Plaintiff's litigation history
32In support of the application, the defendants relied upon the affidavits of Mr Jack Leitner, solicitor, sworn 17 April 2012, 31 May 2012 and 27 June 2012. Mr Leitner's first affidavit annexed a series of decisions in which the plaintiff was named as a party. Those decisions were obtained by Mr Leitner by conducting a search of the AustLII database. He identified 26 decisions in which the plaintiff had instituted proceedings, was self-represented and was ultimately unsuccessful.
33The proceedings may be considered in series. The first series of proceedings commenced in 2000 in the Federal Court. The plaintiff instituted six applications against a number of parties including the Prime Minister, Ministers of the Commonwealth and of the State of New South Wales, a Commonwealth department officer, the New South Wales Ombudsman, the New South Wales Independent Commission Against Corruption and the New South Wales Auditor-General. The plaintiff alleged that the respondents had engaged in conduct proscribed by the Racial Discrimination Act 1975 (Cth) stemming from what she perceived to be inadequate responses to various complaints she had made to them regarding her period of employment at the University of New South Wales. The primary judge (Moore J) found that nothing in the material pointed to by the plaintiff would indicate that she was dealt with in anything other than a "regular" way: Paramasivam v Wheeler [2000] FCA 1559 at [7].
34The plaintiff sought leave to appeal against that decision on the basis of statements allegedly made by the primary judge during the course of oral submissions. In refusing leave to appeal, the Full Court found that the plaintiff had misunderstood what the primary judge had told her and that her complaints were otherwise without foundation: Paramasivam v Wheeler [2001] FCA 231 at [12]-[15] per Carr J; Hill J agreeing at [17]; Tamberlin J agreeing at [22].
35In each of the six matters, an application for special leave to appeal to the High Court was unsuccessful: Paramasivam v Aquilina [2002] HCA Trans 87; Paramasivam v Howard [2002] HCA Trans 88; Paramasivam v Karmel [2002] HCA Trans 89; Paramasivam v Kemp [2002] HCA Trans 90; Paramasivam v Sendt [2002] HCA Trans 91; Paramasivam v Wheeler [2002] HCA Trans 92. This first series of proceedings accounts for eight of the 26 cases identified by Mr Leitner.
36The plaintiff was also unsuccessful in bringing a claim of unlawful racial discrimination against the New South Wales Attorney General and the Director-General of the Attorney General's Department. She alleged that they had delayed in answering her correspondence, failed to provide specific answers to her questions about the legal system and refused to provide the legal services of the Attorney General or his Department to her in relation to her claims relating to her period of employment at the University of New South Wales. She stated: "the advice I received was for me to go to a private lawyer. I therefore failed to receive the service of the Attorney General - for which I have paid my taxes on an Equal Basis to any other member of the Public - be they in senior positions of Government or ordinary members of the Public": Paramasivam v Grant [2001] FCA 882 at [8]. She unsuccessfully appealed that decision to the Full Court: Paramasivam v Grant [2001] FCAFC 144.
37In 2002, the plaintiff lodged complaints with the Anti-Discrimination Board alleging that UNSW had discriminated against her on the basis of her sex and race in failing to employ her in various positions for which she had applied and in terminating her existing contract of services. The President declined her complaint and referred the matter to the Administrative Decisions Tribunal at her request. The plaintiff told the Tribunal that her complaint was based only on racial discrimination and was dealt with on that basis. The Tribunal found that her claims were lacking in substance and, in one instance, bordered "on being vexatious": Paramasivam v University of New South Wales [2002] NSWADT 202 at [34]. The plaintiff appealed to the Appeal Panel of the Administrative Decisions Tribunal and was unsuccessful on the basis that no error of law was established: Paramasivam v Vice Chancellor, University of New South Wales [2003] NSWADTAP 2.
38No cases are listed (or counted) by Mr Leitner in the period from 2003 to 2004. However, the litigious history from that time is summarised in the decision of Sully J in Paramasivam v University of New South Wales [2006] NSWSC 1189, a case arising later in this sequence.
39His Honour recorded that, during 2003-2004, the plaintiff was arrested and prosecuted on many occasions for breach of s 4(1) of the Inclosed Lands Protection Act 1901 in refusing to leave the grounds of the University. On one instance arising out of her arrest on 10 November 2003 the plaintiff was acquitted in the Local Court.
40In 2004, the plaintiff brought proceedings against an individual police officer and "the New South Wales Police" in the District Court seeking $750,000 including $166,666.67 for "solicitor's costs" and $580,796.33 "loss of goodwill" relating to her arrest on 10 November 2003 and subsequent acquittal. She reduced the claim to $750,000 so as to fall within the jurisdictional limit of the District Court. Sully J stated that it was "no easy thing to deduce" from the pleading what cause of action the plaintiff saw herself as pursuing. His Honour thought it would be fair to understand it as a claim for a remedy for wrongful arrest and "perhaps, for defamation": at [30]. The plaintiff eventually amended her statement of claim, significantly expanding the nature and detail of her grievances. At some point the State of New South Wales (the proper defendant to the claims) was substituted as defendant.
41Following a preliminary hearing, Gibson DCJ made orders evidently calculated to assist the plaintiff to plead the claim properly. The orders required the plaintiff to file a further amended statement of claim and were constructed in such a way that they nominated the heads of damages under which the plaintiff might claim relief and the detail to be particularised under each head. Following those orders, the plaintiff filed a further statement of claim from which it was possible to define "the nature of the cause of action which the plaintiff was intending to plead... [being] damages for defamation, for negligence, for malicious prosecution, for false imprisonment, for trespass to the person and for personal injury": at [40]. She sought, inter alia, declarations that she was an "owner" of the University and of the State of New South Wales, "reprimands" and "opportunities", and $6,800,000 representing $200,000 loss per annum for 34 years: at [43].
42The statement of claim was struck out. However, leave was granted to file a further amended statement of claim limited to any claim for wrongful arrest, false imprisonment and malicious prosecution arising out of her arrest on 10 November 2003. The plaintiff filed a further amended statement of claim which included a claim for damages for personal injury in the sum of $1,381,500 and loss of future earnings of $2,400,000. Her total claim was $4,122,496, again reduced for the purpose of falling within the jurisdictional limit of the District Court. The claim was dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules on the basis that it was "frivolous and vexatious", and that "no reasonable cause was actually disclosed... and [the proceedings were] an abuse of process": summarised in Paramasivam v University of New South Wales [2006] NSWSC 1189 at [53].
43The plaintiff then commenced relevantly similar proceedings in the Supreme Court in 2006 against the University, the State of New South Wales and the Commonwealth of Australia. The respondents sought variously to have the statement of claim struck out and the proceedings summarily dismissed or permanently stayed. The statement of claim included "FACTS 1 TO 488 Listed in Chronological Order ... the basis on which my claim is made." Sully J described the 488 "facts" as occupying 65 pages of close type arranged on each page into five columns headed from left to right, "No.", "Date", "From", "To", and "Subject matter". His Honour said:
"58 It is, I must confess, difficult to know where to begin in evaluating that document. It is simply unacceptable in this day and age, and as I have previously observed, simply to impose a document of that character upon any Court without some attempt at refinement of the material into a form which sorts out, so to speak, the wheat from the chaff, and provides a practical tool which can be given practical use in assessing the main pleading."
44His Honour then referred to the overriding purpose of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings, before continuing:
"67 It seems to me that any reasonable reader of the statement of claim and the two supporting "facts" documents would need to do no more than to consider them as I have been doing, in order to be comfortably satisfied that, at the very least, they should be struck out. I do not resile in that connection from anything that I earlier said about the ways in which a Court will do what it properly can to assist a litigant in person. It is, however, the case that with all the goodwill in the world there must come a time when, to put the matter simply and bluntly, enough is enough."
45Sully J concluded:
"72 It seems to me that there are several bases upon which it would be proper in the present case to make an order for the summary dismissal of the proceedings. I raised during the course of submissions and, in particular, with learned counsel for the second defendant, the differentiation between the concepts of "frivolous" and "vexatious", which concepts are normally joined together in the rules under the rubric "frivolous or vexatious". It seems to be intended that there will be recognised some difference between the two, but there does not seem to be any satisfactory exposition by relevant authority of what that difference might be.
73 I do not propose to characterise these proceedings as "frivolous". I do that out of what I intend to be a proper respect for the views which the plaintiff undoubtedly holds as a matter of deeply embedded conviction. One can say a lot of things about the course of litigation pursued by this plaintiff; but I do not think one can fairly say that her approach to it has been frivolous in the normal grammatical sense of being insufficiently serious or insufficiently purposeful.
74 I have no doubt, however, that the proceedings are properly to be characterised as "vexatious". To bring a fresh set of proceedings in this Court, after all of their historical antecedents in the District Court, is almost by definition vexatious; and especially so when the framing of the proceedings that have been commenced in this Court has, in truth, nothing to distinguish it in any substantive way from the tortuous District Court proceedings antecedent to the proceedings in this Court.
75 Further, I am comfortably of the view that this is a case in which the proceedings can be characterised properly as an abuse of the process of the Court. I wish to make it clear that I do not imply by that statement any view that the proceedings have been brought for some sinister or improper collateral purpose. The material which I have before me, whatever else might be said about it, cannot, I think, support an inference of that character.
76 My point is, rather, that there must come a time when it really does become, in the most literal grammatical sense, an abuse of the process of the Court to continue to use that process to regurgitate, on a sixth successive occasion, a pleading not substantially different from antecedent pleadings which have been held, in the clearest terms, to fall foul of the relevant provisions of the Civil Procedure Act and its rules."
46In January 2005 a further trespass charge brought by UNSW against the plaintiff was heard in the Local Court. The plaintiff lodged a complaint with the Human Rights and Equal Opportunity Commission (HREOC) in February 2005 alleging racial discrimination on the part of the Magistrate at that hearing. The complaint was terminated on the basis that the functions of a judicial officer were covered by the statutory provisions of judicial immunity: Judicial Officers Act 1986 s 44B. It was also noted that the complaint made no causal link between the plaintiff's treatment by the Magistrate and the plaintiff's Sri Lankan ethnic origin. As a result of the termination of the complaint the plaintiff commenced proceedings in the Federal Court which were transferred to the Federal Magistrates Court. Summary dismissal was granted on the basis that, "taking the applicant's contentions about what occurred ... at their highest, the doctrine of judicial immunity operates to protect the Magistrate from the legal redress sought by the applicant on the ground of an alleged unlawful discrimination": Paramasivam v O'Shane [2005] FMCA 1686 at [28], [50].
47The plaintiff made a further complaint to HREOC in relation to her time of employment at UNSW and her removal from the University grounds. When that complaint was terminated on relevantly similar grounds to her earlier complaints, she commenced proceedings in the Federal Court in 2006 claiming that UNSW had unlawfully discriminated against her on the basis of her race and ethnic origin. Her application stated that her claim was based on "employment-related bullying, harassment, persecution and alienation which resulted in arrests on four occasions": Paramasivam v University of New South Wales [2007] FCA 875 at [2]. She also sought a "Declaration of Right" that she was the owner of UNSW and asked the Court to "reprimand" UNSW for failing to "uphold the value and the discovery of Truth through Research and Education", the State of New South Wales for failing to "facilitate DUE PROCESS" and the federal government for ignoring her suffering and pain. She sought loss of past and future income in the amount of 3.2 million dollars. In entering summary judgment for UNSW, Tamberlin J found that the evidence "does not, even at its highest, provide any support for the view that [the plaintiff] has been treated unlawfully because of her race, colour or ethnicity. To the contrary, the evidence supports the conclusion that there was no causal relationship between the removal of the applicant from the University's premises and any contravention of her human rights or unlawful deprivation of equal opportunity." She unsuccessfully appealed that decision: Paramisivam v University of New South Wales [2007] FCAFC 176.
48The plaintiff also made a further complaint to HREOC in respect of actions of the New South Wales Police Force and its officers in removing her from UNSW on four occasions in 2003-2004. Her complaint was terminated as "lacking substance and misconceived". She again applied to the Federal Magistrates Court and, although she successfully resisted an application for summary dismissal, was subject to an order for security in the sum of $10,000 on the basis that she had "revealed on many occasions in her previous litigation a hostility to meeting orders for the payment of costs": Paramasivam v The State of New South Wales (No.2) [2007] FMCA 1033 at [28]. She appears to have provided the security, as her application was heard in the Federal Magistrates Court in 2007, but she was unsuccessful on the basis that she did not make out any of her complaints of unlawful discrimination: Paramasivam v State of New South Wales (No.3) [2008] FMCA 647.
49The proceedings summarised above may broadly be categorised the "UNSW proceedings". Three other categories of proceedings brought by the plaintiff can be identified from Mr Leitner's list.
50In 2001, the plaintiff commenced proceedings alleging that the managing director of the Australian Broadcasting Corporation and the Director of Corporate Affairs at the ABC had unlawfully discriminated against her "ethnic knowledge" based on what she perceived to be inadequate responses to her letters expressing views about a restructure of the ABC. HREOC terminated her complaint on the ground that it was lacking in substance. Her application to the Federal Court to review that decision was dismissed on the basis that "no reasonable cause of action of unlawful discrimination [was] shown": Paramasivam v Shier [2001] FCA 545 at [19]. The plaintiff unsuccessfully appealed to the Full Court against that decision: Paramasivam v Shier [2002] FCAFC 142.
51Also in 2001, the plaintiff commenced proceedings against her former supervisor following termination of her employment with Health Services Australia. Her case was that as "the objective circumstances [did] not establish a proper basis for terminating her services on the grounds of incompetence and ... in the absence of any other rational explanation, it should be inferred that the real reason for [her] dismissal was because of her racial characteristics": Paramasivam v Jurseszek [2001] FCA 704 at [8]. In dismissing her application, Gyles J noted (at [11]-[12]):
"There was no serious issue of credit arising in the case... the applicant is not alleging any objective act which was denied by the respondent... the applicant was not inventing circumstances showing racial discrimination. The applicant was drawing attention to a number of facts and arguing that an inference should be drawn from them. ... Whilst I do not doubt that the applicant has a genuine sense of grievance as to what happened and may attribute it to racial discrimination, in my opinion there was no racial discrimination operating in the circumstances of this case."
52Similar observations were made in many of the other judgments from this time.
53The plaintiff unsuccessfully appealed against the decision of Gyles J on the basis that his Honour "acted in breach of Article 5 (a) and e (v) of the International Convention on the Elimination of All Forms of Racial Discrimination... [in that he was] prejudiced against me because I am from a lower position in society compared to Ms Juraszek" and acting in breach of "s 13 (b) of the Racial Discrimination Act 1975 by providing me with his services on less favourable terms than his services to Ms Juraszek. I paid for the services of [the trial judge] when I paid my taxes. When accepting his job His Honour entered into contract with me to provide his Services on Equal basis as any other citizen": Paramasivam v Juraszek [2002] FCAFC 141 at [4].
54The plaintiff then commenced proceedings against the President of HREOC alleging that, in terminating her complaints against the managers of the ABC and her former supervisor at Health Services Australia, the President of the Commission had racially discriminated against her: "My expressions of corporate wisdom were not treated on the same basis as those [of] others in positions of power."
55In dismissing her application, Madgwick J found that there was "no shred of material to ground any inference that any failing by the respondent, or any aspect of the respondent's treatment of the applicant, was on account of the applicant's racial origins": Paramasivam v Tay [2001] FCA 758 at [25]. The plaintiff was unsuccessful in an appeal to the Full Court against that decision: Paramasivam v Tay [2002] FCAFC 143.
56A final, separate series of proceedings was commenced by the plaintiff in 2005. The plaintiff owned a unit with her husband in Coogee. She wrote to the Randwick City Council objecting to owners of other units in the building using them as serviced apartments. She was dissatisfied with the Council's response and complained that letters written in response to her from the Council were addressed only to her husband, which she believed constituted sexual discrimination. She lodged a complaint with HREOC which was terminated on the ground that it was "lacking in substance and misconceived": Paramasivam v Randwick City Council [2005] FCA 369 at [12].
57The plaintiff sought to file applications in the Federal Court Registry (Paramasivam v Randwick City Council [2005] FCA 369, at [14]-[17]) seeking a declaration that the Council had "committed unlawful discrimination and [an order] directing [the Council] not to repeat or continue such unlawful discrimination", orders that the Council restore the applicant's "special rights" or pay damages in "$500,000 to compensate for the fall in value that resulted due to not including my wisdom in making the said decision", and a declaration that the Council had unlawfully discriminated against the plaintiff. She also sought to file an accompanying application that alleged that one of the other unit owners had "brainwashed" the others and that the Council treated her less favourably than other males such as the other unit holder, who had "successfully used the Council to carry out his wishes". She stated that the discrimination may have been due to her sex or race, and that even if it was not conscious discrimination, it was "negligent".
58A registrar of the Federal Court sought and received a direction from the duty judge that the application was on its face an abuse of process of the Court or otherwise frivolous or vexatious. However, the registrar had attached to his memorandum to the duty judge a brief history of the proceedings the plaintiff had previously instituted in the Court. The plaintiff was informed that the registrar had been directed by the duty judge to refuse to accept her application on the basis that there was "no evidence showing that [the applicant] was treated less favourably by reason of sex or race" (at [21]).
59The applicant then complained to HREOC that the Federal Court was discriminating against her on the basis of her race. Her complaint was terminated and she sought judicial review in the Federal Court and a direction that the registrar accept her complaints "as if [she] was not known to them": Paramasivam v Randwick City Council [2005] FCA 369 at [26]. The Council sought an order dismissing or permanently staying her application for judicial review on the basis that no reasonable cause of action was disclosed or that it was frivolous or vexatious. The plaintiff had a minor success and her application was not dismissed on the basis that the inclusion of her litigation history in the memorandum to the duty judge made it possible that the judge made his direction based on that information, and not the face of her application. It was therefore impossible to characterise her case as "hopeless and therefore bound to fail": at [49]. The decisions of the registrar and the duty judge preventing the plaintiff from filing her applications were set aside: Paramasivam v Randwick City Council (No 2) [2005] FCA 508. No further case history relating to those proceedings was put before me.
60There are thus four categories or series of proceedings commenced by the plaintiff: the UNSW proceedings, the ABC proceedings, the HSA proceedings and the Randwick Council proceedings. All of the cases share similar characteristics: the plaintiff genuinely believed that she was discriminated against on the basis of her race or ethnic origin, and in one instance her sex; she then pursued every avenue of review and appeal available to her, often by way of making personal complaints against the individual decision-maker or judge, and in each instance represented herself. In almost all instances, her belief that she had been unlawfully discriminated against was said by the tribunal or court to be unfounded, although genuinely held. On at least two occasions proceedings instigated by the plaintiff were held to be vexatious or an abuse of process: Paramasivam v Unversity of New South Wales [2006] NSWSC 1189 at [53], [74]-[75].