Seidler v University of New South Wales [2011] FCA 1330 | Case summary

Kathryn Seidler not continue with any proceeding commenced by her in this Court without the leave of the Court. 2. Kathryn Seidler not commence any proceeding in this Court without the leave of the Court. 3. These orders be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1298 of 2011

REASONS FOR JUDGMENT 1 The immediate question is whether an order should be made preventing the applicant, Ms Seidler, from commencing any fresh, or continuing with any present, proceedings in this Court. That question arises under r 6.02 of the Federal Court Rules which empowers the Court to make an order having that effect where it is satisfied, inter alia, that a litigant has started 'a vexatious proceeding'. On 6 October 2011 I dismissed applications by Ms Seidler for leave to appeal from orders previously made by Cowdroy J on 9 June 2011 and by Flick J on 26 June 2011: Seidler v University of New South Wales [2011] FCA 1156. In that case I determined that the proceedings the subject of the leave applications (which were commenced by Ms Seidler) were 'plain abuses of process' (at [11]). This was not a new conclusion. Cowdroy J had summarily disposed of Ms Seidler's first set of proceedings in this Court on bases which included that they were an abuse of process: Seidler v The University of New South Wales [2011] FCA 640 at [84]. They were an abuse of process because their subject matter had already been dealt with and rejected by Nicholls FM in Seidler v University of New South Wales [2010] FMCA 887 and his Honour's orders had not been disturbed on appeal. In that case, Ms Seidler had sought to set aside a deed of release under which she had agreed, in return for a payment of money, that she would release the first respondent (the 'University') from any and all claims arising from her employment with and study at the University, including her claims in relation to a repetitive strain injury to her arms and wrists said to have been caused by her working conditions at the University. For completeness, it should be noted that there had also been claims by Ms Seidler that she had been the victim of discrimination and unfair treatment at the hands of the University. 2 Nicholls FM rejected Ms Seidler's case that this deed should be set aside. Ms Seidler did not, at that time, appeal. When she subsequently commenced the proceedings which were heard by Cowdroy J and in which she sought to set aside the same deed of release it was obvious that what was involved was an abuse of process. The subsequent pursuit of the application for leave to appeal the summary disposal orders made by Cowdroy J was itself a species of the same abuse. 3 In addition to the proceedings in which Ms Seidler had failed before Cowdroy J on 9 June 2011, she had also commenced a second set of proceedings which came before Flick J. In these she sought effectively the same relief as had been sought from Cowdroy J and made largely identical allegations. This moved Flick J to observe that it 'would be difficult to envisage a more blatant abuse of process': Seidler v University of New South Wales [2011] FCA 830 at [34]. Consequently his Honour gave summary judgment for the respondents. In turn, on Ms Seidler's application for leave to appeal, I reached the same conclusion together with the additional finding that the application for leave to appeal was itself a species of the same abuse of process. 4 Subsequently, Ms Seidler also filed an application for an extension of time and leave to appeal from the decision of Nicholls FM. On 18 November 2011, that application was dismissed by Stone J who noted: 'In addition the present application is an abuse of the processes of the Court': Seidler v University of New South Wales [2011] FCA 1321 at [32]. 5 The power in r 6.02 is enlivened, as I have said, where a litigant commences a vexatious proceeding. That expression is defined Schedule 1 to the Federal Court Rules in these terms: vexatious proceeding means: (a) a proceeding that is an abuse of process of the Court; or (b) a proceeding started or conducted in a way to harass or annoy, cause delay or detriment, or for any other wrongful purpose; or (c) a proceeding started or pursued without any reasonable ground; or (d) a proceeding of the kind mentioned in paragraph (a), (b) or (c) that has been started in any other Australian court. 6 The power in this case is enlivened. Each of the proceedings before Cowdroy J, Flick J and Stone J were abuses of process as were the two applications for leave to appeal before me. 7 The power in r 6.02 is discretionary although this is not obvious from its terms: 6.02 Vexatious proceedings If a person starts a vexatious proceeding against another person in the Court, the respondent, the Attorney-General of the Commonwealth or of a State or Territory, the Registrar or an interested person may apply to the Court for an order that the person must not continue the proceeding or start or continue any other proceeding in the Court, against that person or any other person, without the leave of the Court. 8 Indeed, r 6.02 does not expressly authorise the Court to do anything but instead merely permits the making of an application. However, r 1.41 provides that: 1.41 Other orders that may be made If a party makes an application, the Court may: (a) grant the order sought; or (b) refuse to grant the order sought; or (c) make a different order. 9 This indicates by use of the word 'may' that, unless there is some other indication in the Federal Court Rules themselves, the Court's power to dispose of applications under the rules will, in general, be discretionary. 10 Rule 6.02 commenced on 1 August 2011 and, so far as my researches have revealed, has not yet been the subject of any consideration by a judge of this Court. It is to be compared with O 21 r 1(1) of the former Federal Court Rules 1979 which was in these terms: Vexatious litigant (1) If a person institutes a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order: (a) that any proceeding instituted by the person may not be continued without leave of the Court; and (b) that the person may not institute a proceeding without leave of the Court. 11 One thing which is immediately apparent is that the former rule required, for its enlivenment, a litigant who commenced vexatious proceedings 'habitually, persistently and without reasonable grounds'. Over a long period of time that expression was the subject of considerable judicial exegesis one recent example of which is Stone J's decision in Soden v Kowalski [2011] FCA 318. 12 That requirement, whatever its content, no longer appears as a jurisdictional prerequisite to the making of an order under the new rule. The power in r 6.02 arises simply where a vexatious proceeding, as defined, is commenced. 13 The discretion which arises is unconfined other than by the subject matter, purpose and scope of the Federal Court Rules: cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. It would be a mistake to seek to put a gloss on the terms of the rule. It is relevant, however, to observe that r 6.02 is headed 'Vexatious Proceedings' and is itself found in a part headed 'Court Supervision of parties and other persons'. This tends to suggest that the function conferred, like that of the former O 21 r 1, is a protective one; designed not to punish but to shield other litigants and the Court itself from being adversely affected by wasteful and misconceived processes: see Jones v Skyring (1992) 109 ALR 303 at 312 per Toohey J. Although the definition of a 'vexatious proceeding' is broad enough to encompass every proceeding which can be characterised as an abuse of process, I do not think that it was intended that the power might be exercised on every occasion that an abuse of process is identified as having occurred. What is called for instead is a commonsense and practical assessment of whether the litigant in question poses such a risk to the proper and orderly administration of justice that a curtailment of the important civil right to litigate is warranted. The circumstances in which that serious conclusion may be reached are myriad but at least one reliable marker may be a refusal on the part of a litigant to accept the principle of finality of litigation. It is only by a wilful neglect of that significant principal that a litigant who has a lost a case on more than one occasion can continue in his or her litigious endeavours. Very often, therefore, a refusal to accept the outcome of a case by the commencement of fresh proceedings initiated as if the original, but unsuccessful, proceedings had never occurred is an indicator that protective intervention by the Court may be necessary. 14 Those remarks are pertinent to the present cases. The abuses identified by Cowdroy and Flick JJ were of that precise character. In themselves they indicated the presence of a significant risk that Ms Seidler posed a threat to the orderly conduct of this Court's business as well of the respondents' own affairs. Those concerns proved well-founded by the events which followed my first judgment of 6 October 2011 of which it is now necessary to say something. In that judgment I dismissed Ms Seidler's applications for leave to appeal with indemnity costs which I also permitted the respondents to have taxed forthwith. At the same time I stood over to 15 November 2011 the question of whether I should make an order preventing Ms Seidler from further litigation pursuant to r 1.40 (which authorises the Court to move ex mero motu). Between 6 October 2011 and 15 November 2011 Ms Seidler thereafter filed 14 interlocutory applications in four different sets of proceedings. Many of these applications were rambling, discursive and incoherent. For example, in NSD 893 of 2011 (the proceedings in which leave to appeal from the orders of Cowdroy J was sought) an application was made for these orders: 1. Pursuant to section 32, 37M, 37N and 37P of the Federal Court Act 1976 and Order 6, including but not limited to Rule 11 and 16 Order 29 Division 2 Rule 5 of the Federal Court Rules: 1. That the NSD 1298/2011 Rule 6.03(1) motion be listed before the Honourable Justice Jacobson for further directions on that matter as the presiding/docket Justice and one who understood and spent the most time on the matters and was aware of the fact that the NSD24/2011 and NSD527/2011 matters were meant to be consolidated and who did not consider the statement of claim an embarrassment and allowed medical; and 2. Such further or other order as the Court deems fit for the joinder of Rule 6.03(1) motions under and consolidation of proceedings for NSD 24/2011 and NSD527/2011, 893/2011 and 1298/2011; 2. That Justice Perram recuse from the Rule 6.03(1) applications due to the claims in Judgement that my illness was something other than what it was and or for what I was claiming meaning there is a substantive error in assumptions and failure to recognise the seriousness of the illness being claimed meaning that substantial damages has been incurred by me now formally unrecognised based on Judicial error in diagnosis claims and prejudice has been caused in the leave to appeal without basis and the erroneous assumption that I filed a Human Rights claim AFTER the judgment of Justice Cowdroy has led to further unsubstantiated ridicule and loss. Justice Jacobson is the relevant docket Justice and most familiar with the fact that this is not the case and that the matters were meant to have been consolidated and did not consider the matters before him an embarrassment and allowed 2 months of filing. I also believe that Justice Jacobson understands the nature of the medical that was being claimed. 3. That such recusal and or change of appropriate Justice is confirmed from chambers/court prior to all hearings and applications. [sic] 15 I will not set the other 13 applications out but they are largely similar. What I will do instead is to indicate, in broad terms, the procedural course which Ms Seidler then charted. 16 In the proceedings for leave to appeal from Cowdroy J (NSD 893 of 2011) and Flick J (NSD 1298 of 2011) and also in the completed proceedings before their Honours she filed four sets of interlocutory applications seeking orders that: (a) I disqualify myself from dealing with the applications made by Ms Seidler for confidentiality orders pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth); that I transfer both sets of proceedings to Jacobson J or Stone J and consideration be given to joining, by way of consolidation, all of the various proceedings then extant; that is to say, the proceedings before me seeking leave to appeal (NSD 893 and 1298 of 2011) and those before Cowdroy J and Flick J (NSD 24 and 527 of 2011); (b) the respondents' solicitors be restrained from appearing in the proceedings; at the same time postponing certain confidentiality applications until after the determination by Stone J of Ms Seidler's recently filed application for leave to appeal out of time against the orders of Nicholls FM; that the first instance proceedings before Flick J be listed for further directions before Jacobson J; that the same proceeding be listed before Stone J; and that the remaining proceedings be transferred to Jacobson J; (c) the respondents and their solicitors be excluded from any hearing involving Ms Seidler and her claims for confidentiality; that Jacobson J, or alternatively Stone J, hear the matters; that Ms Seidler's statement of claim in NSD 24 of 2011 and NSD 527 of 2011 be sealed up and various other orders which are not susceptible to pellucid exposition; and (d) Ms Seidler's name be suppressed; and that her claim for such be conducted in closed court to reduce the risk of blackmail and various other orders of a similar kind. 17 When these applications came before me on 15 November 2011 I dealt with them as follows: I declined to disqualify myself; I declined to restrain the respondents' solicitors from acting; and I dismissed Ms Seidler's applications for suppression and related orders. Ultimately, I dismissed all 14 applications with costs: Seidler v University of New South Wales (No 2) [2011] FCA 1326. 18 Of these 14 applications the following might be observed: first, each was wholly devoid of merit; secondly, Ms Seidler's arguments were presented in a fashion which was offensive not only to her unfortunate and long-suffering opponent, Mr Mattson, but also to me; thirdly, the whole of Ms Seidler's arguments were indicative a person bereft of any understanding of the impact she was having on those around her or of any appreciation that the world might be capable of being viewed from some perspective not involving Ms Seidler's rights ('I have a right'); fourthly, the filing of so many applications in such a short time combined with the fact that many of them were filed in proceedings which are no longer extant combines to generate a reasonable anticipation that many more such baseless applications will be made in the future. During the course of oral argument, Ms Seidler sought to persuade me that she had no intention of commencing any further proceedings in this Court but I do not believe this. Indeed, I understand from the Registry that Ms Seidler sought to file three further interlocutory applications after I had reserved judgment in this matter. 19 The circumstances then are this: the power under r 6.02 is enlivened; the vexatious proceedings in question are ones exhibiting a failure on Ms Seidler's part to accept the finality of litigation; and her conduct at the hearing was indicative of a person unable to use the tools of litigation responsibly. In my opinion orders should be made barring Ms Seidler from commencing any litigation in this Court without the leave of the Court or from continuing any such proceedings which she has already commenced. I have considered whether this order should extend only to the present respondents or be more generally expressed. I think it likely that should the order not be generally expressed then Ms Seidler will simply broaden her net so that she can pursue the quest for what I am certain she perceives as ultimate judicial vindication of her merits. One cannot say with certainty who these unfortunate persons might be (although several non-parties are already referred to in her claims) but this Court should not permit its processes to be used further to indulge Ms Seidler's misguided behaviour. Accordingly, the order will be generally expressed. 20 The orders I make are: 1. Kathryn Seidler not continue with any proceeding commenced by her in this Court without the leave of the Court. 2. Kathryn Seidler not commence any proceeding in this Court without the leave of the Court. 3. These orders be entered forthwith. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Seidler v University of New South Wales

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