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Category: Procedural rulings

Parties: Andreas Karnauchow (plaintiff)
Commissioner of Corrective Services (first defendant)
NSW Civil and Administrative Tribunal (second defendant)

Representation: Counsel:
Andreas Karnauchow (plaintiff, self-represented)
Solicitors:
Crown Solicitor for New South Wales (first & second defendants)

File Number(s): 2025/406597

Publication restriction: Nil

JUDGMENT – EX TEMPORE

Introduction

1. Andreas Karnauchow (‘the plaintiff’) is currently in custody at Junee Correctional Centre.

2. On 10 October 2025, he filed a summons seeking judicial review of, in substance, a procedural order in connection with appeal proceedings against the Commissioner of Corrective Services (‘the defendant’) which are currently before the NSW Civil and Administrative Tribunal (‘NCAT’). Those proceedings relate to his complaint that, whilst an inmate, he has been subjected to discrimination (and possibly victimisation).

3. The plaintiff seeks interim and final orders: ultimately, by way of final relief, the plaintiff seeks an order setting aside the order made by NCAT on 21 August 2025 which dismissed his application for a “[t]emporary [s]tay”.

4. The defendant, by notice of motion filed 19 December 2025, applies for summary relief on the ground that the summons is an abuse of process and/or frivolous and vexatious. Specifically, it was argued to be “futile”, given the NCAT proceedings have been heard, albeit the decision is reserved.

Background

5. The background facts, including the relevant procedural history of the litigation, are as follows.

6. The plaintiff’s proceedings in NCAT commenced in 2023. They were dismissed by orders made on 19 December 2023: Karnauchow v State of NSW, NSW Department of Communities and Justice (Corrective Services) [2023] NSWCATAD 326 (‘the 2023 decision’).

7. A further complaint was made by the plaintiff against the defendant which, ultimately, was referred to NCAT. On 3 October 2024, the plaintiff was refused leave to proceed with that claim: Karnauchow v State of NSW (Corrective Services NSW) [2024] NSWCATAD 294 (‘the 2024 decision’).

8. In 2024, the plaintiff lodged a notice of appeal against the 2023 decision (‘the appeal proceedings’). Numerous applications were made by the plaintiff in those proceedings. They are set out, with some of the procedural history before NCAT, in Karnauchow v State of NSW*, NSW Department of Communities and Justice (Corrective Services)* [2025] NSWCATAP 24 at [11]-[16] (a decision made on 3 February 2025 – ‘3 February decision’) and Karnauchow v Commissioner of Corrective Services [2025] NSWCATAP 99 at [4]-[14] (a decision made on 2 May 2025 – ‘2 May decision’).

9. The decision made on 2 May 2025 arose out of an application made by the plaintiff on 16 December 2024 for various procedural orders. Limited orders were made for the provision of material to him and the application was otherwise dismissed: 2 May decision at [62].

10. On 15 July 2025, the plaintiff lodged a further application in NCAT that, relevantly, sought a “[t]emporary stay to these proceedings… until the [plaintiff] is able to conduct his own online legal research access to a laptop with a word program” (Aldor 2025 affidavit, page 32, Annexure B).

11. That application was dismissed by NCAT on 21 August 2025 (Aldor 2025 affidavit, page 31, Annexure B). The Appeal Panel determined that this application was “in substance seeking a stay of the 02 May 2025 decision”, going on to conclude (at [10]):

“… I am not satisfied that the Tribunal has jurisdiction to grant a temporary stay of the 02 May 2025 decision pursuant to s 32(2)(a) of the NCAT Act. The jurisdiction in this subsection is limited to the making of ancillary and interlocutory decisions for the exercise of the Tribunal’s internal appeal jurisdiction. The internal appeal jurisdiction of the Tribunal does not extend to any decision of the Appeal Panel: NCAT Act, s 32(3)(a).”

12. The Appeal Panel, however, concluded that, if there was jurisdiction to grant a temporary stay of the 2 May 2025 decision, then (at [11]):

“… I would have dismissed the 15 July 2025… application as the [plaintiff] is seeking to reagitate the same issues as were decided in that decision. A stay would cause further delay in the finalisation of the Appeal as it would necessarily require the vacation of the hearing date of the Appeal on 10 October 2025.”

13. On 2 October 2025, the plaintiff filed 168 pages of submissions in support of his appeal. The appeal proceedings were heard on 10 October 2025. The plaintiff appeared by AVL and, notwithstanding the lengthy written submissions filed, also made oral submissions. At the completion of the hearing, the Appeal Panel reserved its decision, albeit that further written submissions covering “particular topics” were invited to be served (Aldor 2025 affidavit at [10]). The plaintiff accepted this invitation, filing further written submissions limited, in accordance with the order made, to 10 pages on 12 November 2025 (Aldor 2025 affidavit at [11]).

14. As I have noted, on the day that the appeal proceedings were heard by the Appeal Panel, the plaintiff filed his summons in this Court.

15. On 10 March 2026, the Appeal Panel invited the parties to provide further submissions on particular topics and listed the appeal proceedings for a further hearing confined to those topics on 14 April 2026 (Aldor 2026 affidavit at [3]). That further hearing of the appeal proceedings was subsequently vacated, and they were ultimately heard on 2 June 2026 (Aldor 2026 affidavit at [7](b)). Following that hearing, the Appeal Panel reserved its decision (Aldor 2026 affidavit at [9]).

Summary relief: the power and principles

Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’)

16. Rule 13.4(1) of the UCPR provides:

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.

17. A purpose of r 13.4 is to “save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings” and to protect “the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications”: Ugur v Attorney-General for NSW [2019] NSWCA 86 at [70].

18. The relevant principles that govern summary relief are settled*: Dey v Victorian Railways Commissioners* (1949) 78 CLR 62, 84-85; [1949] HCA 1*; General Steel Industries Inc v Commissioner for Railways (NSW)* (1964) 112 CLR 125, 128-129; [1964] HCA 69 (‘General Steel’). In General Steel, Barwick CJ explained the principles in these terms (at 129):

“The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.”

Frivolous or vexatious proceedings

19. In Rana v Commonwealth of Australia [2013] FCA 189 at [41]-[43] (‘Rana’), Mansfield J provided the following helpful summary of the background principles:

“In Pickering v Centrelink [2008] FCA 561, McKerracher J made the following useful observations at [27] about when a proceeding is frivolous, vexatious and/or an abuse of process:

In NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 434, although the majority (Allsop and Conti JJ) reached a different ultimate conclusion, there is, with respect, a helpful collection of authorities by Gray J on ‘frivolous’ at [16]-[22] from which it may be concluded that if, despite whatever attempts are made to discern a cause of action in a case, it is still not arguable, it is frivolous. A matter is also frivolous when it is without substance or groundless or fanciful: Bullen & Leake Precedents of Pleadings (1975) 12th ed, p 145. However such matters will only be struck out when it is so obviously frivolous that to put it forward, would be an abuse of the process of the court: Young v Holloway [1895] P 87. The words ‘frivolous’ or ‘vexatious’ are used either separately or in conjunction, or interchangeably with the expression ‘abuse of the process of the court’: Young v Holloway [1895] P 87 at 90-91.

Proceedings have been held to be “vexatious” in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought; they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court: see generally Attorney-General v Wentworth (1988) 14 NSWLR 481.

It has also been pointed out that “vexatiousness” is a quality of the proceeding rather than a litigant’s intention so that the “question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious”: Re Vernazza [1960] 1 QB 197 at 208.”

20. As the decision in Rana (and the authorities referred to within it) emphasise, proceedings that are frivolous or vexatious can amount to an abuse of the process of the Court, and the expressions “frivolous” and “vexatious” can be, and often are, used interchangeably with “abuse of process”: *Crocker v Toys ‘R' Us (*Australia) Pty Ltd (No 3) [2015] FCA 728 at [9]. That point was also made in Ridgeway v the Queen (1995) 184 CLR 19, 74-75; [1995] HCA 66.

21. The defendant did not seek to develop, separately, an analysis of the concept of abuse of process (as to which, see: UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 at [1] and [72], and Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25]), merely arguing that the plaintiff’s summons is properly characterised as such because it is frivolous or vexatious, given its futility.

Discussion and consideration

22. The defendant’s overarching submission was that the plaintiff’s summons should be summarily dismissed because, given it is futile, it is an abuse of process and/or frivolous or vexatious (or both), advancing two, partly overlapping, arguments: first, irrespective of whether the decision to dismiss the plaintiff’s application for a stay was erroneous, “it is no longer a controversy which can have any impact on the procedural rights of the [p]laintiff”; and, secondly, given the proceedings have been heard by the Appeal Panel and the plaintiff participated fully in those proceedings, the “appeal” to this Court is futile (defendant’s submissions at [10], [13]).

23. The plaintiff’s position was that he was content for the summons to be dismissed, but only in the event that the Appeal Panel made a decision favourable to him; if not, he submitted that, in effect, and notwithstanding the problems with the “form” of the summons, it should be stood over pending the Appeal Panel’s decision.

24. Before addressing the arguments for summary relief, it is necessary to address the form of the plaintiff’s summons. As noted, the plaintiff has not sought to appeal, but rather pursues judicial review.

25. His summons is lengthy and fails, by some margin, to comply with the requirements of r 59.4 of the UCPR – notably, the requirement to state “with specificity, the grounds on which the relief is sought”. The importance of compliance with this requirement has been repeatedly emphasised: Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113 at [68]; CSR Limited v Ewins [2020] NSWSC 511 at [69].

26. The plaintiff’s underlying complaint – the basis for his application before NCAT – appears to rest upon his asserted need to conduct legal research in the appeal proceedings. In fact, as part of the final orders sought, he seeks an order that will temporarily stay those proceedings whilst he “[conducts] his legal research by mail correspondence with various universities” that may assist him, including “AirTasker, or other private or Government Agencies that may assist in searching online legal platforms on [his] instructions” (summons, page 3).

27. The summons then goes on to set out the “grounds” of review. Their expression makes summarising them difficult. There is, however, little point in attempting that unenviable task, as the summons is a disorganised series of assertions lacking structure and intelligibility.

28. Ordinarily, in relation to a pleading with those characteristics, an order is made under r 14.28 of the UCPR striking out the pleading. However, as the plaintiff commenced proceedings by summons, and not by statement of claim, r 14.28 does not, strictly, apply. That is because Part 14 of the UCPR “applies to proceedings commenced by statement of claim and to proceedings in which a statement of claim has been filed”: r 14.1; Hassan v Sydney Local Health District [2022] NSWSC 954 at [81]. Notwithstanding, the Court has, as an incident of its jurisdiction, the power to control its own proceedings and procedure. As was said in Global Partners Fund Ltd v Babcock & Brown Ltd (In Liq) [2010] NSWSC 270; 267 ALR 144 at [77], the Court thus has:

“… the power to, and will, strike out a pleading which discloses no reasonable cause of action or defence, or which has a tendency to cause prejudice, embarrassment or delay in the proceedings or which otherwise is an abuse of the process of the Court, applies… with no less force albeit Pt 14 UCPR does not strictly apply…”

29. When the form of the summons was raised with the plaintiff, he accepted that it was “a mess”, that it was done “in a rush” and that it had “a lot of problems with it”. I agree.

30. I am mindful that the plaintiff is unrepresented. Notwithstanding, the Court “is not required to undertake a partisan analysis of lengthy, unstructured assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point”: Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42]. Further, in connection with the immediate problems presented by the form of the plaintiff’s summons, it is not the role of the Court to assist parties in drafting pleadings which comply with the UCPR: Gunns Ltd v Meagher [2005] VSC 251 at [57]; McGuirk v The University of New South Wales [2009] NSWSC 1424 at [35].

31. At a minimum, an order striking out the summons should be made.

32. The defendant’s argument, however, is that the plaintiff’s summons has a more fundamental – and fatal – problem: futility. This consideration is relevant because the issue of any prerogative writs (including, most relevantly here, certiorari) is discretionary: Re Refugee Review Tribunal; E**x parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [55]-[60]. The defendant’s essential argument is that events have more or less overtaken the plaintiff’s application for a temporary stay, with the consequence that this Court would inevitably decline relief because it would be inutile. In substance, this argument directs attention to the utility of another hearing and, as it does, the critical question is whether “no useful result could ensue”: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400; [1949] HCA 33 (‘Ozone Theatres’); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [74].

33. Assuming, favourably to the plaintiff, that the 21 August 2025 decision is erroneous in a way that attracts the supervisory jurisdiction of the Court under s 69 of the Supreme Court Act 1970 (NSW) (and that proceedings for judicial review, rather than an appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (‘NCAT Act’), is the proper way to proceed: as to which see [38], below), that would only result in the decision being quashed and the matter being remitted to the Appeal Panel for determination in accordance with law. Contrary to what the plaintiff sought in the summons, the determination of any application for a “temporary stay” is for the repository of the power, not this Court.

34. However, the Appeal Panel has heard the plaintiff’s appeal and, necessarily, will determine whether the Tribunal was in error in making the 2023 decision. Given those circumstances and the fact that the plaintiff fully participated in the proceedings – including by making written and oral submissions to the Appeal Panel – it is more than a little difficult to see how there could be any principled basis upon which to order a “temporary stay” of the proceedings so as to permit him to undertake the “legal research” he says is required. Further, if, as is likely to be the case, any challenge to the refusal to grant a “temporary stay” is properly by an appeal to this Court by leave, pursuant to s 83(1) of the NCAT Act, then the difficulties are magnified.

35. There is a further problem with the plaintiff’s approach in challenging the refusal to order a “temporary stay” when the appeal proceedings have been heard but not determined: it is premature. That is because when the Appeal Panel determines the matter and delivers its reasons, it will make orders either dismissing the appeal or upholding it (in whole or part). If the latter, then the summons may become entirely otiose or academic. If the former, then, at that time, any right that the plaintiff has to seek judicial review of the decision or appeal from it can be pursued.

36. In relation to any challenge that the plaintiff may pursue arising from the Appeal Panel’s decision (when delivered), the following should be noted. First, and subject to the constraints in s 83(1) of the NCAT Act, the right of appeal is accepted to extend to all interlocutory or other orders which are steps in the procedure leading up to final judgment and which affected its result: see Ramton v Cassin (1995) 38 NSWLR 88, 92-3; Macquarie Bank Limited v National Mutual Life Association of Australia Limited (1996) 40 NSWLR 543, 549; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [4]-[8]. Secondly, in relation to judicial review (and subject to [38], below), the materiality of any argued wrongful refusal of, essentially, an application for an adjournment would become clear.

37. It follows that the form of the summons, the difficulties – given what has occurred in the appeal proceedings since 21 August 2025 – with the appeal proceedings being stayed by the Appeal Panel (see [33]-[34], above) and the prematurity of it warrant it being struck out. That order will be made. In doing so, it should be noted that, as the defendant accepted, this order is made without prejudice to any right of the plaintiff, if so advised, to raise this ground on any subsequent challenge to the final decision of the Appeal Panel.

38. Given this conclusion, and the fact that the defendant did not raise any question about the plaintiff pursuing judicial review instead of exercising any right of appeal, it is unnecessary to address the permissibility of that approach: see Meagher v Stephenson (1993) 30 NSWLR 736, 738-739; Hill v King (1993) 31 NSWLR 654, 659; Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [8].

Orders

39. For the above reasons, I make the following orders:

40. Order that the summons filed 10 October 2025 be struck out.

41. Order that the plaintiff pay the defendant’s costs of the proceedings in this Court.

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