Application of Pamela Budd

1. [1]

   On 19 April 2013, for reasons given in Attorney General v Budd [2013] NSWSC 155, Hall J made the following order:

Budd v Registrar-General (No 265622 of 2006)

1. [2]

   Ms Budd commenced her 2006 proceeding on 27 October 2006 by filing a summons naming the Director General of Lands Titles as defendant. The summons was a pro forma printed document with the required particulars completed in barely legible handwriting. The “Relief claimed” section was filled out in these terms:

2. [3]

   Despite its irregular form the summons was accepted for filing and was marked with a listing date of 30 January 2007. At the same time Ms Budd filed a notice of motion, which was given the same return date. This was also a printed pro forma document with handwritten entries. The “Orders sought” section was completed as follows:

3. [4]

   Ms Budd did not personally serve the summons but sent it by facsimile to the Department of Lands on 23 November 2006. A notice of appearance was filed on 6 December 2006. On 30 January 2007 Deputy Registrar Haggett conducted a directions hearing with Ms Budd attending by telephone, at her request. She had informed the registry that she suffered from agoraphobia and was unable to attend in person. On the Court file of the 2006 proceeding there a number of psychologists’ reports, apparently supplied by Ms Budd during the brief history of the matter, attesting to her agoraphobia and anxiety. The psychologists who wrote these reports and the dates of them are: Christopher V Alexander, 12 October 2002; Avshalom Otmy, 5 April 2004; Yvette Hall, 3 March 2005; Liliane R Goodman, 28 April 2005 and 1 March 2006.

4. [5]

   On 30 January 2007 Deputy Registrar Haggett made these orders:

5. [6]

   In late 2006 and early 2007 ss 131 and 132 of the Real Property Act 1900 (NSW) provided as follows (extracted so far as presently relevant):

6. [7]

   In order 2 made by the Deputy Registrar on 30 January 2007, the reference to leave being granted pursuant to s 131 was clearly intended – and would have been understood – as a reference to leave under s 132(2). A copy of the orders was sent out to Ms Budd at the address she had provided for service, namely, 38/242 Malabar Road, South Coogee.

7. [8]

   At some time during February 2007 Ms Budd prepared a statement of claim on a printed pro forma document. This named the Registrar-General as defendant, in accordance with Deputy Registrar Haggett’s order 3 of 30 January 2007. The statement of claim did not seek leave to proceed, as required by s 132(2) in circumstances where Ms Budd had not taken any administrative proceeding for compensation under s 131. With respect to both “Relief claimed” and “Pleadings and particulars”, the statement of claim simply stated, “See attached letter 30/1/07”. Two such letters were attached. One of them contained the following matter:

8. [9]

   The second letter included the following:

9. [10]

   On 28 February 2007 there was a directions hearing before a registrar. It appears that Ms Budd’s statement of claim with the two letters of 30 January 2007 annexed was placed on the Court file at that time but it was not then, or at any later time, stamped as filed. At the directions hearing the defendant informed the registrar of his intention to file a notice of motion seeking an order for summary dismissal of the proceedings under r 13.4 of the Uniform Civil Procedure Rules. A direction was made that such a notice of motion should be filed by 6 March 2007.

10. [11]

    Ms Budd sent a copy of her statement of claim and the two annexed letters dated 30 January 2007 to the defendant by facsimile on 28 February 2007 accompanied by approximately 30 additional pages of sundry material, of no apparent relevance. On 6 March 2007 the defendant filed a notice of motion seeking summary dismissal under r 13.4 and in the alternative dismissal for want of prosecution with due dispatch under r 12.7(1). In an affidavit supporting this application the defendant’s employed solicitor deposed as follows:

Conclusion of the 2006 proceeding

1. [12]

   On 12 March 2007 the defendant’s notice of motion came before Hidden J. His Honour made the following orders:

2. [13]

   On 5 April 2007 Ms Budd was notified by a registrar of the Court in writing that Mr Mark Cohen of counsel had agreed to provide her with legal assistance and that copies of the documents held on the Court file had been forwarded to him. She was provided with Mr Cohen’s phone number. After reviewing the papers Mr Cohen wrote to the registrar on 11 April 2007 expressing concern about Ms Budd’s ability to provide rational instructions and stating that he could not discern any viable cause of action in respect of a transfer of property to Ms Budd on 11 June 1977. He did not address the alleged transfer to Mr MacKinnon in 1981.

3. [14]

   Mr Cohen’s letter was forwarded by the registrar to Ms Budd. On 12 April 2007 she replied in a document headed “Complaint”. In this she asserted that Mr Cohen was wrong and had not taken all of her documents into account. She wrote as follows:

4. [15]

   Mr Cohen wrote a further letter to the registrar on 12 April 2007 advising that he had spoken to Ms Budd by phone but had been unable to obtain “even the most rudimentary instructions” due to Ms Budd being “very agitated and almost hysterical” for much of the conversation. He found her to be not rational and formed the impression that she would require the appointment of a tutor for the purpose of conducting any litigation.

5. [16]

   Ms Budd did not file a further statement of claim by 23 April 2007, nor has she done so at any time thereafter. On 19 June 2007 the Acting Prothonotary wrote to Ms Budd in these terms:

6. [17]

   As Ms Budd did not file a re-pleaded statement of claim by 23 April 2007, nor make any application to extend time under Hidden J’s order, the proceedings have been treated by the registry as at an end. The file has been closed since 19 June 2007.

Ms Budd’s claim on the Registrar-General in 2013

1. [18]

   In an affidavit in support of her present application Ms Budd has deposed to her dealings with the Registrar-General since her statement of claim in the 2006 proceeding was struck out. On 5 August 2013 Mr Peter Baker, solicitor, wrote to the Registrar-General on Ms Budd’s behalf claiming compensation in respect of the transfer of the Delia Avenue land to Mr MacKinnon in 1981. The letter enclosed a statutory declaration of Ms Budd. Neither the letter nor the statutory declaration are in evidence on the application now before the Court but the particulars of the August 2013 claim can be inferred from subsequent correspondence from the Registrar-General that is annexed to Ms Budd’s affidavit.

2. [19]

   On 23 December 2013 the Registrar-General replied to Mr Baker, seeking clarification of an inconsistency in the statutory declaration and information regarding the quantum of Ms Budd’s alleged loss. By 28 October 2014 there had been no response to this requisition, despite a reminder being sent on 9 May 2014. In those circumstances the Registrar-General wrote again to Mr Baker on 28 October 2014 advising that the claim was formally refused under s 131(4) and (8A). Subsection (8A) was inserted in s 131 with effect from 13 May 2009, in the following terms:

3. [20]

   On 28 October 2014 Mr Baker belatedly replied to the Registrar-General’s requisition, supplying the information requested. Then in a letter of 5 February 2015 he submitted that Ms Budd’s claim had been made under s 129 of the Real Property Act and that the Registrar-General had misapprehended it as a claim by way of administrative proceeding under s 131. He submitted that there had been no determination under s 129 and he also asked that consideration be given to an ex-gratia payment by the Minister. These submissions were misconceived. Section 129 prescribes the basis upon which a claim for compensation may be made. However, the procedure for pursuing such a claim is provided for in ss 131 and 132.

4. [21]

   On 13 February 2015 the Registrar-General again wrote to Mr Baker. In that letter it was pointed out that Ms Budd had acknowledged, presumably in her original statutory declaration, that she became aware in 2001 that the Delia Avenue property had been transferred from her name to that of a bona fide purchaser. Ms Budd’s allegation was that the signature of herself as transferor was forged. The Registrar-General stated that her claim was statute barred and reiterated that it was formally refused. In this letter the Registrar-General referred to the 2006 proceeding and said that he understood it had been dismissed “in or around 2007”.

The present application for leave under s 14 of the Vexatious Proceedings Act

1. [22]

   Ms Budd’s current summons for leave under the Vexatious Proceedings Act claims the following principal relief:

2. [23]

   The claim for this relief is untenable at many levels. To begin with, the 2006 proceeding was irremediably flawed. Ms Budd’s present affidavit annexes the transfer from herself to Mr MacKinnon in 1981. It is dated 30 October in that year and it was registered on 15 December 1981. The event giving rise to compensable loss as a result of the transfer was the registration. If the instrument should not have been registered, then loss would have been sustained immediately. By force of s 131(2) of the Real Property Act, as in force in 2006 and as still in force at the present time, the six-year limitation period within which Ms Budd would have had to make a claim upon the Registrar-General expired on 15 December 1987.

3. [24]

   Further, Ms Budd’s 2006 proceeding in this Court was incompetent because she had not first commenced an administrative proceeding under s 131 and had not obtained a determination of any such proceeding: s 132(2)(a). In those circumstances Ms Budd required either the leave of the Court or the consent of the Registrar-General to file her 2006 summons. She obtained neither consent nor leave. Ms Budd never applied to the Court for leave.

4. [25]

   By the time Ms Budd’s summons was filed in 2006 the statutory limitation period for her to make a claim on the Registrar-General under s 131 had been expired for nearly 19 years. Even if Ms Budd had sought the Court’s leave pursuant to s 132(2), there is no basis upon which leave could have been granted, or could now be granted, for the 2006 proceeding. If the Court should permit the commencement of such a matter 19 years after expiry of time for the necessary antecedent s 131 claim, the statutory time limit for administrative proceedings would be circumvented. A grant of leave in those circumstances would defeat the scheme of Pt 14 of the Act.

5. [26]

   Irrespective of Ms Budd requiring leave under the Vexatious Proceedings Act, she would not be permitted to resume prosecution of the 2006 proceeding as an ordinary litigant. The 2006 proceeding was never maintainable and it would be an abuse of process for Ms Budd to revive activity in a proceeding that she has not prosecuted for 13 years.

6. [27]

   For a number of reasons Ms Budd could not commence a fresh proceeding in this Court to pursue her claim for compensation. She has now satisfied the prerequisite of s 132(2)(a), in that administrative proceedings under s 131 were commenced on 5 August 2013 and determined on 28 October 2014 – or, at latest on 13 February 2015. However a fresh proceeding in this Court would have to have been commenced within three months of the Registrar-General’s determination; that is, at latest, by 13 May 2015. This is a consequence of an amendment of subs (2) of s 132 and the insertion of subs (2A) with effect from 13 May 2009. Since that date those subsections have been in the following terms:

7. [28]

   Also, for reasons given above, the claim is substantively out of time relative to the date of the alleged act or omission giving rise to compensable loss. The Registrar-General apparently thought the claim accrued only when Ms Budd became aware of the transfer to Mr MacKinnon, in 2001. That view was unduly favourable to Ms Budd. For reasons given above, the claim accrued on 15 December 1981. Even on the Registrar-General’s view that the claim accrued in 2001, the six-year time limit would have expired in 2007 and Ms Budd’s administrative proceeding under s 131 would have been about six years out of time when initiated by Mr Baker’s letter of 5 August 2013.

Orders

1. [29]

   For these reasons orders will be entered to the following effect:

   1. (1)

      The plaintiff’s application pursuant to s 14 of the Vexatious Proceedings Act 2008 for leave to re-commence proceedings No 265622/2006 is refused.

   2. (2)

      The summons is dismissed.