Golden v Howard

Mr Golden, the plaintiff, strongly believes that the Commercial Horse Assistance Payment Scheme (CHAPS) established by the Commonwealth Government in 2007 for the purposes of providing a form of compensation to horse trainers and horse owners adversely affected by equine influenza virus was fraudulently exploited or maladministered, including by those associated with Racing NSW. He also believes that, because of his attempts to expose that fraudulent exploitation or maladministration, he has been dealt with unfairly and his rights and interests as a horse breeder and trainer have been damaged or destroyed. Mr Golden has provided a significant amount of material which he believes establishes his claims of fraudulent exploitation or maladministration of the CHAPS and the loss and damage he has suffered as a result of attempting to expose the exploitation or maladministration. He fervently desires to have issues of whether the CHAPS was exploited or maladministered investigated by some proper authority.

This Court is not, however, the authority which can conduct such a broad-ranging investigation in the course of these proceedings.

This Court administers the common law system of adversarial trial which inherently involves a trial conducted by an independent and impartial tribunal, in this case, a judge. As a result, this Court is not able to conduct a general investigation of Mr Golden’s concerns for the reasons explained recently by the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (GLJ) at [19]-[20] as follows:

Thus, this Court cannot perform the function of making claims and identifying material facts on which the plaintiff should rely nor can it engage in an inquisitorial role and seek to remedy any deficiencies in the plaintiff’s case. Most significantly, the Court cannot conduct an investigation or examination of the events surrounding the CHAPS on behalf of society at large. This Court can only determine, in accordance with law including the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the issues properly brought before it in relation to causes of action against the defendants named in these proceedings, Mr John Howard and Mr Tony Burke.

I have reached the conclusion, for the reasons set out below, that the proceedings should be dismissed. This is not because I have formed any view as to those more general matters which Mr Golden wishes to have investigated.

Mr Golden has brought the present proceedings against two defendants by filing a statement of claim on 28 February 2023. As I understand it, Mr Golden relies on the fact that Mr Howard was the Prime Minister of Australia when the CHAPS was established and until the general election in late 2007, and Mr Burke became the Commonwealth Minister responsible for the CHAPS after that general election.

By notice of motion filed 24 April 2023, the two defendants, Mr Howard and Mr Burke, seek to have the whole of the proceedings against them dismissed pursuant to r 13.4(1) of the UCPR. In the alternative, the defendants have sought to have the whole of the statement of claim filed on 28 February 2023 struck out pursuant to r 14.28(1) of the UCPR. In the further alternative, the defendants seek that the proceedings be stayed. The defendants also seek costs of the motion and the proceedings and that those costs be paid in a specified gross sum instead of the costs being assessed.

It can be noted at this point that the two defendants, in their notice of motion, have also sought orders under the Vexatious Proceedings Act 2008 (NSW) prohibiting Mr Golden from instituting further proceedings without leave or, alternatively, an order restraining Mr Golden from instituting similar proceedings until any costs are paid.

In order to avoid any potential perception of pre-determination, I indicated to the parties that I would determine the summary dismissal and related aspects of the notice of motion first. The vexatious proceedings aspects of the motion can then be considered, if necessary, at a later time. There was no objection to my taking this course.

The background to the issues which the plaintiff seeks to raise, or have investigated, in the present proceedings was summarised, adequately for present purposes, by Cavanagh J in Golden v Koffel [2021] NSWSC 739 at [5]-[8] as follows:

These are not the first proceedings Mr Golden has brought in relation to the CHAPS and Mr Golden’s interactions with Racing NSW among others. The other proceedings have included the following:

The defendants seek to have the proceedings dismissed under UCPR r 13.4 and the statement of claim struck out under r 14.28.

Rule 13.4 of the UCPR provides:

Rule 14.28 deals with the related matter of striking out a pleading and is relevantly in the following terms:

The general approach to be adopted in relation to applications under provisions such as rr 13.4 and 14.28 was stated by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 in the following terms at [57]:

More particularly, a reasonable cause of action will not be disclosed for the purposes of r 13.4(1)(b) and r 14.28(1)(a) unless the material facts necessary to constitute a complete cause of action are pleaded and the cause of action, when considered only in light of the allegations of fact contained in the challenged pleading, has some chance of success: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101: (1999) 165 ALR 409 at [23]–[25] (Weinberg J) (noting that the Federal Court Rules at that time, quoted at [20], were in a form substantially similar to the relevant provisions of the UCPR).

Nonetheless, on a summary dismissal application the Court is not to look simply to the form a plaintiff’s claim may take but the substance disclosed within it. Consequently:

In the context of r 13.4(1)(a) and (c) and r 14.28(1)(c), the concepts of “vexatious” and “abuse of process” are not necessarily distinct and they tend to overlap. “Vexatious” refers to proceedings that are productive of serious and unjustified trouble or harassment: Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491; [2002] HCA 10 at [25] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) citing Oceanic Sun Line Special Shipping Company Inc v Fay (1998) 165 CLR 197; [1998] HCA 32 at [6] (Wilson, Brennan, Deane, Toohey and Gaudron JJ). Vexatious proceedings can also be instances of proceedings that are an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ); [1993] HCA 77.

What amounts to an “abuse of process” in this context does not lend itself to exhaustive statement: UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 (UBS) at [1] (Kiefel CJ, Bell and Keane JJ), [61] (Gageler J, as his honour then was, agreeing). Relevantly, an abuse of process may arise in various situations including where:

Further, an abuse of process based upon attempting to raise issues in successive proceedings may be found even in a case where the claims sought to be litigated are arguable, the defendant has not been called upon to defend them, and delay has not made their fair trial impossible: UBS at [41], [44], [59] and [61].

As I said in Dickson v Commissioner of the Australian Federal Police [2019] NSWSC 1293 (in relation to which leave to appeal was refused in Dickson v Commissioner, Australian Federal Police [2020] NSWCA 125; 381 ALR 364) at [105], in a case like the present determining whether conduct amounts to an abuse of process requires the Court to make a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it issues which could have been raised before. In this context, the overriding purpose of the UCPR set out in s 56 of the Civil Procedure Act 2005 (NSW) is relevant as an indication of the wider public interest that must be taken into account.

For the purposes of UCPR r 14.28(1)(b), “embarrassment” relates, in essence, to whether the pleading can serve the function of a pleading under the UCPR, namely, in succinct fashion to put the defendant properly on notice of the real substance of the claim made against it so that the defendant knows what case it has to meet. Consequently, a pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim: Szanto v Bainton [2011] NSWSC 985 at [107] (Ward J, as her Honour then was); Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [21] (Burley J) (noting that the relevant Federal Court Rules there cited were in a form substantially similar to the relevant provisions of the UCPR).

These general principles have guided the Court in determining whether Mr Golden’s statement of claim filed on 28 February 2023 should be struck out and his proceedings dismissed.

Since Mr Golden was not represented by a solicitor, his statement of claim was required to be in the form prescribed by UCPR form 3B.

As prescribed by from 3B, the statement of claim contained a section headed “Type of claim” which stated:

Having regard to the rest of the statement of claim this was, at best, a misdescription and was misleading.

Under the heading “Relief claimed”, there were 18 prayers for relief in which Mr Golden sought:

Under the heading “Pleading and Particulars” in the statement of claim, there were 86 paragraphs, some of which make allegations of serious criminal and other conduct including embezzlement or fraud on the part of persons other than the defendants. Other paragraphs made allegations of failure by various persons including Commonwealth and State Ministers, other than the defendants, to investigate the criminal conduct alleged by Mr Golden. The paragraphs which refer to at least one of the defendants in the present proceedings, provide context or explain the damages claimed by the plaintiff are set out below in full, otherwise the substance of the matters alleged is set out italicised and in square brackets:

Prayer 15 of the relief claimed identified two torts allegedly committed by the two defendants, namely deceit and negligence as well as alleging that other unspecified torts were committed by them. No other causes of action against the two defendants were specifically identified.

In Magill v Magill (2006) 226 CLR 551; [2006] HCA 51 (Magill), the High Court identified the elements of the tort of deceit as follows, at [114] (Gummow, Kirby and Crennan JJ):

In order for a pleading to disclose a reasonable cause of action in deceit, allegations satisfying each of those elements must be pleaded. In Magill at [114], the High Court noted that the need to satisfy each element of the tort of deceit has always been strictly enforced, because fraud of this nature is such a serious allegation.

Mr Golden’s statement of claim did not allege that either of the two defendants made a false representation, knowingly or carelessly, with the intention of Mr Golden relying on it. Nor was it alleged that Mr Golden acted in reliance on any such representation by either defendant or that the loss or damage claimed was caused by his reliance on such a false representation.

Furthermore, Mr Golden did not point to any material, in the statement of claim or otherwise, which suggested that he could plead each of the elements of such a cause of action, if given the opportunity to replead.

The pleading of a reasonable cause of action in negligence requires that allegations sufficient to establish each of the elements of that cause of action are set out in the statement of claim. The elements of the tort of negligence at common law can be described, based on what was said by McHugh J Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 (Tame) at [88] in conveniently simple terms sufficient for present purposes, as follows:

In Mr Golden’s case, however, attention must also be paid to the relevant provisions of the Civil Liability Act 2002 (NSW), in particular ss 5B and 5C, when considering whether a reasonable cause of action has been pleaded. This follows form the fact that Mr Golden’s claim is not excluded from the operation of the Civil Liability Act by any provision of s 3B of the Act.

Sections 5B and 5C are directed to questions of breach of duty: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48; at [13]. Those sections provide:

In general terms and apart from the reference to Mr Burke being allegedly “negligent” in prayer 3 and “negligence” in prayer 15, there was nothing in the statement of claim which amounted to a viable attempt to plead a claim in negligence against the two defendants relating to the loss allegedly suffered by Mr Golden. It was not alleged that either of the defendants owed him a duty of care, nor were there any allegations which would have supported a conclusion that such a duty was owed. There was no allegation that either of the defendants breached a duty of care owed to Mr Golden by failing to take precautions that a reasonable person in the defendants’ position would have taken against any identified risk of harm. Nor was there any allegation that any such breach caused the loss and damage claimed to have been suffered by Mr Golden. Nonetheless, it is appropriate to consider the underlying substance of Mr Golden’s claim in negligence, before concluding whether it should be dismissed without proceeding to trial.

In determining whether the first element, the existence of a duty of care owed by the defendants to the plaintiff, was or could have been pleaded, careful attention is usually required to be given to the facts, matters and circumstances which upon the plaintiff relies to give rise to that duty, if the duty is not one which falls into an accepted or recognised category of duty. In Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59, in considering whether a duty of care relied upon by a plaintiff existed, the High Court said at [50]:

As noted above, Mr Golden’s statement of claim did not expressly identify any duty of care alleged to have been owed by either of the defendants to the plaintiff in relation to the operation or administration of the CHAPS. Nor did it specifically allege that such a duty arose out of any facts pleaded in the statement of claim. Furthermore, the plaintiff’s claim for negligence occasioning economic loss was not based on any accepted or recognised duty of care owed to a person in the plaintiff’s position by someone in the positions of the two defendants. In these circumstances, the claim in negligence against the two defendants involved what can be described as a novel duty of care, which would necessitate consideration of principles such as those formulated in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 (Stavar) concerning the appropriate multifactorial approach.

The Court of Appeal has held that ““[i]t is often, though not always, inappropriate to dismiss summarily a claim [alleging a novel duty of care] on the pleadings, at least [where the parties] stand at an early stage in litigation.”: New South Wales v Spearpoint [2009] NSWCA 233 at [26] (Allsop ACJ, Beazley JA agreeing).

In the present case, in the absence of specific allegations relating to factors which should be considered under the multifactorial approach in Stavar, it is difficult to conclude that it would be open to the plaintiff upon the pleading provided to prove at trial facts which would give rise to a duty of care of the requisite type. Indeed, a consideration of the some of the salient factors features identified in Stavar at [103] suggests that a duty of care would not readily be found to arise in the present case. Those factors include the foreseeability of harm, the degree of control able to be exercised by the defendants as Prime Minister and a Minister over the administration of the CHAPS to avoid harm to a person in Mr Golden’s position, the degree of vulnerability of the plaintiff to harm from the defendants, the degree of reliance of the plaintiff on the defendants, the lack of relational or other proximity of the plaintiff to the defendants, the nature of the activity undertaken by the defendants as Prime Minister and a Minister in relation to the CHAPS, the degree of hazard liable to be caused by the defendants’ conduct relating to the CHAPS and the existence of conflicting duties on the defendants.

Nonetheless, while there may be significant problems with Mr Golden’s pleading of the existence of a duty of care, in my view, the application should not be decided solely on basis that he has failed to plead allegations that would support the existence of a duty of care which might be recognised at law and that there is no reasonable prospect that he could do so.

A further element which must be pleaded is breach of duty. Sections 5B and 5C of the Civil Liability Act are directed to the related questions of breach of duty and the standard of care required to satisfy that duty. In this context, Garling J observed in PWJ1 v The State of New South Wales [2020] NSWSC 1235, at [57]:

The Court of Appeal in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 held, at [7] (Basten JA), that:

Mr Golden’s pleading does not specifically identify the relevant risk of harm for the purposes of alleging a breach of duty or for the purposes of s 5B.

From the references in the statement of claim to the damage allegedly suffered by Mr Golden, it appears that the “twelve years denied income 2011-2023” and any loss of his “home & business [as a horse breeder and trainer]” (both referred to in par 84 of the pleadings) were suffered as a result of action on the part of Racing NSW including:

Racing NSW’s alleged motivation for doing so was disclosed, in effect, in prayer 8, in which Mr Golden sought “[a] declaration that defendants Commonwealth RN Agent Bullied, abused & bankrupted plaintiff for reporting CHAPS fraud & and widespread frauds in 2010” and in various paragraphs of the pleadings including, for example, par 52. These indicated that Mr Golden’s allegation was in substance that he was deprived of his livelihood as a breeder and trainer by Racing NSW’s actions because of his attempts to expose what he believed to be fraud on the part of Racing NSW.

Mr Golden then sought to have liability for this alleged conduct of Racing NSW sheeted home to the two defendants on the basis that Racing NSW was the Commonwealth’s “agent”, as referred to, for example, in prayers 8 and 9. It was then further, in effect, alleged that the defendants were responsible for the torts of the Commonwealth’s “agent”, Racing NSW, because the ”two defendants listed today played parts in RN $110m or greater theft” (pleading par 82). Significantly, it was not alleged that the two named defendants played a part in any action taken by Racing NSW specifically in relation to Mr Golden.

Given what appears to be the substance of Mr Golden’s claim for his particular loss and damage, as opposed to any loss suffered by the Commonwealth as a result of fraudulent or mismanaged claims under the CHAPS, it does not appear to be feasible to formulate a relevant risk of harm against which it could properly be alleged a reasonable person in the position of either of the two defendants would have taken precautions. Similarly, it is difficult to perceive that allegations could properly be made that either of the two defendants breached any relevant duty of care in the circumstances which appear to underly Mr Golden’s claim for his loss and damage. It does not appear that there is a proper pleaded, or available, basis for alleging that Racing NSW was the agent of the Commonwealth in relation to the alleged actions taken by Racing NSW against Mr Golden because he reported allegedly fraudulent conduct in relation to the CHAPS to Racing NSW. Nor is there any proper pleading or basis for the conclusion that, even if Racing NSW were the Commonwealth’s agent for those purposes, either of the two defendants would be vicariously or otherwise liable for any tortious conduct of Racing NSW for which the Commonwealth was liable.

Accordingly, I do not accept that the statement of claim discloses any sufficient pleading of the breach of duty and risk of harm element of the tort of negligence. Nor can it be concluded that such an element could be pleaded, given the nature and circumstances of the loss and damage allegedly suffered by Mr Golden.

The final element which Mr Golden was required to plead was a causal connection between the damage sustained and the breach of duty, which damage was not too remote from the breach. There was no such express pleading in the statement of claim.

Furthermore, if, as appears to be Mr Golden’s case, his loss and damage, as opposed to any loss suffered by the Commonwealth, was the result of Racing NSW’s imposing “a life time training ban” and refusing to renew his licence, it is difficult to perceive how any relevant causal connection could be pleaded or established between conduct of either of the defendants in breach of a relevant duty of care and the loss and damage claimed. The specific actions or involvement of either defendant which are pleaded would not support such a conclusion. This fundamental difficulty with the statement of claim can be illustrated by examples taken from the prayers for relief including the following.

There was no other material identified by Mr Golden which could support the conclusion that he had pleaded or could plead the causation element of the tort of negligence in respect of the loss and damage claimed by him or that such loss and damage was not too remote.

In summary, Mr Golden did not plead, adequately or at all, the required elements of a claim in negligence against either defendant and did not point to any other material which would provide any substantial support for the required elements: that a relevant duty of care was owed by either defendant to him; that even if there were such a duty, either defendant breached that duty by failing to take precautions which a reasonable person in their positions would have taken against the relevant risk of harm; or, that any such breach of duty caused the loss and damage claimed to be suffered by Mr Golden.

The pleadings indicate that Mr Golden’s case specifically against the two defendants essentially involved contentions that:

These contentions did not appear to me to provide a foundation for concluding that any other relevant tortious liability was, or could be, pleaded by Mr Golden.

Even allowing for the fact that Mr Golden was not a lawyer and had not, up to this point in the proceedings been represented, I could not discern from the material to which he drew attention or from his submissions that there was likely to be any viable tortious claim which he had pleaded or could plead against either of the two defendants, if he were given the chance to replead, whether in deceit, negligence or any other tort. That is not to say that there may not have been some fraudulent or otherwise tortious conduct by persons other than the defendants involved in the CHAPS during 2007 and 2008 or later. That is a matter about which I can express no view, because Mr Golden has not named those other persons as defendants, they have not been given an opportunity to be heard on this or any other relevant application and some of the allegations made by Mr Golden against those other persons are very serious. It is to be noted that allegations in a pleading of any fraud upon which a plaintiff relies must be pleaded with precision and, under UCPR r 15.3, particulars of the fraud must be given. Furthermore, at any trial of proceedings, allegations of fraud would need to be proved to the requisite standard, taking into account the matters referred to in s 140(2) of the Evidence Act 1995 (NSW) where relevant.

For all of these reasons, I am of the view that Mr Golden’s statement of claim discloses no reasonable cause of action against the two named defendants, for the purposes of UCPR r 14.28(1)(a), and that no reasonable cause of action is disclosed in the proceedings against those defendants, for the purposes of UCPR r 13.4(1)(b). Furthermore, given the pleadings and the material to which Mr Golden has directed my attention, I am satisfied that, in respect of the two defendants, there is no reasonable cause of action which could be pleaded by him even if leave to replead were given.

Many of the allegations in the pleadings and some of the prayers for relief involve very serious allegations against persons not named as defendants and some are confusing and quite unclear as to what precisely is being alleged against whom. These deficiencies are likely to have the consequence that the proceedings, if they proceeded, would be characterised by substantial delay and would be productive of serious and unjustified trouble or harassment, not only to persons named as parties but also to other persons whose conduct is impugned in intemperate language often without any appropriate identification of how the defendants would be legally liable in relation to that conduct. Examples of the problematic allegations and language are spread throughout the prayers for relief and pleadings and particulars in the statement of claim, and these have been quoted in full or summarised above. It is unnecessary to repeat them here.

In addition, given the terms in which the claims for relief and the pleadings and particulars are expressed, it can be concluded that some parts are unintelligible, ambiguous, or so imprecise that the defendants are not properly informed of the substance of the case they are required to meet.

Furthermore, as noted in the table provided at [11] and as implicitly accepted by Mr Golden in par 82 of the pleadings, he has attempted to raise essentially the same underlying issues in a significant number of earlier proceedings in this Court which have been unsuccessful, except for the setting aside in Golden v V’landys [2016] NSWCA 300 of the decision of Mr V’landys of 24 June 2011 to warn off the plaintiff from all race tracks controlled by Racing NSW. In my view, Mr Golden’s attempts to raise these issues in successive proceedings is contrary to the principles of finality and the timely and efficient administration of civil justice.

In these circumstances, I am satisfied that the proceedings are vexatious and involve an abuse of process and that the statement of claim has a tendency to cause embarrassment, prejudice and delay.

In determining whether to dismiss these proceedings I have considered the most appropriate way in which to give effect to the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In doing so I have paid particular attention to the objects set out in s 57 of that Act: the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of resources; and, the timeliness and cost of the proceedings. I have also had regard to the dictates of justice including, in addition to ss 56 and 57, the use that Mr Golden has made in these and previous proceedings of the opportunity to pursue a claim against these and other defendants and the degree of injustice in the circumstances that would be suffered by Mr Golden and by the two named defendants as a consequence of any order made in these proceedings.

Even bearing in mind the caution which should be exercised in dismissing proceedings summarily under UCPR r 13.4(1), I am nonetheless persuaded that it is appropriate in all the circumstances to dismiss these proceedings for failing to disclose a reasonable cause of action against either of the two defendants. As noted above, not only has Mr Golden failed in the statement of claim to plead any reasonable cause of action against either defendant in respect of the loss and damage allegedly suffered by him, he has not identified any substantial material which would indicate that he has any reasonable prospect of being able to plead such a cause of action, if given a further opportunity to do so.

In addition, in light of the other matters dealt with above, I am also of the view that these proceedings are vexatious and an abuse of process and the statement of claim has a tendency to cause embarrassment, in the technical sense explained above, as well as prejudice and delay. These deficiencies infect almost every substantive aspect and paragraph of the statement of claim. For these reasons and independently from whether any reasonable cause of action is disclosed in the proceedings, in my view, the statement of claim should be struck out as being embarrassing and the proceedings should be dismissed as an abuse of process and vexatious.

Since the proceedings are to be dismissed, it is unnecessary formally to strike out the statement of claim.

On a number of occasions after the hearing of the matter was completed and I had reserved my decision, Mr Golden provided additional material to my Associate by email, copied to the solicitor for the defendants. The Court is entitled to refuse to accept that material and to disregard it entirely. It is a misconceived impression that parties may file supplementary material after the conclusion of oral argument, without leave being given beforehand; the hearing is the time and place to present evidence and argument, whether written or oral: Kuruppu v R [2021] NSWCCA 261 at [223] (Wright J, Meagher JA and Fagan J agreeing) citing Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 258; [1981] HCA 20. As no leave was granted to provide further material, I have not viewed or taken the material provided into account.

The defendants have been entirely successful and, in the ordinary course, costs would follow the event. The defendants have, however, sought a gross sum costs order and Mr Golden is not represented. In these circumstances, I propose to stand over the question of costs and the further consideration of the remaining aspects of the notice of motion for directions on a date which will give the parties time to consider these reasons before being required to make submissions on those matters.

For these reasons, the orders of the Court are: