered to be a thoughtful, considered and careful witness." 26 It is my view that the issues of the phone messages and videos have been comprehensively dealt with both in the Full Federal Court and this Court. In light of these judgments, the plaintiff's allegation at [3] of her submissions, that "evidence of text messages dated 25 July 2015 and the videos dated 9 March 2013 are not true" are doomed to fail. They cannot be relitigated. … 29 Jabbar argued that there were two contradictory, completely opposite judgments by two different courts in NSW, Australia only. According to Federal Circuit Court, all allegations/evidence (Text messages dated 25 July 2015 and video dated 9 March 2013) produced by applicant/defendant are true and that she was not even allowed to have any contact with my children while according to District court, and Supreme Court, NSW, all allegations/evidence (Text messages dated 25 July 2015 and video dated 9 March 2013) produced by applicant/defendant were not true and Office of Children Guardian issued a "Working with Children Check" clearance in her favor. 30 Jabbar submitted that if all allegations/evidence produced by applicant/defendant were not true, then Family court orders (in case of NCC2265/2015) should be reviewed, and she should be allowed to be with her children. On the other hand, Jabbar argued that the applicant/defendant should be charged for all his several counts of criminal activities including misleading family court to get children's custody. 31 If all allegations/evidence produced by applicant/defendant were true, then the District court and Supreme Court, NSW orders should be reviewed, and she should not be allowed to work with vulnerable people and my "Working with Children Check" clearance should be cancelled. 32 Jabbar said that all these issues (Point 1-12) had been raised and discussed at length in Supreme Court, NSW in another civil matter (case no. 2017/203002) and applicant/defendant was completely failed to provide any evidence to support his case. 33 Jabbar noted that the applicant/defendant also mentioned court orders dated 30 April 2021. From the transcripts of Supreme Court, NSW matter (case no. 2017/203002), it is clear that applicant/defendant managed those orders also by fraud, by manipulating system. The applicant/defendant's current lawyer and barrister represented him in Supreme Court matter (2017/203002) and they represented him on 30 April 2021 also. They are well aware of the fact that their client (Gade) is constantly filing false affidavits and manipulating judicial system. 34 Jabbar has sought that either the applicant/defendant provides evidence (which is highly likely) to support his application and disprove my case, otherwise I request court to make these orders: (1) Dismiss Applicant's "Notice of Motion". (2) Issue summons and "Court Attendance Notice (CAN)". (3) Federal Circuit Court orders dated 16 August 2019 set aside and declare null and void. (4) All orders made by any court, after 16 August 2019, by considering Federal Circuit Court orders dated 16 August 2019 set aside and declare null and void. (5) All orders, made by Federal Circuit Court orders in the matter of [X] v [X] (NCC2265/2015) or by any other court, by considering the evidence of Text messages dated 25 July 2015 and video dated 9 March 2013 true or on the balance of probability set aside and declare null and void. (6) Make children recovery orders for Federal police to find out Gade (DOB:06-04- 2006) and Jabbar (DOB: 03-042012) and return them to plaintiff/respondent. (7) An AVDO is issued to protect Jabbar and X and Y. (8) Put a restriction on Gade to file any case against me in any court in Australia. (9) If possible, provide her with legal assistance to prepare my case further.

The defendant's submissions - Summary judgment

It is unclear what power Jabbar asking the Court to exercise in seeking to "examine records", but even assuming such a power exists (Summons, Order 1), the Court can be comfortably satisfied the proceedings are frivolous or vexatious under r.13.4(1)(a) of the UCPR. The "pleadings" (as well as order 4 of the Relief Claimed), contained in the summons contain the litany of complaints that Jabbar has made in various courts at various different times, including in this Court: Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660.

Resolution

As set out earlier in this Judgment, the plaintiff's allegations regarding the text messages and authenticity of the video footage have been issues have been carefully analysed and adjudicated both in the Federal Court, Full Federal Court and this Court in Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660. They are the subject of issue estoppel and res judicata.
The plaintiff has not persuaded me that she has reasonable cause of action. While she may perceive that she has been aggrieved, this does not amount to an arguable case. The plaintiff also seeks orders that the Federal Police recover her children and hand them over to her. The custody of the children of the marriage has been extensively dealt with in the Family Circuit Court and the Full Federal Court of Australia. There is no jurisdiction for this Court to make these orders. For reasons that appear under the next heading 'Vexatious litigant" I decline to declare that the plaintiff is not vexatious. It is my view that the matters raised in the summons are hopeless. The summons dated 11 April 2022 is dismissed.

Vexatious litigant

The defendant relies on Vexatious Proceedings Act 2008 (NSW) ss 6, 8(7) and 8(9) that read: "6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (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. 8 Making of vexatious proceedings order … "(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. … (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."
In Zepinic v Chateau Constructions Australia Ltd [2018] NSWCA 317 ("Zepinic") at [13] - [19], it was explained: The task assigned to a judge asked to make orders under the VP Act is not simple. The first step is to identify the "proceedings" the subject of the application, and said to be "vexatious". The second step is to determine (applying s 6) which, if any, of those proceedings is: (a) an abuse of the process of the court or tribunal in which it is brought; or (b) instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose; or (c) instituted or pursued without reasonable ground; or (d) conducted in such a way as to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, and therefore "vexatious". (To the extent that it has not been clear before, since the 2018 amendment, it is now clear that a proceeding may be determined to have been conducted to achieve a wrongful purpose, or in a way that harasses or causes unreasonable annoyance, delay or detriment without regard to the subjective intention or motive of the person who instituted the proceedings). The third step is to determine whether the person has "frequently" instituted or conducted vexatious proceedings in Australia, or has acted in concert with such a person (whether or not subject to a vexatious proceedings order) or who is the subject of a vexatious proceedings order (s 8(1)). (The requirement for frequency does not apply if the court is satisfied that the person has acted in concert with a person who is subject to a vexatious proceedings order, or who has frequently instituted or conducted vexatious proceedings in Australia (see s 8(1)(b)). The power conferred by s 8(7) being discretionary, the final step is to determine the manner in which the discretion is to be exercised, bearing in mind the wide scope of the power, particularly as stated in s 8(7)(c). … On a number of occasions this Court has emphasised the need for a judge determining an application for vexatious proceedings order to deal individually with each proceeding said to come within the s 6 definition: see, for example, Viavattene at [49], [67]. In that case, a concession was made by the Attorney-General, who was the applicant, that the failure to take that course was an error. Subsequent examination by this Court exposed why the error was significant: a number of the instances relied on by the Attorney- General at first instance as vexatious did not stand up to scrutiny. In Mahmoud v Attorney General of New South Wales [2017] NSWCA 12, a similar concession to that made in Viavattene was made (again by the Attorney-General) and for similar reasons. It is apparent that this Court accepted that the concession was properly made: see [16]-[17], [45]-[49]. Payne JA said: "49. In the present case it was not sufficient for the primary judge to discern a pattern or series of features of the proceedings as a whole described at a level of generality. That is what the primary judge did… As in Viavattene, it was necessary in the present case to have regard in more detail to the circumstances in which the applications were made and to identify which proceedings were in fact vexatious. This latter finding is also highly relevant to the exercise of determining the proportion of vexatious proceedings, a matter important to the exercise of discretion. Further, the findings made by the primary judge were expressed at a global level, without explaining how it was that particular proceedings were vexatious proceedings and how those proceedings fitted the description of 'frequently instituted or conducted vexatious proceedings in Australia': Vexatious Proceedings Act s 8(1)(a)." In Martin v Attorney General for the State of New South Wales [2014] NSWCA 189, Sackville AJA pointed out the serious consequences of a vexatious proceedings order at [24], highlighting the need for careful consideration to be given to each proceeding the subject of an application."
"Proceedings" is defined in s 4 of the Act. The definition is broad enough to include all civil proceedings, criminal proceedings, interlocutory proceedings, procedural applications and appeals in Australia.
In Potier v The Attorney-General of the State of New South Wales [2015] 89 NSWLR 284 ("Potier") NSWCA 129, Leeming JA (with whom Basten and Meagher JJA agreed) held at [114] - [118]: "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. 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. 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. 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]. Each of those considerations favour "frequently" being a relatively low threshold."

The defendant's submissions

The Court can also be comfortably satisfied that the summons is "vexatious" (s 6 Vexatious Proceedings Act 2008 (NSW). The summons is an abuse of process, it can be considered to have been instituted to harass or annoy Gade and has been instituted without reasonable grounds. Jabbar has conducted these proceedings in a "way as to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment" (evidence from Gade's solicitor concerning "service").

The plaintiff's prior proceedings

On 21 July 2017, Jabbar filed an Amended Statement of Claim filed in the District Court of New South Wales seeking $750,668 against Gade for allegedly providing fake evidence in court. Jabbar's claim was dismissed pursuant to UCPR r 13.4(1) and Jabbar was made to pay Gade's costs (CB 194).
On 16 June 2020, Jabbar filed an ADVO application before Magistrate S Crews in the Local Court of New South Wales. Jabbar's application was dismissed and an application for a Vexatious Proceedings Order in relation to Jabbar was recommended (CB 166-167).
In July 2016, Jabbar filed an amended statement of claim alleging five counts of assault by Gade in the Newcastle Local Court (T20-30). Gade pleaded guilty to one count of assault against Gade that occurred in India in January 2015 (T4-11-28).
In the Federal Circuit Court proceedings before Judge Terry spanning from 2015 - 2019, Jabbar's applications were repeatedly refused by her honour. A summary of the proceedings heard by her honour are as follows.
In Gade v Jabbar (No 7) [2017] FCCA 779, on 20 April 2017, made an application for orders that her honour be disqualified from further hearing this matter, that there be a change of venue and that no further orders in this case be made until the appeals pending in the Full Court were all dismissed. Jabbar argued that all of Judge Terry's interim orders were flawed. When dismissing Jabbar's application for her honour to recuse herself, her honour held that: "[25] …the mere fact that [Jabbar] is not happy with the decisions and considers them all to be wrong is not a reason for me to disqualify myself nor is the fact that there are appeals on foot. … [27] In my view [Jabbar] was not able to point to anything which suggested that I would "deviate from the course of deciding the case on its merits" if I was asked to make further interim decisions or if I conducted a final hearing."
In Jabbar v Gade (No 9) [2017] FCCA 3403, on 27 July 2017, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar's applications for contempt filed on 22 July 2016 and 29 August 2016, as well as the application for contravention filed on 9 March 2017 were all dismissed on the basis that Jabbar failed to establish a prima facie case and that Gade had no case to answer.
In Jabbar v Gade (No 10) [2017] FCCA 3404, on 28 July 2017, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar pay Gade's costs arising out of and incidental to Jabbar's unsuccessful applications for contempt and contravention against Gade. While assessing Jabbar's claims to determine an award of costs, her honour pointed out the weakness of Jabbar's applications by stating at [35]: "[35] …It could be argued that the applications for contempt were doomed to fail given that the evidence in support of them in the mother's affidavit was extremely slight and I question the wisdom of the mother running the applications when the same issues can and no doubt will be ventilated at trial in only two weeks."
From this observation, it may be inferred that Jabbar has instituted proceedings for contempt without reasonable grounds for doing so.
In Gade v Jabbar (No 15) [2018] FCCA 2041, on 2 July 2018, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar's application seeking a stay of final parenting and property orders on 28 May 2018 and 22 June 2018 be dismissed. Her honour commented at [10] and [48]-[49]: "[10] I am concerned about the excessive use of court resources in this matter and about the burden placed on the Legal Aid Commission in continually supplying an Independent Children's Lawyer to appear in the proceedings. I am not going to allow this application in a case to remain on foot. It has no prospects of success. It is not a competent application and I am going to dismiss the application in a case filed on 22 June 2018. … [48] There are no relevant offers of settlement but I take into account as a relevant matter and I keep harping on it that something has to be done to discourage the mother from bringing repeated unnecessary applications. [49] It creates a financial burden for the Legal Aid Commission and therefore the community because the Independent Children's Lawyer has to take part in the matters. It creates a financial burden for the father. He may be earning a high salary but there is a limit to which that can be used as an excuse for bringing applications which have no reasonable prospects of success."
In Gade v Jabbar (No 16) [2018] FCCA 2195, on 19 March 2018, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar was to pay Gade's costs of and incidental to an interim application concerning the wife's failure to make mortgage payments. In doing so, her honour said that at [15]: "[15] A number of the matters contained in the wife's amended response are simply a rehashing of requests about the children which have been brought before me repeatedly in the past…"
In Gade v Jabbar (No 18) [2017] FCCA 3431, on 28 September 2017, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar's oral application to issue subpoenas to the Department of Immigration and the High Commissioner of (country omitted) in Australia was dismissed. Her honour observed at [8] that: "[8] I was concerned when I was informed that Dr Jabbar was seeking to have the subpoena issue that her purpose may not be anything to do with the trial before me but may have an ulterior motive. Dr Jabbar's last submission confirms that I am right to have that concern and that is another reason why I would be disinclined to allow the subpoena to be issued."
In Gade v Jabbar (No 19) [2018] FCCA 2903, on 4 October 2018, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar's application for a stay of proceedings be dismissed. Judge Terry indicated that Jabbar has a history of unwillingness to cooperate with court rules at [25]: "[25] I have absolutely no reason to believe that if I made an order that the order of 4 September 2018 be stayed on terms, that the wife would comply with those terms and that payments would be made. So although in my view I could consider a stay on terms I do not consider that in this particular case it would be appropriate for me to do so."
In Gade v Jabbar (No 20) [2019] FCCA 86, on 2 April 2019, Jabbar made a further application that her honour disqualify herself from hearing an enforcement application. Judge Terry stated at paragraphs [4]-[5] and [7]-[8]: "[4] I have been involved in this matter for a considerable period of time, since August 2015. It is sometimes said that Judges don't choose their cases and litigants cannot choose their Judges. I got this case and I have dealt with it since 2015. [5] Dr Jabbar has appealed numerous of my interim decisions. She appealed my final decision. Her appeals in relation to my interim decisions were unsuccessful. … [7[ The fact that decisions are made in a case which are adverse to one party does not, as I think Aldridge J pointed out in one of Dr Jabbar's appeals, indicate that there is likely to be prejudgment or prejudice or that a Judge should disqualify themselves from further hearing the matter. It would be particularly troubling if a Judge was disqualified from hearing an application to enforce an order they had made simply because they had made the order in the first place and that there may be some perception that they were likely to enforce it, particularly when it was unsuccessfully challenged on appeal. [8] I do not accept that this can or should create a ground for disqualifying the Judge who made the order from hearing the enforcement application. Indeed the business of this Court would be likely to grind to a halt if people were allowed to run that kind of argument successfully. I am going to dismiss Dr Jabbar's application in a case for me to disqualify myself."
In Jabbar v Gade (No 22) [2019] FCCA 2186, on 16 August 2019, in the Federal Circuit Court of Australia Judge Terry order that Jabbar was prohibited from instituting proceedings under the Family Law Act 1975 (Cth) in any court having jurisdiction under that Act. Her honour held at [67]-[70] that: "[67] The outcome in this matter was an extreme one but absent very clear evidence that there might be a different outcome or a variation of the orders if another hearing was conducted it would not be in the children's best interests to allow the proceedings to be run again. [68] This would entail expense to the father, stress for the father (because court proceedings are inevitably stressful and worrying and the mother has a habit of filing endless applications and there is nothing to suggest that this would not happen during a fresh round of proceedings) and disruption for the children who would have to be interviewed again. [69] This case has also consumed a vast amount of court time and as Warnick J said in SPS & PLS: I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time. [70] If the mother's case had some prospects of success or some sign of merit then the fact that it had already consumed an enormous amount of court time would have to be disregarded, because the best interests of the children must come first, but there is absolutely nothing to suggest that her case has any prospects of success or that requiring the father to take part in further stressful and prolonged litigation or the father and children to be re-interviewed would be in the children's best interests and I intend to dismiss the mother's applications for parenting orders.
At the time of making these orders, Judge Terry set out the procedural history of Jabbar's previous applications at [74]-[89]: [74] The father provided the following history of the applications filed by the mother: 15 October 2015 - an application in a case seeking the return of the children to her care. 17 February 2016 - an application in a case seeking that the children be returned to her care. April 2016 - an application in a case seeking a change to the parenting orders. April 2016 - a contravention application. 5 July 2016 - an application in a case seeking an order that the children be returned to her care. 7 July 2016 - an application in a case seeking a recovery order in relation to the children. 22 July 2016 - a Contempt application. 29 August 2016 - a Contempt application 15 September 2016 - a stay application in respect of dismissal of orders made on 12 September 2016. 29 September 2016 - an application in a case seeking to spend time with the children at school and seeking to communicate with them by telephone. 25 January 2017 - a stay application in respect of orders made on 20 December 2016. 9 March 2017 - a contravention application. 28 March 2017 - an application for the Judge to disqualify herself and for the proceedings to be stayed pending hearing of an appeal. 10 April 2017 - an application for the Judge to disqualify herself and for the proceedings to be transferred from the Newcastle Registry. 28 May 2018 - an application to have the Final Orders made on 11 May 2018 suspended. 22 June 2018 - an amended application in a case seeking to spend time with the children for four hours per week supervised. September 2018 - an application for a stay of further property orders made on 4 September 2018. [75] All of these applications were dismissed. On a minority of occasions the dismissal was due to the mother withdrawing the applications albeit only after they had been served on the father and been the subject of at least one court appearance but the remainder were dismissed by the court. [76] The mother filed appeals to the Full Court of the Family Court on 30 March 2016, 4 August 2016, 27 March 2017 and 21 April 2017. These appeals were dismissed on 30 May 2017. She filed an appeal to the Full Court in September 2018 in respect of interim property orders which resulted in the orders being varied but was otherwise dismissed. She filed an appeal to the Full Court against the final orders made on 11 May 2018. That appeal was dismissed on 8 February 2019. [77] On 20 June 2017 the mother filed four applications for Special Leave to appeal to the High Court from the 30 May 2017 decision of the Full Court. These applications were dismissed on 6 September 2017. In March 2018 she filed an application for special leave to appeal to the High Court from the Full Court decision of 8 February 2017. As far as anyone is aware that Special Leave application is yet to be decided. [78] This year the mother has filed the following applications: 7 May 2019 - an application seeking both final and interim orders that the parties have equal parenting rights for the children and that they live with the mother from Sunday to the following Saturday and the father from Saturday to Sunday. 24 June 2019 - an application in a case seeking orders for the father to produce his phone for forensic examination and asking that the court refer "the matter" to the DPP for further investigation. 5 August 2019 - an amended application in a case seeking, in addition to the orders previously sought, interim orders that the parties have equal parenting rights and that the children live with the mother from Sunday to Saturday and the father from Saturday to Sunday commencing on 11 August 2019, that the father pay the mother spousal maintenance of AUD 2,250.00 per week, that the father pay the mother AUD 2,040.00 per week for the maintenance of the children, that the mother be given access to the audio recording of 24 June 2016, that the mother be allowed to inspect the subpoenas produced pursuant to requests issued on 10 July 2016 and that the property orders made on 11 May 2018 not be executed pending the hearing of her application made on 7 May 2019. [79] For reasons given above I intend to dismiss applications for parenting orders contained in the application filed on 7 May 2019 and the interim application field on 5 August 2019. The other applications filed by the mother this year have yet to be determined. [80] The mother has also commenced proceedings in other courts. [81] On 21 June 2017 the mother filed a Statement of Claim in the District Court of New South Wales seeking damages from the father for personal injury (battery). [82] On 21 July 2017 she filed a Statement of Claim in the District Court of New South Wales seeking that the father be convicted of or pay damages for committing perjury. [83] On 3 August 2017 she filed a Statement of Claim in the District Court seeking that the father be convicted of tampering with evidence. She filed a further statement of claim on the same day seeking that the father be convicted of perjury. [84] All four Statements of Claim were dismissed by the District Court on 15 September 2017. [85] On 5 July 2017 the mother filed a Statement of Claim in the Supreme Court of New South Wales claiming $3000,000 (?$3m). Under the heading 'Pleading and Particulars' there was a lengthy dissertation commencing with "Abuse of System." [86] I acknowledge that the mother may since have amended the pleadings. [87] The Supreme Court proceedings were listed for final hearing for three days commencing on 24 May 2019. The mother's solicitor ceased to act for her on the morning of hearing. The hearing was adjourned and the matter is listed in December 2019 for allocation of another hearing date. [88] Finally after proceedings commenced in 2015 the mother made two complaints about the father, who is a health care worker because he had been convicted of assaulting the mother. The mother prevaricated at trial about whether she had made the second complaint but then conceded that she had.[14] [89] The father has been put to cost in instructing solicitors and sometimes counsel to deal with all of the applications filed by the mother in this and other courts. He has also frequently been required to appear personally in court and he appeared personally at the hearing on 5 August 2019 which took about an hour and three quarters. He seeks to be relieved from endlessly dealing with the mother's applications by way of the court making an order pursuant to s.102QB."

Appeals

Jabbar has appealed many decisions of the primary judge in various higher courts. These appeals were largely dismissed by the superior court judges dealing with Jabbar's claims. Some relevant examples include:
In Jabbar v Gade [2017] FAMCAFC 273, on 14 March 2017, Jabbar appealed to the Family Court of Australia, Ainslie-Wallace J ordered that an application made by Jabbar for an extension of time in the Family Court of Australia to appeal interim parenting and property orders made by Judge Terry. That application was refused. Her honour noted Jabbar's appeal was largely devoid of merit at [11]-[12], where she stated: "[11] It is necessary to consider the merits of any proposed appeal. That is, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. [12] The parenting order that the applicant seeks to challenge is her Honour's dismissal of the application that she attend the child's first day of school. That day has come and gone and thus there is no merit in the appeal and to grant an extension of time to appeal against it would be futile. While the applicant acknowledged that the day had passed, she contended that despite filing an application seeking parenting orders, and in particular seeking additional time with her children, the application had not been determined. While the delay is clearly a matter of distress for the applicant, to give leave to appeal against the parenting order of 20 December 2016 would be futile. The application for extension of time in which to appeal the parenting orders will be refused."
In Jabbar v Gade [2017] FamCAFC 106, on 7 June 2017, Ryan J dismissed all appeals brought by Jabbar concerning interim parenting orders and injunctions under s 68B of the Family Law Act 1975 (Cth) and ordered Jabbar to pay Gade's costs. With respect to Jabbar's grounds of appeal, Ryan J noted at [47] and [49] that: "[47] It is necessary to consider the merits of any proposed appeal. That is, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. … [49] Context is always important and in this case the primary judge was being asked inside seven months to consider a third application for interim orders as to with whom the children live. During that period the matter had been before the primary judge on a plethora of occasions, including a recent occasion when it had been necessary for her to make a recovery order to have the daughter returned to the father."
In Potier, Leeming JA explained, "frequently" is not to be assessed merely by an arithmetic calculation. It must be looked at in the context of the litigation being considered: Attorney General of NSW v Wilson [2010] NSWSC 1008 at [12] (Davies J); Attorney General of NSW v Croker [2010] NSWSC 942 at [22] (Fullerton J); Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 at [7] (Davies J).
Ryan J noted the frequency of occasions that Judge Terry has been asked by Jabbar to consider interim applications. However, the actual number of proceedings is not determinative. The individual number of proceedings can be small or large, depending on the context of the litigation being considered. In the context of these proceedings, the plethora of appeals brought by Gade are disproportionate to the subject matter being addressed. As the applications were noted by Ryan J to be devoid of merit they can be considered vexatious pursuant to s 8(1)(a) of the Act.
In Jabbar v Gade (No 4) [2018] FAMCAFC 210, on 5 November 2018, Ryan J dismissed two appeals in the Family Court of Australia brought by Jabbar from the decision of Judge Terry. Jabbar was ordered to pay a portion of Gade's costs. Ryan J noted at [29]: "[29] I agree with the primary judge that the applicant's sole ground of appeal raised against the property orders is "not strong"…"
In Jabbar & Gade [2019] FAMCAFC 14, on 8 February 2019, Aldridge, Austin and Gill JJ held in the Full Court of the Family Court of Australia that Jabbar's primary appeal lacked merit and was dismissed. Some of the other grounds of appeal were said to simply replicate the primary appeal. Jabbar was ordered to pay the Independent Children's Lawyer's costs.
In Jabbar v Gade; Jabbar v Gade [2019] HCASL 344, on 17 October 2019, Bell and Gageler JJ refused special leave to appeal the judgment of the Full Family Court, as their honours held that there was no reason to doubt the correctness of that decision. Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), Jabbar's application was dismissed.
In Jabbar v Gade [2020] FAMCAFC 49, on 9 March 2020, Aldridge J noted on appeal in the Family Court of Australia at [9]-[11] that: "[9] It is apparent from the primary judge's reasons for judgment (Jabbar & Gade (No. 22) [2019] FCCA 2186]) that the purpose of the mother seeking to have the respondent's mobile phone produced is to have it forensically tested so as to demonstrate that the text messages and videos referred to in the order sought were fake. [10] This was an issue that was extensively canvassed in the proceedings before the primary judge in 2017 with judgment being delivered on 11 May 2018 (Jabbar & Gade (No. 11) [2018] FCCA 1056). The applicant appealed that decision of the primary judge and the appeal was dismissed by the Full Court of the Family Court of Australia on 8 February 2019 (Jabbar & Gade [2019] FamCAFC 14). The applicant then filed an application for special leave to appeal to the High Court of Australia, which was dismissed on 17 October 2019 (Jabbar & Gade [2019] HCASL 344). [11] Notwithstanding the determination of the issue, the applicant attempted to re-canvass it before the primary judge who declined to permit it."
In Jabbar v Gade (No 2) [2020] FamCAFC 119, on 24 April 2020, Strickland, Ainslie-Wallace & Tree JJ heard an appeal in the Family Court of Australia from Judge Terry in the Federal Circuit Court of Australia summarily dismissing an application for final parenting orders sought by Jabbar in relation to the children. Their honours dismissed all Jabbar's grounds of appeal as wholly unsuccessful. Their honours outlined the procedural history of Jabbar's applications at [38]-[41]: "[38] In this case, the undisputed evidence was that 20 applications had been filed by the mother commencing in October 2015, all of which were dismissed. Her Honour recorded that following the making of the final orders in May 2018, the mother brought six applications seeking parenting and property orders. All were dismissed (with one application then yet to be determined). [39] To that list must be added six appeals to the Full Court of the Family Court of Australia and six applications seeking Special Leave to Appeal to the High Court of Australia. All of these applications were or have since been dismissed. [40] The mother has not restricted herself to applications under the Act and has commenced proceedings against the father in the New South Wales District Court and Supreme Court of New South Wales. She has also made complaints to the board that regulates the father's professional practice (at [80]-[88]). [41] Her Honour concluded: 114. I am comfortably satisfied that the mother has frequently instituted or conducted vexatious proceedings in Australian courts and tribunals and also comfortably persuaded that unless an order is made restraining the mother from filing further applications without leave she will continue [to] file such applications. 115. Not only does the mother's relentless and obsessive conduct to date give rise to that concern, her submissions on 6 August 2019 also give rise to it."

Proceedings in the Local Court

On 14 April 2016, in Local Court proceedings 2016/15261, Gade plead guilty to the offence of common assault and was sentenced to a good behaviour bond for 14 months.

Proceedings in the Supreme Court

In Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660, Jabbar filed a statement of claim in the Supreme Court of New South Wales, in which she sought damages against Gade for five claims of assault and battery. Gade admitted one of the assaults. On 16 December 2021, Walton J ordered that Jabbar had established liability with respect to the assault on 2 March 2013 and $7,000 of damages were awarded. Walton J rejected the remaining claims brought by Jabbar based on the first, second, fourth and fifth assaults. I accept that Jabbar had some success in these proceedings.
Counsel for Gade drew the Court's attention to an issue relating to the plaintiff's serving of documents. He submitted that there was a big problem with service, we still haven't been served with these documents, and the point that these affidavits go to is the vexatious proceedings issue in terms of conduct of proceedings which your Honour is entitled to take into account under section 6 or, sorry, section 7 or section 8 in terms of conduct of proceedings (T4.8-12).
On this topic, Gade relies on the affidavit of 4 of his solicitors or employees, Ayda Shepherd sworn 27 July 2022, Neisha Shepherd sworn 28 July 2022, Jessica Fordham sworn 2022 and Susanne Siderovski sworn 27 July 2022. I shall deal with this issue first, followed by each of the grounds the plaintiff's summons in seriatim.

Service of documents

I will summarise the evidence of the deponents. Ms Siderovski, Executive manager at NLS Law, deposed that on Thursday 21 April 2022, she was working in the office area of NLS Law and Mr Ayden Shepherd was working in his office. She recounts the following: "[3] At approximately 9:45am the front door bell rang. I went to check the front door. When I opened the door a female was standing there. She said words to the effect of, " Will you accept these documents as service?" I looked at the cover sheet and saw that it had [Gade] on the cover. I said words to the effect of, "Who is this for? Is this for the new matter?" She replied words to the effect of, "Yes it is. [Gade]" I said words to the effect of, "I don't know if we act in that matter. I will need to go and check." I had the documents in my hand and she put her foot in the door. I said words to the effect of, "can you please remove your foot from the door?" She said words to the effect of "No. How can I know that you might not come back for four hours? I gave her the documents back.
Ms Shepherd was not physically in the office on 23 June 2022. She deposes in her affidavit at [5] that she received a telephone call from the employed Solicitor Ayden Shepherd of NLS Law who advised her that a message was received from the reception service that a person who he now knew to be [Jabbar] was waiting outside in her car wanting to serve NLS Law with documents and that she would be there for 10 minutes to collect the documents from her. Mr Shepherd told me that he had opened the office door and saw [Jabbar] in the car and it looked like she was filming him with her mobile phone. I instructed Mr Shepherd that he was not to approach [Jabbar] and that [Jabbar] was to come to our front door to serve the documents. I spoke to Ms Fordham who is the Associate Solicitor at NLS Law and advised her the same. I told Mr Shepherd and Ms Fordham that I was concerned for their safety if they approached [Jabbar] outside of the office at her car. I instructed Mr Shepherd to email [Jabbar] and request that she attend our office front door to serve the documents.
Ayden Shepherd in his affidavit confirms that at around 1:17pm on 23 June 2022, he saw an email had been received from our reception service. The email contained a message advising that a caller was outside of the office with paperwork that was to be signed and stamped and that the caller would only be outside of the office for 10 minutes.
After sighting [Jabbar] he waited at the front door of the NLS Law office. I was waiting at the front door for [Jabbar] to attend the NLS Law office. I saw that [Jabbar] appeared to be looking towards him.
At 1:26pm on 23 June 2022 I sent an email to [Jabbar] at the email address XXX@gmail.com. The email outlined that we required [Jabbar] to attend the front door of the NLS Law office to serve documents.
At no point while I was waiting at the front of the NLS Law office did [Jabbar] approach him speak with him directly. [Jabbar] did not provide him with any documents or information.
In response, the plaintiff explained that she was in their office. She phoned them and said "I'm coming to your office, I'm outside your office, please come and collect it. I will wait." She says that she clearly mentioned that she would wait there for a certain period of time. Nobody came. Nobody contacted her. She says that they had her phone number, they could have called her, they could have sent her an email but nobody made any contact with her. The Court didn't make any orders for me to file any tender bundle. First, they made an application that they - after that when she went to their office to give them tender bundle, had created this issue (T4.44-5.2). She gave the bundle to the defendant's Counsel in Court.
While the plaintiff's attempt to serve documents on the defendant's solicitor's office was unusual, so was the conduct of the solicitor's office. I make no adverse finding against the plaintiff concerning her attempt to serve these documents.

Resolution

There is no doubt that Jabbar has frequently instituted or conducted vexatious proceedings in the Federal Circuit Court.
There is no doubt that Jabbar's previous proceedings fell within the meaning of vexatious proceedings pursuant to s 6(c) of the Act. Jabbar had conducted litigation in a manner intended to delay and annoy pursuant to s 6(d). She had instituted proceedings in the Federal Court that had "no prospects of success". Her applications have been described as 'unnecessary' and imposing a financial burden on Gade and the community.
Judge Terry's concern that Jabbar 'may have an ulterior motive' for issuing the subpoena alludes to the fact that Jabbar has conducted the above proceedings to achieve a wrongful purpose pursuant to s 6(d) of the Act. Her honour pointed out the significant length and quantity of proceedings instituted by Jabbar. Jabbar has repeatedly requested that Judge Terry disqualify herself, in reply to what was dissatisfaction with the result.
It is a serious step to deprive a person of the right to institute proceedings. Of course, the right is not deprived completely, Jabbar will have the entitlement to seek leave to institute proceedings under s 14 Vexatious Proceedings Act 2008 (NSW).
I accept that Gade has been exposed to considerable litigation and expense. However, not all of that litigation has been unjustified, although much of it has.
As set out in s 8(7) of the Act, the Court has a broad discretion as to the orders that may be made which include: 1. an order staying all or part of any proceedings already instituted; 2. an order prohibiting the person from instituting proceedings; and 3. any other order that the Court considers appropriate in relation to the person.
In considering any order that should be made, it is relevant to have regard to the purpose of a vexatious proceedings order which was explained by the Court in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56] as follows: "[56]… The purpose of the statutory power is not to punish the litigant for past misdeeds. The purpose is to shield other litigants from harassment and to protect the Court itself from the expense, burden and inconvenience of baseless and repetitious suits …"
In the end, it is necessary to examine each of the proceedings in which Jabbar was involved in order to determine whether any, some or all are vexatious proceedings as that term is defined in the Act.
In so far as the Federal Court is concerned, Jabbar has a habit of responding to decisions, orders or statements that she does not like by: 1. Appealing against even case management orders that do not suit her; 2. Lodging stay applications and appeals generally that have no reasonable prospects of success; 3. Corresponding directly with the Court including making false and unfounded allegations of improper conduct on the part of the judicial officer; and 4. Accusing judicial officers of actual or apprehended bias.
In this Court in Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660, Jabbar filed a statement of claim in the Supreme Court of New South Wales, in which she sought damages against Gade for five claims of assault and battery. Gade admitted one of the assaults. On 16 December 2021, Walton J ordered that Jabbar had established liability with respect to the assault on 2 March 2013 and $7,000 of damages were awarded. Walton J rejected the remaining claims brought by Jabbar based on the first, second, fourth and fifth assaults. I accept that Jabbar had some success in these proceedings.
She has also had a measure of success as she had a loss in the Local Court that was overturned on Appeal in the District Court. Jabbar sought to issue a Court Attendance Notice (CAN) with the Belmont Local Court.
That set out allegations against Gade seeking to issue a charge of perjury and doing an act to pervert the course of Justice. On 15 July 2020, Jabbar appeared before the Magistrate at Local Court Belmont. At T2.42-47 the following exchange occurred: "HIS HONOUR: And have you sought and obtained, from the New South Wales Supreme Court, an order under section 338 sub-section (2) of the Crimes Act, granting you leave to bring the prosecution in respect of the charge of perjury? APPLICANT: No your Honour."
She also raised the "fake evidence" issue. His Honour in his ex tempore Judgment stated (T3.43-4.2): "HIS HONOUR: Mis [Gabbar], the Court Attendance Notice you are seeking to have issued. APPLICANT: Yes. HIS HONOUR: Refers to things done in the Federal Circuit Court. That's what the Registrar had to decide. Your application for me to review her decision and overturn it is refused. For, not only the reasons set out in writing, that you don't have the necessary authority to bring the charge or perjury, but also there's the additional reason that your application also falls foul of the principle expanded in the decision of Loewenthal ex parte Blacklock in relation to the Commonwealth legislation and State legislation. As the Registrar found, not only don't you have the authority to bring the charges, but you have no realistic chance of success in relation to the Court Attendance Notice you have brought. YOUR APPLICATION IS REFUSED."
On 30 April 2021, Jabbar had lodged an apprehended domestic violence order against Gade. It was heard in the Local Court, Belmont. The Magistrate dismissed the application on the basis that the AVO's had been ventilated somewhere else (T34). Her Honour made a written recommendation to the Attorney General of NSW pursuant to s 8(6) of the Vexatious Proceedings Act for a declaration.
As previous stated at [51] of this Judgment, in Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660, Jabbar filed a statement of claim in the Supreme Court of New South Wales, in which she sought damages against Gade for five claims of assault and battery. Gade admitted one of the assaults. On 16 December 2021, Walton J ordered that Jabbar had established liability with respect to the assault on 2 March 2013 and $7,000 of damages were awarded. Walton J rejected the remaining claims brought by Jabbar based on the first, second, fourth and fifth assaults. I accept that Jabbar had some success in these proceedings.
I am satisfied that she has frequently instituted and conducted vexatious proceedings in the Federal Court. So far in the Courts of New South Wales she has had some measure of success. As I said earlier.
At this stage, I am not satisfied that it is appropriate to make the order prohibiting Jabbar from instituting proceedings in New South Wales pursuant to s 8(7)(b) of the Act. However, if Jabbar continues to bring proceedings in NSW Courts and Tribunals that cover the same subject matter as she did in the Federal Courts and in NSW Courts and Tribunals, it is my view that the Attorney General should consider taking steps to seek to have her declared vexatious.

Costs

Costs are discretionary. Costs follow the event. The plaintiff was unsuccessful in that her summons has been dismissed. The defendant was also unsuccessful in having the plaintiff declared vexatious. In these circumstances the appropriate order for costs is that each party pay their own costs.

The Court orders: 1. The summons filed 11 April 2022 is dismissed. 2. Each party is to pay their own costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 October 2022

Vexatious Proceedings Act 2008(NSW)s 6, 8, ss 6, 8(7)

Crimes Act 1900(NSW)s 338

Family Law Act 1975(Cth)ss 76Q, 67U

At a glance

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Judgment (16 paragraphs)

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Legislation Cited (6)

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