Qasim v Davidson

Notices of Motion

1. The first defendant filed a Notice of Motion on 8 March 2022 which sought an order pursuant to r 13.4 of the UCPR that the proceedings be summarily dismissed or, alternatively, an order pursuant to r 14.28 of the UCPR that the Statement of Claim be struck out. The first defendant also sought consequential orders.
2. Within a week, the plaintiff had filed a Notice of Motion which sought orders dismissing the first defendant's Motion on the ground the Motion was vexatious and frivolous.
3. On 21 March 2022, the second defendant filed a Notice of Motion which sought similar relief to that set out in the first defendant's Notice of Motion.
4. I have today heard all three Motions and considered them together. I ordered that the evidence in respect of each Motion be taken to be evidence in respect of all Motions.

Legal Principles

1. It is convenient first to deal with the application for orders under r 13.4(1) of the UCPR. That rule provides: "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) 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. Last year in a decision A v The Department of Communities and Justice [2021] NSWSC 937, I summarised the relevant legal principles with respect to summary dismissal. It is convenient to reproduce those principles here: "[19] Before a court can summarily dismiss a claim, the Court must be persuaded that the case for the dismissal is very clear. [20] The principles guiding the exercise of the Court's power to order summary dismissal of proceedings are clear and of long-standing. The ordinary course of litigation ought generally be allowed to take place. That is because a litigant with a proper cause of action is entitled to expect that they will not be denied the opportunity, after taking advantage of the usual interlocutory processes, to put their case before the Court for judicial determination on the merits. [21] But this ordinary expectation is not unconstrained. The rules of Court permit proceedings to be summarily dismissed in appropriate circumstances. The rules exist to balance the litigant's ordinary expectations on the one hand, with the right of the opposing party on the other hand, not to be vexed by litigation in which a proper cause of action cannot be reasonably identified, or if the proceedings are vexatious, oppressive, or an abuse of process. [22] In 2016, in Pi v Zhou [2016] NSWCA 24, Gleeson JA said at [9]: 'It may be accepted that the power to order summary dismissal is one that should be exercised with great care and not unless it was clear that there is no real question to be tried. The test to be applied has been variously expressed, including: 'So obviously untenable that it cannot possibly succeed'; and 'manifestly groundless', but the underlying point is that there must be a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial or a hearing in the ordinary way: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]-[25] (French CJ and Gummow J).' "
3. In considering whether to order summary dismissal, the Court needs to exercise caution and to be satisfied that the certainty of the outcome of the litigation, rather than merely an assessment of prospects of success, has been demonstrated by an applicant: see Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [30].
4. In considering my decision I will apply these principals.

Evidence on the Motions

1. In order to understand the plaintiff's alleged causes of action, it is necessary, given that the plaintiff has relied upon a Summons, to consider the material set out in her various affidavits. The plaintiff included in her court book and read in court an affidavit filed on 28 March 2022 which had been filed in different proceedings in this Court. Those proceedings were numbered 2021/256942 and were the subject of several judgments by Davies J: see, e.g., Qasim v Bird [2022] NSWSC 258.
2. The affidavit contains complaints regarding various members of the judiciary and members of NCAT. In a sense, it alleges breaches of codes of conduct. For some reason it annexes the Commonwealth Administrative Review Council's Guide to Standards of Conduct for Tribunal Members dated August 2009. The plaintiff's affidavit contains such material as: "Codes of Conduct and Expert Code have been breached by tribunals 2014‑2020 thus encouraging lawlessness and the misapplication of the law from sheer ignorance despite the plaintiff's pleas for accountability and transparency throughout."
3. The affidavit goes back many, many years and sets out allegations about conduct of tribunal members. So far as one can tell, the complaints relate to proceedings taken against the plaintiff in NCAT with respect to her professional conduct and status. They simply have nothing whatsoever to do with this case. Quite what the Guide to Standards of Conduct for Tribunal Members has to do with respect to a State tribunal is completely unknown. The contents of this affidavit do not identify or articulate any factual basis for a cause of action against either the first or the second defendants in these proceedings.
4. The plaintiff relies, particularly as against the first defendant, on an affidavit affirmed by her on 8 April 2022. In it the plaintiff complains of "ridiculous" and "low class propositions" put in the affidavits filed by the first defendant. She asserts that the first defendant has engaged in very odd behaviour, that the first defendant readily took money after providing a false reference and that the first defendant was always hostile towards the plaintiff's tenants.
5. Various annexures are attached to this affidavit, consisting of more emails and the so-called reference by the first defendant (which has been copied from the Summons) and documents indicating a Work Order with respect to window cleaning at the premises and invoice sent by the first defendant to the plaintiff for window cleaning.
6. In particular, the affidavit includes an annexure by way of an email from the plaintiff to NCAT complaining of the first defendants "scam reference" and includes allegations that the first defendant, "interfered in the contract between the owners and occupiers", "engaged in quite underhanded behaviour" and failed to fulfil an obligation to clean windows. There is nothing at all in this affidavit which identifies any fact or facts which may ground any cause of action against either the first or the second defendants.
7. The plaintiff also relies on her affidavit affirmed on 11 April 2022 with respect to her claim against the second defendant. In it she claims that the second defendant lied about the nomination of an independent lawyer by the President of the New South Wales Law Society to act for the Owners Corporation of the Meridian Resort, of which the plaintiff is a member.
8. I have to say that most of the affidavit, if not all of it, makes no sense at all. Various emails, including some between her and the second defendant, are annexed to it but they do not provide any basis for articulating a cause of action for damages against the second defendant.
9. The first defendant relies on his affidavit affirmed 8 March 2022. In it he deposes to the fact that these proceedings are the fourth time in less than 12 months that he has been involved in litigation brought by the plaintiff. He says that he is concerned that the plaintiff is suing him for no reason at all, vexatiously and without proper cause. He notes that he has an order for costs in his favour dated 21 December 2021 in the total sum of $14,267.12 and which was certified by the Manager, Costs Assessments, on 10 February 2022 but which remains outstanding.
10. The first defendant notes in his affidavit that he was at one time the caretaker or manager of a strata complex at the Meridian Resort in which the plaintiff owned at least one, if not more, properties. He says he has had no contractual or business relationship with the plaintiff. He says he has had nothing to do with the plaintiff. He notes that he is no longer the caretaker or manager of the complex and no longer lives there. He notes he has no association with the plaintiff. He denies the various allegations, to the extent that he can understand them. He notes that the proceedings are causing he and his wife undue stress and anxiety and are a significant financial burden.
11. The second defendant relies on her affidavit of 23 March 2022, where she deposes that she has been the Secretary of Owners Corporation SP61034 since August 2016. This is the Owners Corporation for the Meridian Beach Resort in Old Bar. She notes that she has no other relationship with the plaintiff other than in her role as the Secretary of the Owners Corporation.
12. She notes that the plaintiff has commenced various legal actions in this Court and NCAT relating to the Owners Corporation. This is the first time she has been the subject of a claim in her personal name. She draws attention to the fact that it is not at all apparent to her what it is she is said to have done which may give rise to a claim in damages in favour of the plaintiff.
13. The second defendant annexes several emails between herself and the plaintiff. In these emails she makes it plain that the various steps taken, upon which the plaintiff seems to rely as part of a cause of action against the second defendant, were steps agreed to by the members of the Owners Corporation present at an Extraordinary General Meeting in April 2017. All she has done is to act in her capacity as the Secretary to implement such decisions. The affidavit material filed by the second defendant provides some background of the allegations made by the plaintiff. She denies those allegations to the extent that they can be understood in the light of that background.

Submissions

1. The plaintiff's submissions, which were both in writing and made orally today, are difficult to follow. The plaintiff claims that the first defendant, Mr Davidson, could have apologised for everything that he did and that she would have walked away and left him alone. She said that he and the second defendant were "not nice people, their behaviour was not civil". She said it was "not nice for them to do what they did and an apology should be made". It was difficult to follow these oral submissions as they made no sense to me.
2. She also described the behaviour of the first and second defendants as "undemocratic, un-Australian", and says "they should not be doing what they have done". Even accepting that all of these descriptions are true, and I do not for a moment accept that, they do not articulate a cause of action. Nor do they describe any basis whatsoever for bringing proceedings in this Court against either the first or the second defendant.
3. When the plaintiff was asked to identify, with precision, what her cause of action was, she said that it was "underhandedness". She also said that it was "cartel conduct" and "misleading behaviour". She described her loss as being the cost to her of retaining a firm of solicitors. It must be said that, to the extent that one can make any sense of the Summons, there is no claim for pure economic loss articulated in it.
4. The plaintiff's submissions in writing are contained within one page. She says that the first defendant has caused enormous distress to her and her tenants and their families over many years and that "he has misapplied the position as the on-site manager. … He has caused disharmony to many people".
5. She also states that she won't consent to the matter being moved to the Local Court, and "a proper hearing in the Supreme Court is warranted and justified".
6. She states that "the seriousness of the damage caused by the defendant requires consideration by the Supreme Court" and, she continues, she will not entertain any threats now or in the future.
7. She has included in her court book a copy of submissions filed in another matter. They do not appear to have any relevance at all to these proceedings, but rather seem to contain nonsensical allegations that partly refer to the appointment of lawyers at the request of the Owners Corporation. The submissions include an annexure email regarding that appointment from the Law Society. I could not make head nor tail of the plaintiff's submissions other than to the extent which I have described just now.
8. The first defendant submitted that the Court would be satisfied that there was no triable issue pleaded and that it was manifestly evident on the face of the Summons that there was no such triable issue. He submitted that the Court would be persuaded that the Summons was incomprehensible at best, and that summary dismissal should follow. For reasons which can be dealt with in due course, the first defendant seeks his costs on an indemnity basis.
9. The second defendant submitted that the Summons appeared to contain no matter of substance pleaded or sought as against the second defendant. She submitted the pleading does not inform the second defendant as to what it is she is alleged to have done at all. She submitted that the pleading is embarrassing in that it is unintelligible, ambiguous and so imprecise in its identification of material factual allegations as to deprive the second defendant of proper notice of the real substance of the claim. The second defendant also submitted that the Summons does not contain material or factual allegations sufficient to constitute a cause of action.

Discernment

1. I turn now to considering the submissions made by all parties. I accept the submissions of the first and second defendants, that the Summons is wholly unintelligible. The affidavits of the plaintiff relied upon in support of the Summons to which one might turn to identify the cause of action are nothing more than gibberish, in my view. The submissions of the plaintiff, both orally and in writing, do not enlighten anyone as to what the real cause of action is.
2. "Underhandedness" is not a cause of action which is known to the law. Similarly, as between individuals as this case is brought, the term "cartel conduct" is meaningless and does not constitute, in the circumstances here, any cause of action for damages. Finally, adding the phrase "misleading conduct" as a throw-away line does not, without more, assist the plaintiff. She does not identify or articulate any basis either as a statutory cause of action or one at common law for misleading conduct or misleading behaviour.
3. As none of the causes of action are articulated and none of the causes of action are supported by any facts, no reasonable cause of action is disclosed, with the result that the proceedings are obviously vexatious and amount to an abuse of the process of the Court. The Summons must be dismissed.
4. The first defendant, by letter dated 31 January 2022, made an offer pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 333 to the plaintiff to resolve the proceedings on the basis that he pay his own costs up to that date.
5. The result obtained on these Motions is less advantageous to the plaintiff than that contained in the first defendant's letter of offer. In those circumstances, it is appropriate that the plaintiff pay the first defendant's costs on an indemnity basis as and from 31 January 2022. There was no similar letter sent by the second defendant. She should have her costs on the usual basis.

Orders

1. I make the following orders: 1. Order pursuant to rule 13.4 of the Uniform Civil Procedure Rule 2005 that the plaintiff's Summons filed on 17 January 2022 be dismissed. 2. Otherwise dismiss the Notices of Motion filed by the first defendant on 8 March 2022, by the plaintiff on 15 March 2022 and by the second defendant on 21 March 2022. 3. Order that the plaintiff pay the first defendant's costs of the proceedings on an indemnity basis. 4. Order that the plaintiff pay the second defendant's costs of the proceedings.

Additional Comment

1. I wish to add the following by way of additional comment and separate from the judgment in this matter. As is apparent from the many judgments of this Court and NCAT, either at first instance or by its Appeal Panel, many of which were not admitted on the hearing of these proceedings, but which are available on the Caselaw website, the plaintiff is in the habit of commencing proceedings which have no basis.
2. She tosses allegations around against many individuals, including the two defendants here, without regard to whether or not there is any proper legal cause of action. It is as though she covers a wide range of defendants with the confetti of invented causes of action, none of them have any merit. They all constitute an abuse of the process of either this Court or NCAT.
3. I direct that the papers in these proceedings be provided to the Prothonotary for her consideration as to whether all of the judgments involving the plaintiff, together with documents which she has filed ought be drawn to the attention of the Attorney-General of New South Wales for the purpose of considering whether proceedings should be brought against the plaintiff pursuant to the Vexatious Proceedings Act 2008.

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: 15 August 2022