By Notice of Motion filed 14 September 2018, the defendants (Monash IVF Pty Ltd and Monash IVF Group) seek an order that pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) the plaintiff (Ms Seidler) be prohibited from instituting proceedings in NSW against either of the defendants or their employees, directors, officers or legal representatives. The defendants also sought their costs of the proceedings including the motion to date.
This motion follows the dismissal of the plaintiff's action on 16 July 2019 in my decision of M v Monash IVF Pty Ltd [2019] NSWSC 928. In that matter the plaintiff brought claims against the defendants by way of an extensive statement of claim running some 2000 paragraphs. I ultimately found that there was no discernible cause of action apparent (at [20]) and it was difficult to understand what the plaintiff's claim was (at [19] and [20]). I further noted the breadth and voluminous nature of the pleading and the large amount of supporting evidence filed, did not serve to assist me in understanding her claim (at [20]). It was further clear to me that many of the allegations which the plaintiff sought to make before me, had in part or in whole already been addressed by Rein J in 2014 (at [18]).
Counsel for the defendants also referred me to the following matters in which the plaintiff had been party:
1. One judgement in Federal Magistrates Court;
2. Seven judgements in Federal Court (including a judgement declaring the plaintiff a vexatious litigant);
3. Two judgements in proceedings unrelated to these proceedings in NSW Supreme Court;
4. One judgement in NSWCA;
5. One refusal of special leave in the High Court;
6. Five judgements the subject of proceedings in the Federal Circuit Court;
7. A further judgement in the Federal Court; and
8. In proceedings related to these proceedings, four separate judgements in the NSW Supreme Court.
The plaintiff was not successful on any occasion.
This motion was listed for hearing before me on 17 October 2019. I was assisted with written submissions from counsel for the defendants, who submitted that the plaintiff should be declared vexatious in circumstances where she has filed a significant and numerous number of irrelevant documents, has been in constant and incessant communication with the Court and the parties, and has attempted to re-agitate proceedings that have already been ventilated in the court. At hearing Ms Seidler made lengthy oral submissions to the effect that she opposed the motion. Her submissions were lengthy and were, at times quite difficult to comprehend.
On 17 October, I briefly indicated to the parties that I would make the orders as sought and provide more detailed written reasons shortly.
[3]
Legal principles
Section 8 of the Vexatious Proceedings Act, states:
8 Making of vexatious proceedings order
(1) When orders may be made
An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that:
(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or
(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.
(2) For the purposes of subsection (1), an authorised court may have regard to:
(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and
(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section), and
(c) evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995.
(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
….
The provision was considered by the Court in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (at [2]-[9]):
A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen's ordinary right. It is, therefore, not lightly to be made.
Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant's institution of such proceedings may fairly be said to be both habitual and persistent.
Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding's legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant's conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
Eighthly, each of these notions - the want of reasonable grounds, habitual institution and persistent institution - are to be gauged objectively. But this does not mean that a litigant's own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
In deciding that proceedings are vexatious, the Court may have regard to the findings and results of the proceedings under consideration (Attorney General v Wilson [2010] NSWSC 1008 at [22]) and how the person has conducted themselves before the court (Gargan at [12]).
The court may also consider that the proceedings are an abuse of process. The court considers this in Attorney General v Crocker [2010] NSWSC 942 (at [17])
The plaintiff placed particular reliance on the definition of vexatious proceedings in ss 6(a) and (c), namely that the defendant instituted proceedings in various state and federal courts and various tribunals that were an abuse of the processes of those courts and tribunals, and that he instituted or pursued proceedings in those forums without reasonable ground. In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [9] Gleeson, Gummow, Hayne and Crennan JJ observed that what amounts to an abuse of court process is insusceptible of a formulation comprising closed categories. That said, the concept of abuse of process is often relied upon in the exercise of the inherent jurisdiction of superior courts to stay proceedings and was frequently used to ground orders made under s 84 of the Supreme Court Act. An abuse of process includes, by illustration rather than by definition, the following examples:
i The pursuit of proceedings that have no prospect of success, or no real prospect of resulting in a remedy of any substance, but which involve unjustifiable expense or use of judicial resources; ii. The pursuit of concurrent proceedings for substantially the same relief, or the pursuit of fresh proceedings after unremedied default in previous proceedings.
And later ([133]-[134]):
The defendant's litigation history also demonstrates that he has almost routinely refused to accept decisions adverse to his claim or interest and instead has pursued appeals through the statutory appeal process, to the Court of Appeal or the Full Court of the Federal Court, including at least ten different applications for special leave to appeal to the High Court in the last ten years. Ms Ward accepted that taking advantage of rights of appeal does not of itself amount to the institution of vexatious proceedings but submitted that the defendant's determination to persist with futile appeals in the face of repeated judicial observations that his arguments were doomed to failure, is oppressive upon the respondents to the appeal and an abuse of the courts' processes. I accept that submission.
Finally, it was submitted that there is also a discernible pattern of unpaid costs orders (which in some cases resulted in repeated applications by understandably frustrated respondents for orders for security for costs). I am satisfied that to cause others to incur legal costs in responding to hopeless applications, in circumstances where the defendant has blithely disregarded costs orders made against him is also an abuse of the courts' processes.
In considering whether proceedings are 'frequent' the court must look further than the number of actions brought (Singh v The Owners Strata Plan 11723 & Ors [2013] NSWSC 1595 at [52]). Further the court will be more likely to consider proceedings as frequent when brought against the same person or involve the same subject matter (Sitberg v Maples [2010] NSWSC 1344 at [32]).
[4]
Consideration
Based not only on my decision to dismiss the plaintiffs claim on 16 July 2019, but the various other proceedings that the plaintiff has initiated against the defendants, I would grant the orders as sought by the defendants. It is clear, that Ms Seidler has been involved in numerous other proceedings in New South Wales in a variety of forums over many years. She has not been successful on any occasion. Moreover she has been declared vexatious by the Federal Court. It is clear also, that she has sought to agitate proceedings multiple times on the same subject matter and against the same defendants.
Most significantly, the conduct of Ms Seidler in the proceedings before me, as detailed in my judgement 16 July 2019, can be clearly characterised as vexatious. It seems to me that the resources that have been expended by the defendants to date in seeking to restrain Ms Seidler from either commencing and/or pursuing these proceedings have been quite disproportionate to the merits that she seeks to agitate on her side. I have no doubt that she is passionate, angry, and feels genuinely aggrieved by the situation. But the formulation of her grievances in a comprehensible coherent and intelligible way is of fundamental importance to the administration of justice. She has been unable, despite significant time, to formulate her claim in any understandable way or identify any cause of action.
Her conduct in the motion before me was likewise confused, and incomprehensible. Although she was clearly genuinely upset and aggrieved, I could not understand the allegations in her submissions, nor the substance of the points she wished to make.
I would make the orders as sought and prevent Ms Seidler instigating proceedings in NSW against Monash IVF or Monash IVF Group or any of their employees, agents, officers, etc without leave of the Court. I would also order that the plaintiff pay the defendants' costs of the proceedings and the motion.
[5]
Amendments
23 October 2019 - correct judgment published
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Decision last updated: 23 October 2019