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[2014] NSWSC 560
Supreme Court of NSW
2014-04-01
Rothman J
Original judgment source is linked above.
Judgment 1HIS HONOUR: By motion, notice of which was filed and served on 20 February 2014, the defendant, Qantas Airways Limited (Qantas), applies to strike out the summons of Rita Cameron, filed 5 December 2013. Qantas also applies to set aside a subpoena of 14 February 2014 and seeks orders against Ms Cameron under the Vexatious Proceedings Act 2008 (NSW). 2Ms Cameron's summons details the type of claim as one relating to "personal injuries... industrial accidental; personal injuries...tort; breach of duty of care...aggravated damages; and Corporations Law-misleading/deceptive conduct; breach of court order" and relies upon what is alleged to be the inherent power of the Court.
Facts and Chronology 3I will detail some of the history of this litigation during the course of these reasons for judgment. Essentially, Ms Cameron was injured at work. She was an employee of Qantas. Ms Cameron sued for negligence in the District Court of New South Wales (the Original Proceedings). The suit was settled and consent orders entered (the Settlement). 4Ms Cameron feels, notwithstanding the apparent consent, that the Settlement was insufficient, and, as at this time, maintains that she needs medical attention and cannot afford it. Ms Cameron claims that the medical attention arises from the injury at work. The Settlement entered, without admissions, a "verdict and judgment" for $940,000.00 with each party to bear her or its own costs. There were Workers' Compensation, Medicare and Centrelink payments to be repaid. Ms Cameron also had to meet her legal fees. 5The Settlement was reached and signed on 1 February 2008 and the judgment entered on that date. On 26 February 2008, Ms Cameron purported to notify Qantas' solicitor that she revoked the authority (and all authorities) to the solicitor previously representing her and, in particular, the authority to send any monies to her previous solicitor arising from the Settlement. Ms Cameron is proceeding against the solicitor in other proceedings. 6The settlement monies were paid into court pursuant to orders of Johnstone DCJ on an application in the nature of interpleader proceedings, initiated by Qantas. The orders issued on 6 June 2008 (the June Orders). 7The June Orders required payment of an amount of $753,909.71 into court, being the Settlement sum less previously mentioned deductions and less an amount of $66,906.89 that the June Orders required Qantas to pay Ms Cameron's previous solicitor in respect of costs or fees. 8In fact, Qantas paid $820,808.60 into court and also paid the prescribed amount to Ms Cameron's solicitor. The payment into court occurred on 17 June 2008. 9On 10 October 2008, Ms Cameron filed notice of a motion in the District Court seeking, amongst other remedies, orders setting aside the Settlement. 10On 14 October 2008, Ms Cameron made an application to the Court of Appeal for leave to appeal from the consent judgment that arose from the Settlement. The Court of Appeal, ex tempore, dismissed the application with costs. In the course of the ex tempore reasons for judgment, Hodgson JA (with whom Macfarlan JA agreed) commented: "...None of the matters raised by the applicant could justify the setting aside by an appellate court of the consent orders made in this case. The one matter that might possibly justify setting aside the consent orders is the allegation that the consent was the result of undue influence, or perhaps other unfair conduct or pressure brought to bear on her. However, if that allegation were to be pressed, it would have to be in proceedings brought before a single judge in a position to hear evidence and make a decision as to whether a claim that the settlement should be set aside is made out. The need for proceedings of that kind in this sort of case is referred to in the case of Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691." 11On 24 October 2008, the motion, notice of which was filed by Ms Cameron in the District Court, was listed for hearing before the Registrar. Ms Cameron sought to have the motion dismissed. The Registrar, complying with that request from the applicant on the motion, issued orders dismissing the motion and ordered Ms Cameron to pay the costs of Qantas and other parties to the motion. 12On 11 December 2008, Ms Cameron filed another notice of motion in the District Court which sought to set aside the Settlement in terms which provided: "To have the forced settlement made on 1 February 2008 on my behalf by my solicitor and barrister under extreme pressure to be set aside". 13The motion was listed for hearing before McLoughlin SC DCJ on 9 April 2009 and adjourned, part heard, to 14 April 2009. Ms Cameron was unrepresented. 14On 14 April 2009, McLoughlin DCJ issued judgment and orders. These orders were made after Ms Cameron sought leave, which was granted, to cross-examine her solicitor Stephen Walker, her barrister Stuart Moffit and the solicitor for Qantas. The evidence was adduced before his Honour. 15At the conclusion of the hearing his Honour issued reasons, in which his Honour found that there was no duress, that there were lengthy and protracted negotiations and that instructions that resulted in the Settlement emanated from the plaintiff in circumstances where the effect of such offers was explained to Ms Cameron. 16His Honour proceeded to judgment on the basis that duress would entitle a person in Ms Cameron's position to have consent judgment set aside, without deciding that duress was a basis for setting aside judgment. His Honour held there was no duress and dismissed the motion and, because of the financial position of Ms Cameron and, presumably, a degree of compassion, his Honour ordered half costs only. 17On 5 May 2009, Ms Cameron filed a Notice of Intention to Appeal the decision of McLoughlin SC DCJ in the Court of Appeal. The application for leave to appeal was heard on 14 October 2009. The appeal was resolved by consent, the orders of McLoughlin SC DCJ were set aside and the matter remitted to the District Court for rehearing. Qantas was ordered to pay Ms Cameron's disbursements (she being self-represented) in relation to the application for leave to appeal. 18On 28 January 2010, Ms Cameron's motion, on remitter, was listed for directions before Johnstone DCJ. His Honour struck out the motion for irregularity. Ms Cameron has not sought to appeal that judgment or sought application for leave to appeal. 19On 13 May 2010, Ms Cameron commenced proceedings in the Supreme Court by filing a Statement of Claim seeking damages of $8,000,000.00 from Qantas and $2,000,000.00 from her previous lawyers. Qantas moves to strike out the Statement of Claim on the grounds that it discloses no reasonable cause of action; has a tendency to cause prejudice and embarrassment; and/or is an abuse of process. 20On 13 July 2010, Ms Cameron sought to file an Amended Statement of Claim and on 6 August 2010 Qantas' motion was listed for hearing before this Court. On 13 August 2010, Schmidt J granted Ms Cameron leave to file an Amended Statement of Claim, which she did on 22 September 2010. 21A further motion, notice of which had been filed, by Qantas sought to strike out the Amended Statement of Claim, filed pursuant to leave granted by Schmidt J. The motion was listed for hearing before Latham J on 21 February 2011. 22On 25 February 2011, Latham J struck out the newly filed Amended Statement of Claim, filed by Ms Cameron. Her Honour described the history of the matter as "long and unsatisfactory". Her Honour recited some of the history of the matter and remarked that "regrettably, nothing that passed between [Schmidt J] and [Ms Cameron]...appears to be reflected in the Amended Statement of Claim". Her Honour remarked that the purpose of the proceedings was, and is, to set aside the Settlement and it was impermissible for Ms Cameron to seek to re-agitate issues that had been determined by the judgment in the District Court. Her Honour struck out the proceedings against Qantas and against the second defendant (the former solicitor) and refused leave for Ms Cameron to replead. 23On 16 August 2010, Ms Cameron filed a summons in this Court seeking to have the District Court proceedings transferred to the Supreme Court and on 24 September 2010, the Registrar made an order transferring the District Court proceedings, as requested. 24Ms Cameron sought leave to appeal the decision of Latham J, which was listed for hearing before the Court of Appeal on 26 August 2011. Leave to appeal was not granted and the application for leave was dismissed. 25The Court of Appeal (Macfarlan JA, with whom Whealy JA agreed) recited some comments of Latham J, in which her Honour described the Amended Statement of Claim as legally embarrassing, unintelligible, ambiguous, vague and too general and the defendants would have inadequate notice of the real substance of Ms Cameron's claim. The comments of Latham J were to the effect that Ms Cameron had been given every reasonable indulgence by the courts (and by the defendants). The Court of Appeal remarked that no rational basis for a conclusion that Latham J was in error had been put before it and, given the significant delay and need for leave to file out of time, together with the consequential prejudice to the defendants, it refused leave to appeal and dismissed Ms Cameron's application therefor. 26Against that judgment of the Court of Appeal, Ms Cameron filed an application for special leave to appeal to the High Court of Australia. The application was filed 23 September 2011 and on 9 February 2012, the High Court dismissed Ms Cameron's application for special leave. 27Meanwhile, on 15 February 2011, Ms Cameron filed a notice of motion in this Court seeking payment out of some of the monies held in court and other orders of a substantive nature. The notice of motion was heard by Harrison J on 22 June 2011. An order was made for payment out of part of the monies paid into court. The balance of the motion was heard on 16 September 2011. 28On 23 September 2011, Harrison J issued orders dismissing the motion. His Honour traversed the sorry history of the justiciable issues between the parties and recited some parts of the earlier judgments to which I have referred above and an exchange in transcript relating to the consequence of proceedings on Ms Cameron's motion. His Honour made the following comment: "[7] The orders that Ms Cameron still seeks are clearly in respect of matters that were long ago subsumed in the original settlement. As unpalatable as it may be for Ms Cameron to accept, the case is over. It has been for some time. Ms Cameron must in my view sooner rather than later come to terms with this reality lest the balance of any monies that she can yet enjoy also disappears on whimsical projects with no real or meaningful prospect of a return. Ms Cameron unfortunately labours without the benefit of legal advice and shows no sign in those circumstances of coming to any realistic appreciation of the self-destructive course of her unremitting endeavours. [8] I can see no basis for the making of any orders in her favour. Her notice of motion is hopeless and must be dismissed. It may be that her opponents will form the view that the costs of her ill-advised application are no longer worth pursuing. I will however obviously hear the parties on the costs of this application if called upon to do so" (Cameron v Qantas Airways Limited [2011] NSWSC 1138). 29On 9 December 2011, Harrison J made further orders requiring the plaintiff to pay Qantas' costs of certain aspects of these proceedings. Those costs were assessed by a Costs Assessor, who certified the amount of $75,755.82. Notwithstanding the favourable costs assessment, Qantas chose ex gratia not to enforce its costs order. I applaud that aspect of Qantas' conduct. 30The subpoena of 17 February 2014 and the summons in matter 2013/366854 filed 5 December 2013 seeks re-agitation of the damages arising from the personal injuries suffered. Any right to those merged in the orders of the District Court made as a result of the Settlement. Those orders are extant. 31As a consequence, nothing in the summons can be agitated, or agitated in the manner sought against Qantas. The plaintiff, Ms Cameron, cannot re-agitate these issues in the face of orders of the District Court. Qantas does not need to defend the proceedings or its conduct again.
Consideration of Orders 32As may be obvious from earlier statements in these reasons for judgment, the summons filed on 5 December 2013 does not refer to a cause of action by which it is said orders should issue setting aside the judgment of 1 February 2008 (being the judgment based upon the Settlement). The summons seeks to re-agitate personal injuries by way of industrial accident, industrial shock, professional injuries caused, it seems, by professional negligence, personal injuries caused by other torts, aggravated damages for breach of duty of care and misleading or deceptive conduct under the Corporations Law. 33Ms Cameron has now dissipated significant amounts of the monies required to be paid under the Settlement chasing more money because of her perception that the Settlement was insufficient. 34As earlier stated, Ms Cameron considers she is now in need of further medical attention arising from the personal injuries to which the Original Proceedings related. Claims for Workers' Compensation that result in an award of damages in negligence have the effect of disentitling the plaintiff and or claimant to any further Workers' Compensation Payments and to the rights, under the Workers' Compensation Legislation, for the payment of medical expenses. Once damages are assessed and awarded, any future medical expenses must be paid out of those damages. 35Plainly, these additional proceedings are an abuse of process. They seek to agitate, one more time, matters that have been the subject of judgment in this Court, being the validity of the Settlement and attempts to set it aside for duress and/or "as a matter of justice". 36Ms Cameron has no reasonable prospects of success in her application and the summons, being a repeat of similar causes of action previously sought to be agitated and previously dismissed, is legally embarrassing. Further, the proceedings are now significantly out of time and/or the commencement of these proceedings involve significant delay from the time at which the Settlement was made, namely, 1 February 2008. 37The proceedings are an abuse of the process of the Court. Orders will be made striking out the proceedings.
Vexatious Litigant Orders 38I turn then to the application made under the Vexatious Proceedings Act. "Vexatious Proceedings" is a term defined to include proceedings that are an abuse of the process of the court; proceedings instituted to harass or annoy, to cause delay or detriment or for another wrongful purpose; proceedings instituted or pursued without reasonable ground; and proceedings conducted in a way so as to harass or annoy, cause delay or detriment or achieve another wrongful purpose. 39I do not consider that Ms Cameron has instituted the proceedings for the purpose of harassing or annoying or deliberately causing delay or detriment or for "another wrongful purpose", but the proceedings are an abuse of the process of the Court, they are or have been instituted and pursued without reasonable ground and they have been conducted in a way that harasses or annoys, causes delay or detriment. 40Under s 8 of the Vexatious Proceedings Act, this Court may make an order in relation to Ms Cameron if she has "frequently instituted or conducted vexatious proceedings". 41For abundant caution, I note that if an order were made under s 8 of the Vexatious Proceedings Act, Ms Cameron would not be entitled to institute further proceedings, subject to the terms of the order. Qantas seeks an order only in relation to it. Any order that issues from this Court will be so confined. 42The effect of such an order would be that Ms Cameron, if she were desirous of instituting further proceedings, would require leave of the Court to institute the proceedings: see s 14 of the Vexatious Proceedings Act. 43Qantas submits that, looking at the chronology and the number and frequency of the proceedings, the Court would be satisfied that Ms Cameron has engaged in the frequent institution or conduct of vexatious proceedings. 44Vexatious proceedings, the definition of which is set out above, may exist notwithstanding a genuine personal intention or motive other than harassing or annoying: see Attorney General v Tareq Altaranesi [2013] NSWSC 63 at [17]. 45Whether proceedings are vexatious because they are commenced or conducted without reasonable ground is a matter that must be assessed objectively: see Altaranesi, supra at [19]. 46Ultimately, unless orders are sought particularly related to sub-paragraph 6(b) of the Vexatious Proceedings Act, the subjective intention of the respondent to an application for such orders is irrelevant: see Pascoe v Liprini [2011] NSWSC 1484 at [10]; Attorney General (NSW) v Chan [2011] NSWSC 1315 at [33]; Altaranesi, supra, at [20]; Attorney General (NSW) v Viavattene [2014] NSWSC 327. With respect to Bellew J, I accept his Honour's summary of the principles outlined in Viavattene, supra, at [155]. 47As his Honour points out, the term "frequently" where used in s 6 of the Vexatious Proceedings Act must be viewed relatively and in the context of the entire litigation. In this case, Ms Cameron is, in my view, instituting the proceedings frequently and persistently, such as to bring proceedings against Qantas, relating to the personal injury claim and arising out of its settlement, within the definition of vexatious. Ms Cameron, to the extent that she is either instituting or conducting proceedings against Qantas, relating to that or those subject matter or matters, is abusing the processes of the Court, harassing and annoying, and doing so without a proper basis in law. 48Lastly, I note that Ms Cameron does not seem to pay any regard whatsoever to the various judgments of the courts and acts as if those judgments had never been made and that, notwithstanding those judgments, she was free to re-agitate the matters associated with her original personal injury and/or seek to set aside the Settlement thereof.
Conclusion 49The circumstances set out above satisfy me that an order should be made under the Vexatious Proceedings Act. The order should be limited. That which is vexatious is a proceeding against Qantas, relating to Ms Cameron's injury whilst an employee of Qantas and the binding nature of the orders made as a consequence of the settlement of proceedings relating to those personal injuries. 50For the foregoing reasons, the Court makes the following orders: (i)The summons in matter 2013/366854 struck out; (ii)Pursuant to s 8(7)(c) and s 8(8)(c) of the Vexatious Proceedings Act 2008, Rita Cameron is prohibited, without leave of the Court under s 14 of the Vexatious Proceedings Act 2008, from instituting or conducting proceedings in the State of New South Wales against Qantas Airways Limited or Qantas Limited, or any related corporation, relating to any injury said to be suffered by her in the course of her employment at Qantas Airways Limited and/or Qantas Limited and/or the status or efficaciousness of any judgment or order of the District Court of New South Wales or the Supreme Court of New South Wales relating to any such personal injury, or the settlement thereof; (iii)The plaintiff shall pay the defendant's costs of and incidental to the proceedings, including the costs of the motion, notice of which was filed 20 February 2014; (iv)Otherwise, proceedings dismissed.
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: 13 May 2014
Rita Cameron
Qantas Airways