Jabbar v Gade (No. 3) (pseudonyms)

1. [1]

   HER HONOUR: This matter involves a notice of motion seeking to strike out the proceedings and a declaration that the plaintiff is a vexatious litigant.

2. [2]

   The plaintiff is referred to by the pseudonym Jabbar. The defendant, her former husband, is referred to by the pseudonym Gade. Without meaning any disrespect and for convenience I shall refer to the plaintiff as Jabbar and the defendant as Gade in this Judgment. At the hearing, Jabbar was self-represented. Gade was represented by Mr Weightman of Counsel. The defendant relied on a Court Book (Ex 1) and affidavits of Gade dated 17 May 2022, Ayden Shepherd 27 July 2022, Niesha Shepherd 28 July 2022, Jessica Fordham 27 July 2022 Suzanne Siderovki 27 July 2022. The last 4 affidavits concern the issue of service. The plaintiff relied on 5 volumes of Court Books (Ex 1, 2, 3, 4, 5), an additional bundle of documents (Ex B) and a court order notice dated 16 April 2016 (Ex C).

The current proceedings before this court

1. [3]

   By way of summons filed on 11 April 2022, Jabbar relevantly seeks the following orders:

   1. (1)

      To give permission per s 338(1) and 338(2) [of the Crimes Act 1900 (NSW)] to file an application to examine the records (Under s 49 of Criminal Procedure Act 1986 (NSW) which “may” lead to “perjury”, “pervert the natural course of justice”, “obstruction to justice”, “tampering with evidence”, “[breach] of good behaviour bond”, “[breach] of AVDO”, and “contempt of court” by [Gade] (permission to examine records).

   2. (2)

      Plaintiff is not a vexatious litigant (not vexatious litigant).

   3. (3)

      Allegations and evidence of text messages dated 25 July 2015 and video dated 9 March 2013 are not true (untrue text messages and video).

   4. (4)

      Orders for Federal Police to recover children and hand over them to their mother (plaintiff in this case) (Federal Police recover children).

2. [4]

   The notice of motion filed by Gade dated 16 May 2022 seeks the following orders:

   1. (1)

      Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the Summons filed on 11 April 2022 be dismissed.

   2. (2)

      Pursuant to s 8(7) and s 8(9) of the Vexatious Proceedings Act 2008:

   3. (3)

      The plaintiff pay the defendant's costs of the summons and this Notice of Motion, on an indemnity basis.

3. [5]

   I shall deal with the defendant’s application for summary judgment first. I have also set out a history of the plaintiff’s prior proceedings in the Federal, Supreme, District and Local Courts of NSW in order to ascertain whether Jabbar is attempting to relitigate prior proceedings. The plaintiff seeks a declaration that she is not a vexatious litigant and the defendant seeks orders pursuant to s 8(7) and s 8(9) of the Vexatious Proceedings Act 2008, in the alternative that the summons filed 11 April 2022 is stayed and that Jabbar is prohibited from instituting proceedings including criminal proceedings, in New South Wales. That is the last topic I will address.

4. [6]

   On 30 April 2021, following the dismissal of proceedings instituted by the plaintiff for an Apprehended Domestic Violence Order (“ADVO”), Magistrate Crews (“the Magistrate”) in the Local Court, made a recommendation to the Attorney-General that an application be made for a Vexatious Proceedings Order against the Jabbar. At the time of the hearing in this Court the recommendation appears to be considered by the Attorney-General (Gade [10], [80]). The plaintiff has been declared as a vexatious litigant in the Federal Circuit Court of Australia.

5. [7]

   Jabbar has been the subject of various adverse costs orders in the then Federal Circuit Court of Australia, the Full Court of the Family Court of Australia, the Local Court, the District Court, and this Court. Jabbar presently owes the defendant $22,426.01 in unsatisfied costs orders. Walton J is presently reserved on issue of costs following conclusion in of the personal injury proceedings in Jabbar v Gade (No 2) [2021] NSWSC 1660.

Summary judgment

1. [8]

   The defendant relies on Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 13.4. It reads:

2. [9]

   In Colombini v De Berigny [2021] NSWSC 374, Ward CJ in Eq at [44] stated:

3. [10]

   In Jabbar’s written submissions, while being somewhat difficult to follow, are as follows:

4. [11]

   As she outlined these details in her Summons, "Court Attendance Notice (CAN)" (filed in this court on 11 April 2022 and applicant has a copy of that) and in her affidavit dated 6 June 2022. If Gade wants this court to use Federal Circuit Court orders dated 16 August 2019 to dismiss Jabbar’s application, in this matter, (Gade is the applicant and all evidence have been in his possession only, all the time), he should provide evidence to this court for (not limited to):

   1. (1)

      On 19 August 2015, the Gade did not decide to end his relationship with Jabbar.

   2. (2)

      On 19 August 2015, Gade did not take my children from their schools.

   3. (3)

      In August 2015, Gade did not start parenting proceeding in Federal Circuit Court, Newcastle.

   4. (4)

      Between 19-22 August 2015, Gade informed Jabbar about her children and allowed her to see/talk to my children.

   5. (5)

      On 31 August 2015, Gade did not produce fake evidence against me in Federal Circuit Court, Newcastle to get children's custody.

   6. (6)

      After 31 August 2015, Gade did not refuse to allow me to see my children in a supervised manner by my friends.

   7. (7)

      In November 2015, Gade did not start property proceeding in Federal Circuit Court, Newcastle.

   8. (8)

      In February 2016, Gade did not produce another fake evidence against me in Federal Circuit Court, Newcastle.

   9. (9)

      In February 2016, Gade did not provide false information in his affidavit in Federal Circuit Court, Newcastle.

   10. (10)

       In February 2016, Gade did not make a fake complaint against me to NSW Police.

   11. (11)

       In September 2016, Gade’s mother did not make a fake complaint against Jabbar to NSW Police to trap me in breach of AVDO.

   12. (12)

       In February 2017, Gade did not provide wrong information to District Court, Newcastle.

   13. (13)

       In February 2017, Gade did not provide false information in his affidavit in Federal Circuit Court, Newcastle, even after court orders.

   14. (14)

       In March 2017, the family report writer did not write a report against me on the basis of Gade’s fake evidence of text messages dated 25 July 2015 and video dated 9 March 2013.

   15. (15)

       In July 2017, Gade did not refuse to provide Jabbar his mobile phone for forensic analysis to prove her innocence in Federal Circuit Court, Newcastle.

   16. (16)

       In August 2017, Gade did not provide wrong information in his affidavit in Federal Circuit Court, Newcastle.

   17. (17)

       In August 2017, Gade did not accept that there were no text messaged dated 25 July 2015 and video dated 9 march 2013, in his affidavit in Federal Circuit Court, Newcastle.

   18. (18)

       In August 2017, Gade’s mother did not give false evidence in Federal Circuit Court, Newcastle.

   19. (19)

       In October 2017, Gade did not refuse to provide Jabbar his mobile phone for forensic analysis to prove her innocence in Federal Circuit Court, Newcastle.

   20. (20)

       In May 2018, the Federal Circuit Court did not make parenting orders on the basis of Gade’s fake evidence text messages dated 25 July 2015 and video dated 9 March 2013.

   21. (21)

       In February 2019, the Full court did not accept Gade’s fake evidence of Text messages dated 25 July 2015 and video dated 9 March 2013 on the "balance of probability".

   22. (22)

       In June 2019, Gade did not use the fake evidence again in Federal Circuit Court, Newcastle and did not ask court to dismiss my application on the basis of same fake evidence and declare me vexatious litigant.

   23. (23)

       Between August 2015-April 2019, Gade did not file several applications in Federal Circuit Court, Newcastle to get the sole possession of the property in Adamstown (Adamstown, NSW) (“the Adamstown property”)

   24. (24)

       In April 2019, Gade’s application to get the sole possession of the Adamstown property was not dismissed by Federal Circuit Court, Newcastle.

   25. (25)

       In November 2019, in Jabbar’s absence, Gade did not brake locks of the Adamstown property and did not take the possession of the Adamstown property without any court/legal document/orders.

5. [12]

   There are four issues that need to be addressed. First is permission to examine records, second is that the text and video messages are not true. Then I will address ground 4 in the plaintiff’s (Jabbar’s) summons, namely recovery of children and whether the plaintiff should or should not be described as a vexatious litigant.

6. [13]

   That relates to both the defendant’s (Gade’s) applications for summary Judgment and the other that the plaintiff be declared vexatious. It also relates to the plaintiff’s application to be declared not vexatious.

7. [14]

   The issues of the video recordings, the text messages and the Federal orders to recover her children appear to have been dealt with before in the proceedings in Gade v Jabbar (No 11) [2018] FCCA 1056, where the full Federal Court addressed the issues as to where the mothers fixated on whether two video recordings which depict her threatening the father and children and assaulting one of the children and two text messages in which she threatened to harm the children and herself and destroy property should be admitted into evidence.The full Federal Court considered these issues in detail. The extract is long but I think it needs to be reproduced in full as it demonstrates these issues were closely examined. At [144]-[223] the full Federal Court stated:

8. [15]

   It is unclear what power Jabbar asking the Court to exercise in seeking to “examine records”, but even assuming such a power exists (Summons, Order 1), the Court can be comfortably satisfied the proceedings are frivolous or vexatious under r.13.4(1)(a) of the UCPR. The “pleadings” (as well as order 4 of the Relief Claimed), contained in the summons contain the litany of complaints that Jabbar has made in various courts at various different times, including in this Court: Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660.

9. [16]

   As set out earlier in this Judgment, the plaintiff’s allegations regarding the text messages and authenticity of the video footage have been issues have been carefully analysed and adjudicated both in the Federal Court, Full Federal Court and this Court in Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660. They are the subject of issue estoppel and res judicata.

10. [17]

    The plaintiff has not persuaded me that she has reasonable cause of action. While she may perceive that she has been aggrieved, this does not amount to an arguable case. The plaintiff also seeks orders that the Federal Police recover her children and hand them over to her. The custody of the children of the marriage has been extensively dealt with in the Family Circuit Court and the Full Federal Court of Australia. There is no jurisdiction for this Court to make these orders. For reasons that appear under the next heading ‘Vexatious litigant” I decline to declare that the plaintiff is not vexatious. It is my view that the matters raised in the summons are hopeless. The summons dated 11 April 2022 is dismissed.

Vexatious litigant

1. [18]

   The defendant relies on Vexatious Proceedings Act 2008 (NSW) ss 6, 8(7) and 8(9) that read:

2. [19]

   In Zepinic v Chateau Constructions Australia Ltd [2018] NSWCA 317 (“Zepinic”) at [13] – [19], it was explained:

3. [20]

   “Proceedings” is defined in s 4 of the Act. The definition is broad enough to include all civil proceedings, criminal proceedings, interlocutory proceedings, procedural applications and appeals in Australia.

4. [21]

   In Potier v The Attorney-General of the State of New South Wales [2015] 89 NSWLR 284 (“Potier”) NSWCA 129, Leeming JA (with whom Basten and Meagher JJA agreed) held at [114] – [118]:

5. [22]

   The Court can also be comfortably satisfied that the summons is “vexatious” (s 6 Vexatious Proceedings Act 2008 (NSW). The summons is an abuse of process, it can be considered to have been instituted to harass or annoy Gade and has been instituted without reasonable grounds. Jabbar has conducted these proceedings in a “way as to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment” (evidence from Gade’s solicitor concerning “service”).

The plaintiff’s prior proceedings

1. [23]

   On 21 July 2017, Jabbar filed an Amended Statement of Claim filed in the District Court of New South Wales seeking $750,668 against Gade for allegedly providing fake evidence in court. Jabbar’s claim was dismissed pursuant to UCPR r 13.4(1) and Jabbar was made to pay Gade’s costs (CB 194).

2. [24]

   On 16 June 2020, Jabbar filed an ADVO application before Magistrate S Crews in the Local Court of New South Wales. Jabbar’s application was dismissed and an application for a Vexatious Proceedings Order in relation to Jabbar was recommended (CB 166-167).

3. [25]

   In July 2016, Jabbar filed an amended statement of claim alleging five counts of assault by Gade in the Newcastle Local Court (T20-30). Gade pleaded guilty to one count of assault against Gade that occurred in India in January 2015 (T4-11-28).

4. [26]

   In the Federal Circuit Court proceedings before Judge Terry spanning from 2015—2019, Jabbar’s applications were repeatedly refused by her honour. A summary of the proceedings heard by her honour are as follows.

5. [27]

   In Gade v Jabbar (No 7) [2017] FCCA 779, on 20 April 2017, made an application for orders that her honour be disqualified from further hearing this matter, that there be a change of venue and that no further orders in this case be made until the appeals pending in the Full Court were all dismissed. Jabbar argued that all of Judge Terry’s interim orders were flawed. When dismissing Jabbar’s application for her honour to recuse herself, her honour held that:

6. [28]

   In Jabbar v Gade (No 9) [2017] FCCA 3403, on 27 July 2017, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar’s applications for contempt filed on 22 July 2016 and 29 August 2016, as well as the application for contravention filed on 9 March 2017 were all dismissed on the basis that Jabbar failed to establish a prima facie case and that Gade had no case to answer.

7. [29]

   In Jabbar v Gade (No 10) [2017] FCCA 3404, on 28 July 2017, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar pay Gade’s costs arising out of and incidental to Jabbar’s unsuccessful applications for contempt and contravention against Gade. While assessing Jabbar’s claims to determine an award of costs, her honour pointed out the weakness of Jabbar’s applications by stating at [35]:

8. [30]

   From this observation, it may be inferred that Jabbar has instituted proceedings for contempt without reasonable grounds for doing so.

9. [31]

   In Gade v Jabbar (No 15) [2018] FCCA 2041, on 2 July 2018, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar’s application seeking a stay of final parenting and property orders on 28 May 2018 and 22 June 2018 be dismissed. Her honour commented at [10] and [48]-[49]:

10. [32]

    In Gade v Jabbar (No 16) [2018] FCCA 2195, on 19 March 2018, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar was to pay Gade’s costs of and incidental to an interim application concerning the wife’s failure to make mortgage payments. In doing so, her honour said that at [15]:

11. [33]

    In Gade v Jabbar (No 18) [2017] FCCA 3431, on 28 September 2017, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar’s oral application to issue subpoenas to the Department of Immigration and the High Commissioner of (country omitted) in Australia was dismissed. Her honour observed at [8] that:

12. [34]

    In Gade v Jabbar (No 19) [2018] FCCA 2903, on 4 October 2018, Judge Terry ordered in the Federal Circuit Court of Australia that Jabbar’s application for a stay of proceedings be dismissed. Judge Terry indicated that Jabbar has a history of unwillingness to cooperate with court rules at [25]:

13. [35]

    In Gade v Jabbar (No 20) [2019] FCCA 86, on 2 April 2019, Jabbar made a further application that her honour disqualify herself from hearing an enforcement application. Judge Terry stated at paragraphs [4]-[5] and [7]-[8]:

14. [36]

    In Jabbar v Gade (No 22) [2019] FCCA 2186, on 16 August 2019, in the Federal Circuit Court of Australia Judge Terry order that Jabbar was prohibited from instituting proceedings under the Family Law Act 1975 (Cth) in any court having jurisdiction under that Act. Her honour held at [67]-[70] that:

15. [37]

    At the time of making these orders, Judge Terry set out the procedural history of Jabbar’s previous applications at [74]-[89]:

Appeals

1. [38]

   Jabbar has appealed many decisions of the primary judge in various higher courts. These appeals were largely dismissed by the superior court judges dealing with Jabbar’s claims. Some relevant examples include:

2. [39]

   In Jabbar v Gade [2017] FAMCAFC 273, on 14 March 2017, Jabbar appealed to the Family Court of Australia, Ainslie-Wallace J ordered that an application made by Jabbar for an extension of time in the Family Court of Australia to appeal interim parenting and property orders made by Judge Terry. That application was refused. Her honour noted Jabbar’s appeal was largely devoid of merit at [11]-[12], where she stated:

3. [40]

   In Jabbar v Gade [2017] FamCAFC 106, on 7 June 2017, Ryan J dismissed all appeals brought by Jabbar concerning interim parenting orders and injunctions under s 68B of the Family Law Act 1975 (Cth) and ordered Jabbar to pay Gade’s costs. With respect to Jabbar’s grounds of appeal, Ryan J noted at [47] and [49] that:

4. [41]

   In Potier, Leeming JA explained, “frequently” is not to be assessed merely by an arithmetic calculation. It must be looked at in the context of the litigation being considered: Attorney General of NSW v Wilson [2010] NSWSC 1008 at [12] (Davies J); Attorney General of NSW v Croker [2010] NSWSC 942 at [22] (Fullerton J); Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 at [7] (Davies J).

5. [42]

   Ryan J noted the frequency of occasions that Judge Terry has been asked by Jabbar to consider interim applications. However, the actual number of proceedings is not determinative. The individual number of proceedings can be small or large, depending on the context of the litigation being considered. In the context of these proceedings, the plethora of appeals brought by Gade are disproportionate to the subject matter being addressed. As the applications were noted by Ryan J to be devoid of merit they can be considered vexatious pursuant to s 8(1)(a) of the Act.

6. [43]

   In Jabbar v Gade (No 4) [2018] FAMCAFC 210, on 5 November 2018, Ryan J dismissed two appeals in the Family Court of Australia brought by Jabbar from the decision of Judge Terry. Jabbar was ordered to pay a portion of Gade’s costs. Ryan J noted at [29]:

7. [44]

   In Jabbar & Gade [2019] FAMCAFC 14, on 8 February 2019, Aldridge, Austin and Gill JJ held in the Full Court of the Family Court of Australia that Jabbar’s primary appeal lacked merit and was dismissed. Some of the other grounds of appeal were said to simply replicate the primary appeal. Jabbar was ordered to pay the Independent Children’s Lawyer’s costs.

8. [45]

   In Jabbar v Gade; Jabbar v Gade [2019] HCASL 344, on 17 October 2019, Bell and Gageler JJ refused special leave to appeal the judgment of the Full Family Court, as their honours held that there was no reason to doubt the correctness of that decision. Pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), Jabbar’s application was dismissed.

9. [46]

   In Jabbar v Gade [2020] FAMCAFC 49, on 9 March 2020, Aldridge J noted on appeal in the Family Court of Australia at [9]-[11] that:

10. [47]

    In Jabbar v Gade (No 2) [2020] FamCAFC 119, on 24 April 2020, Strickland, Ainslie-Wallace & Tree JJ heard an appeal in the Family Court of Australia from Judge Terry in the Federal Circuit Court of Australia summarily dismissing an application for final parenting orders sought by Jabbar in relation to the children. Their honours dismissed all Jabbar’s grounds of appeal as wholly unsuccessful. Their honours outlined the procedural history of Jabbar’s applications at [38]-[41]:

Proceedings in the Local Court

1. [48]

   On 14 April 2016, in Local Court proceedings 2016/15261, Gade plead guilty to the offence of common assault and was sentenced to a good behaviour bond for 14 months.

Proceedings in the Supreme Court

1. [49]

   In Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660, Jabbar filed a statement of claim in the Supreme Court of New South Wales, in which she sought damages against Gade for five claims of assault and battery. Gade admitted one of the assaults. On 16 December 2021, Walton J ordered that Jabbar had established liability with respect to the assault on 2 March 2013 and $7,000 of damages were awarded. Walton J rejected the remaining claims brought by Jabbar based on the first, second, fourth and fifth assaults. I accept that Jabbar had some success in these proceedings.

2. [50]

   Counsel for Gade drew the Court’s attention to an issue relating to the plaintiff’s serving of documents. He submitted that there was a big problem with service, we still haven't been served with these documents, and the point that these affidavits go to is the vexatious proceedings issue in terms of conduct of proceedings which your Honour is entitled to take into account under section 6 or, sorry, section 7 or section 8 in terms of conduct of proceedings (T4.8-12).

3. [51]

   On this topic, Gade relies on the affidavit of 4 of his solicitors or employees, Ayda Shepherd sworn 27 July 2022, Neisha Shepherd sworn 28 July 2022, Jessica Fordham sworn 2022 and Susanne Siderovski sworn 27 July 2022. I shall deal with this issue first, followed by each of the grounds the plaintiff’s summons in seriatim.

Service of documents

1. [52]

   I will summarise the evidence of the deponents. Ms Siderovski, Executive manager at NLS Law, deposed that on Thursday 21 April 2022, she was working in the office area of NLS Law and Mr Ayden Shepherd was working in his office. She recounts the following:

2. [53]

   Ms Shepherd was not physically in the office on 23 June 2022. She deposes in her affidavit at [5] that she received a telephone call from the employed Solicitor Ayden Shepherd of NLS Law who advised her that a message was received from the reception service that a person who he now knew to be [Jabbar] was waiting outside in her car wanting to serve NLS Law with documents and that she would be there for 10 minutes to collect the documents from her. Mr Shepherd told me that he had opened the office door and saw [Jabbar] in the car and it looked like she was filming him with her mobile phone. I instructed Mr Shepherd that he was not to approach [Jabbar] and that [Jabbar] was to come to our front door to serve the documents. I spoke to Ms Fordham who is the Associate Solicitor at NLS Law and advised her the same. I told Mr Shepherd and Ms Fordham that I was concerned for their safety if they approached [Jabbar] outside of the office at her car. I instructed Mr Shepherd to email [Jabbar] and request that she attend our office front door to serve the documents.

3. [54]

   Ayden Shepherd in his affidavit confirms that at around 1:17pm on 23 June 2022, he saw an email had been received from our reception service. The email contained a message advising that a caller was outside of the office with paperwork that was to be signed and stamped and that the caller would only be outside of the office for 10 minutes.

4. [55]

   After sighting [Jabbar] he waited at the front door of the NLS Law office. I was waiting at the front door for [Jabbar] to attend the NLS Law office. I saw that [Jabbar] appeared to be looking towards him.

5. [56]

   At 1:26pm on 23 June 2022 I sent an email to [Jabbar] at the email address XXX@gmail.com. The email outlined that we required [Jabbar] to attend the front door of the NLS Law office to serve documents.

6. [57]

   At no point while I was waiting at the front of the NLS Law office did [Jabbar] approach him speak with him directly. [Jabbar] did not provide him with any documents or information.

7. [58]

   In response, the plaintiff explained that she was in their office. She phoned them and said “I'm coming to your office, I'm outside your office, please come and collect it. I will wait.” She says that she clearly mentioned that she would wait there for a certain period of time. Nobody came. Nobody contacted her. She says that they had her phone number, they could have called her, they could have sent her an email but nobody made any contact with her. The Court didn't make any orders for me to file any tender bundle. First, they made an application that they – after that when she went to their office to give them tender bundle, had created this issue (T4.44-5.2). She gave the bundle to the defendant’s Counsel in Court.

8. [59]

   While the plaintiff’s attempt to serve documents on the defendant’s solicitor’s office was unusual, so was the conduct of the solicitor’s office. I make no adverse finding against the plaintiff concerning her attempt to serve these documents.

9. [60]

   There is no doubt that Jabbar has frequently instituted or conducted vexatious proceedings in the Federal Circuit Court.

10. [61]

    There is no doubt that Jabbar’s previous proceedings fell within the meaning of vexatious proceedings pursuant to s 6(c) of the Act. Jabbar had conducted litigation in a manner intended to delay and annoy pursuant to s 6(d). She had instituted proceedings in the Federal Court that had “no prospects of success”. Her applications have been described as ‘unnecessary’ and imposing a financial burden on Gade and the community.

11. [62]

    Judge Terry’s concern that Jabbar ‘may have an ulterior motive’ for issuing the subpoena alludes to the fact that Jabbar has conducted the above proceedings to achieve a wrongful purpose pursuant to s 6(d) of the Act. Her honour pointed out the significant length and quantity of proceedings instituted by Jabbar. Jabbar has repeatedly requested that Judge Terry disqualify herself, in reply to what was dissatisfaction with the result.

12. [63]

    It is a serious step to deprive a person of the right to institute proceedings. Of course, the right is not deprived completely, Jabbar will have the entitlement to seek leave to institute proceedings under s 14 Vexatious Proceedings Act 2008 (NSW).

13. [64]

    I accept that Gade has been exposed to considerable litigation and expense. However, not all of that litigation has been unjustified, although much of it has.

14. [65]

    As set out in s 8(7) of the Act, the Court has a broad discretion as to the orders that may be made which include:

15. [66]

    In considering any order that should be made, it is relevant to have regard to the purpose of a vexatious proceedings order which was explained by the Court in Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [56] as follows:

16. [67]

    In the end, it is necessary to examine each of the proceedings in which Jabbar was involved in order to determine whether any, some or all are vexatious proceedings as that term is defined in the Act.

17. [68]

    In so far as the Federal Court is concerned, Jabbar has a habit of responding to decisions, orders or statements that she does not like by:

    1. (1)

       Appealing against even case management orders that do not suit her;

    2. (2)

       Lodging stay applications and appeals generally that have no reasonable prospects of success;

    3. (3)

       Corresponding directly with the Court including making false and unfounded allegations of improper conduct on the part of the judicial officer; and

    4. (4)

       Accusing judicial officers of actual or apprehended bias.

18. [69]

    In this Court in Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660, Jabbar filed a statement of claim in the Supreme Court of New South Wales, in which she sought damages against Gade for five claims of assault and battery. Gade admitted one of the assaults. On 16 December 2021, Walton J ordered that Jabbar had established liability with respect to the assault on 2 March 2013 and $7,000 of damages were awarded. Walton J rejected the remaining claims brought by Jabbar based on the first, second, fourth and fifth assaults. I accept that Jabbar had some success in these proceedings.

19. [70]

    She has also had a measure of success as she had a loss in the Local Court that was overturned on Appeal in the District Court. Jabbar sought to issue a Court Attendance Notice (CAN) with the Belmont Local Court.

20. [71]

    That set out allegations against Gade seeking to issue a charge of perjury and doing an act to pervert the course of Justice. On 15 July 2020, Jabbar appeared before the Magistrate at Local Court Belmont. At T2.42-47 the following exchange occurred:

21. [72]

    She also raised the “fake evidence” issue. His Honour in his ex tempore Judgment stated (T3.43-4.2):

22. [73]

    On 30 April 2021, Jabbar had lodged an apprehended domestic violence order against Gade. It was heard in the Local Court, Belmont. The Magistrate dismissed the application on the basis that the AVO’s had been ventilated somewhere else (T34). Her Honour made a written recommendation to the Attorney General of NSW pursuant to s 8(6) of the Vexatious Proceedings Act for a declaration.

23. [74]

    As previous stated at [51] of this Judgment, in Jabbar v Gade (No 2) (pseudonyms) [2021] NSWSC 1660, Jabbar filed a statement of claim in the Supreme Court of New South Wales, in which she sought damages against Gade for five claims of assault and battery. Gade admitted one of the assaults. On 16 December 2021, Walton J ordered that Jabbar had established liability with respect to the assault on 2 March 2013 and $7,000 of damages were awarded. Walton J rejected the remaining claims brought by Jabbar based on the first, second, fourth and fifth assaults. I accept that Jabbar had some success in these proceedings.

24. [75]

    I am satisfied that she has frequently instituted and conducted vexatious proceedings in the Federal Court. So far in the Courts of New South Wales she has had some measure of success. As I said earlier.

25. [76]

    At this stage, I am not satisfied that it is appropriate to make the order prohibiting Jabbar from instituting proceedings in New South Wales pursuant to s 8(7)(b) of the Act. However, if Jabbar continues to bring proceedings in NSW Courts and Tribunals that cover the same subject matter as she did in the Federal Courts and in NSW Courts and Tribunals, it is my view that the Attorney General should consider taking steps to seek to have her declared vexatious.

Costs

1. [77]

   Costs are discretionary. Costs follow the event. The plaintiff was unsuccessful in that her summons has been dismissed. The defendant was also unsuccessful in having the plaintiff declared vexatious. In these circumstances the appropriate order for costs is that each party pay their own costs.

   1. (1)

      The summons filed 11 April 2022 is dismissed.

   2. (2)

      Each party is to pay their own costs.