Young v Racing NSW

Court of Appeal (NSW)|2021-09-30|Before: Macfarlan JA, Meagher JA, Bellew J

Solicitors: YPOL Lawyers (First, Second and Sixth Respondents) Swaab Attorneys (Third and Seventh Respondents) Crown Solicitor's Office (Fourth and Fifth Respondents) File Number(s): 2021/180489 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2021] NSWSC 556 Date of Decision: 21 May 2021 Before: Bellew J File Number(s): 2020/290023

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: The applicant (Mr Gary Young) seeks leave to appeal from orders made by Bellew J on 21 May 2021 dismissing his proceedings commenced in the Common Law Division of the Supreme Court of New South Wales (Young v Racing NSW Ltd [2021] NSWSC 556). In those underlying proceedings Mr Young alleged that he had been discriminated against and denied procedural fairness in earlier District Court proceedings heard and dismissed by Gibson DCJ. His statement of claim in the Common Law Division named as defendants the three defendants to the District Court proceeding, their solicitors, the State of New South Wales and the District Court of New South Wales.

The proceedings in the District Court

Mr Young filed his statement of claim in the District Court at the Lismore registry on 19 July 2019. That statement of claim included allegations of defamation and negligence against the first to third defendants (Racing NSW, Casino Racing Club Ltd and Richmond Valley Council), arising from an online news publication which he alleged prevented him from renewing his licence to train racehorses.
Pursuant to the District Court's Defamation List Practice Note, those proceedings were listed for a directions hearing before Levy SC DCJ in Sydney on 22 August 2019. Following a short hearing, his Honour made orders by consent and marked the court file to note that Mr Young would appear at future hearings by telephone link.
Mr Young filed an amended statement of claim on 25 October 2019 and on 7 November 2019 a strike out application by the defendants was heard by Gibson DCJ. Mr Young participated in the hearing by telephone. At its commencement, her Honour told counsel that Mr Young had a hearing deficit and that they would need to speak slowly, clearly and loudly. During the course of Mr Young's submissions, the following exchange occurred: "HER HONOUR: Mr Young, is there anything else you wanted to say about that? PLAINTIFF: No, I think I have done that, your Honour, I can't really hear what you're saying, so anyway it's really difficult to hear. HER HONOUR: Well you seem to be able to respond to my questions quite helpfully. PLAINTIFF: No, no, I can - when you speak loud I can hear you very well, but I have a hearing loss and basically I'm getting the high points and the low points of discovery. Anyway, I've got your general meaning."
After some further submissions, and towards the end of the hearing, the following is recorded in the transcript: "PLAINTIFF: … I obviously cannot hear. HER HONOUR: I beg your pardon? PLAINTIFF: I said I am having trouble hearing… (not transcribable)… I think we are at cross-purposes here. HER HONOUR: No, we are not at cross-purposes, you are understanding exactly what I'm saying and I think the difficulty is you can't answer my question. PLAINTIFF: Well, most of the time I can, you're right, but not all the time…"
Her Honour delivered judgment on 14 November 2019 and ordered that the proceedings be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 and 14.28.
Following delivery of that judgment, Mr Young filed an application in the District Court to have her Honour's orders set aside, primarily on the basis that he was discriminated against, and therefore denied procedural fairness, during the 7 November 2019 hearing, in essence because of his hearing disability. Gibson DCJ heard that application on 13 August 2020. The transcript of the hearing, at which Mr Young appeared by video link, does not record Mr Young raising any hearing difficulties. To the contrary, at the outset of the hearing Mr Young is recorded as saying "…I can actually read your lips and hear what you're saying, this is very clear, I can hear this, I can see this and I'm actually participating". On 3 September 2020, her Honour ordered that his application be dismissed.

Mr Young's Common Law Division statement of claim

Mr Young's statement of claim filed in the Common Law Division contains the following heading describing the nature of his claims: "For Negligence causing damages against all named defendants as set out herein and for declaratory relief". The substance of the allegations that appear thereafter is that Mr Young was unfairly discriminated against and therefore denied procedural fairness in the District Court proceedings to which we have referred. He alleges discrimination based on his "circumstances, location, deafness, age, [and] disabilities". He says that he was required to attend court in Sydney at considerable inconvenience because he lived near the Queensland border, and that his hearing impediment was not properly accommodated, with the result that he was not able to participate meaningfully in the hearings.
Mr Young further claims that even though each of the respondents was aware of those circumstances, they acted "with complete negligence and total reckless disregard" for his rights either separately or in concert with each other. As a result he seeks various forms of relief, including declaratory relief, an order staying the enforcement of the costs orders made against him in the District Court, damages, and an order that the District Court proceedings be "voided…and retried again".

Consideration

The primary judge concluded that the Common Law Division proceedings should be dismissed because Mr Young's statement of claim disclosed no reasonable cause of action (J[55]), and on the further basis that they were an abuse of process because they amounted to a collateral challenge to the decision in the District Court proceedings (J[58]).
The primary judge concluded (at J[53]) that Mr Young's assertions that he was discriminated against or denied procedural fairness in the District Court were "entirely baseless" and that Mr Young had not demonstrated any arguable basis for a different view. Following the directions hearing before Levy SC DCJ, Mr Young had been permitted to participate in future hearings by telephone or audiovisual link. He took up that offer, which relieved him from having to travel to Sydney. In any event, none of the respondents was responsible for the matter initially being listed in the Sydney registry. That was a consequence of the District Court's Practice Note concerning defamation proceedings.
Having reviewed the District Court transcript, we agree with the primary judge that "…the plaintiff was able to engage in the proceedings generally, and engage with her Honour specifically" (J[53]). That is evident from the way in which he was able to respond to Gibson DCJ's questions about his case during each of the hearings, in most cases without requiring any clarification of the question. That impression is confirmed by the observations made by Gibson DCJ, set out above at [5], when Mr Young suggested that he was not able to hear. Although at some points Mr Young asked for clarification or for words to be repeated, that occurred infrequently and no more often than would be expected for any participant in a proceeding who appears remotely by audio or audiovisual link and whether legally trained or not. Moreover, Mr Young had a further opportunity to defend his statement of claim at the hearing on 13 August 2020 of his application to set aside the earlier judgment under UCPR, r 36.15. He took part in that hearing via video link and does not appear to have had any difficulty hearing what was said (see [7] above).
Quite apart from the absence of a factual basis for Mr Young's allegations, his statement of claim is deficient because it does not disclose any arguable cause of action.
Central to Mr Young's argument were alleged breaches by the defendants of the Disability Discrimination Act 1992 (Cth). Section 125(1) however provides that the Act "does not confer on a person a right of action in respect of the doing of an act that is unlawful under a provision of Part 2 unless a provision of this Act expressly provides otherwise". Part 2 of the Act contains the operative provisions that prohibit disability discrimination. Mr Young has not identified any provision of the Act that expressly or impliedly confers a right of action, and it is plain that there is none that would assist Mr Young to support his statement of claim.
Mr Young also appears to rely on, or at least assume the existence of, undefined duties of care owed to him by each of the various defendants to his Common Law proceedings. Those defendants included the opposing parties in the District Court proceedings and their lawyers. No circumstances have however been pleaded to warrant, or render arguable, a conclusion that these parties owed duties of care to Mr Young, contrary to what would ordinarily be the case (see for example Cran v State of New South Wales (2004) 62 NSWLR 95; [2004] NSWCA 92 at [27]-[63], especially at [57], and S Walmsley, A Abadee, B Zipser and G Sirtes, Professional Liability in Australia (3rd ed, 2016, Thomson Reuters) at [3.630]). The position is a fortiori in respect of the 5th and 6th defendants to the Common Law Proceedings (the State of New South Wales and the District Court of New South Wales) which were not parties to the District Court proceedings. In particular, whilst judges of the District Court have obligations to afford fair trials to litigants who come before them, the litigants do not have any private rights of action to enforce those obligations.
Mr Young also submitted that the Common Law Division proceedings are not, as the primary judge found them to be, a collateral attack on the District Court orders, but instead are "about discrimination by disability in relation to and with respect to access to the court". The relief Mr Young seeks however includes that there be a fresh hearing in the District Court and that its costs orders be stayed. That makes plain that the purpose and effect of these proceedings is to mount a collateral attack on the District Court decision.
Mr Young could have sought leave to appeal against Gibson DCJ's dismissal of his District Court proceedings on the same grounds that he relies on in the present proceedings, to the effect that he was denied procedural fairness in the District Court. He did not however do so and it is an abuse of process for him to seek to achieve the same result by commencing fresh proceedings (that is, the Common Law Division proceedings which are the subject of the present application for leave to appeal) (see for example Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 410-414).
We add that no basis has been identified for drawing an analogy with the exceptional circumstance addressed in Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12 of an application in subsequent proceedings to set aside a judgment in earlier proceedings on the basis that it was procured by fraud. As described by the High Court at [56] in that case, there are historical reasons for the approach there taken. The general and adamant acceptance by the law of the principle of finality stands against the creation of any further exception that would encompass the present case (see D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34]).
For these reasons we do not consider that if leave to appeal were granted, the appeal would have any prospect of success. As a result the summons seeking leave to appeal is dismissed with costs.

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: 07 October 2021

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