Golden v Howard

1. [1]

   WARD P: I agree with Payne JA.

2. [2]

   PAYNE JA: The appellant, Mr Golden, brought proceedings in the Common Law Division of the Supreme Court against the respondents, the former Prime Minister of Australia, Mr John Howard, and a current Minister, Mr Tony Burke, making various allegations about the administration of the Commercial Horse Assistance Payment Scheme (“CHAPS”). CHAPS was established by the Commonwealth Government in 2007 for the purposes of providing compensation to horse trainers and horse owners adversely affected by Equine influenza virus. CHAPS was introduced by the government led by Mr Howard, prior to the election in 2007 and continued by the Government which replaced Mr Howard’s government, in which Mr Burke was a Minister.

3. [3]

   By notice of motion filed on 24 April 2023, the respondents sought orders dismissing the proceedings and against Mr Golden under the Vexatious Proceedings Act 2008 (NSW). In Golden v Howard [2023] NSWSC 1418, Wright J dismissed proceedings brought by Mr Golden against the same respondents as an abuse of process and vexatious pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). In this Court, Mr Golden complained that Wright J failed to address two notices of motion he had filed, one seeking a jury trial and one seeking extensive discovery. As the respondents correctly pointed out, however, Wright J determined to deal first with their application to dismiss the whole proceedings. On the correct construction of Wright J’s order dismissing the proceedings, any earlier notices of motion filed by Mr Golden in the proceedings were also thereby dismissed. On 6 December 2023, Wright J made the following orders:

4. [4]

   In Golden v Howard (No 2) [2024] NSWSC 172, Wright J made a gross sum costs order in respect of the proceedings.

5. [5]

   As I have said, in the motion filed on 24 April 2023, the respondents also sought orders under the Vexatious Proceedings Act prohibiting Mr Golden from instituting further proceedings relating to the same subject matter without leave. In order to avoid any potential perception of pre-determination, Wright J decided first to determine the summary dismissal application. The application for orders under the Vexatious Proceedings Act was deferred to a later time. There was no objection by any party to Wright J taking that course.

6. [6]

   The respondents’ application for orders under the Vexatious Proceedings Act ultimately came before Rothman J. In Golden v Howard & Anor [2024] NSWSC 1229, the primary judge made the following order (Order 2) against Mr Golden under s 8 of the Vexatious Proceedings Act 2008 (NSW):

7. [7]

   It is to be noted that Rothman J also made an order (Order 1) under r 13.4(1) of the UCPR dismissing the whole of the proceedings, despite the fact that Wright J had already made such an order. The respondents accepted that this superfluous order should be set aside and consequential amendments made to Rothman J’s costs order (Order 3). The making of the superfluous order under r 13.4(1) of the UCPR by Rothman J does not, however, affect the balance of his Honour’s reasons relating to the Vexatious Proceedings Act which is the subject matter of this application for leave to appeal.

Mr Golden’s complaints in overview

1. [8]

   Mr Golden’s complaints all have at their heart allegations he has been making for many years of fraud in the administration of CHAPS. Mr Golden strongly believes that CHAPS was maladministered principally (but not exclusively) by members of the Board of Racing NSW, including Mr V’landys (CEO of Racing NSW), Mr McGauran (from the Board of Racing NSW) and Mr Sweney (general counsel for Racing NSW). Mr Golden believes that a variety of Commonwealth and State ministers, including the two respondents, are ultimately responsible in some way for this maladministration. The legal basis for this alleged responsibility has never been made clear. In one sense, Mr Golden embraces the conclusion that the precise basis of any legal liability is unclear. Mr Golden asserts that this Court is obliged in those circumstances to conduct an investigation into the possible maladministration of CHAPS. Mr Golden also believes that, because of his attempts to expose the fraudulent exploitation or maladministration of CHAPS, 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 CHAPS and the loss and damage he has suffered as a result of attempting to expose the exploitation or maladministration of the scheme. Mr Golden fervently desires to have issues concerning whether CHAPS was exploited or maladministered investigated.

2. [9]

   Mr Golden has commenced numerous proceedings in the New South Wales Supreme Court, the Court of Appeal and the High Court of Australia seeking to vindicate his claims of serious fraud committed in the administration of CHAPS. In every iteration of Mr Golden’s complaint, the same central cast of alleged participants in the maladministration of CHAPS, including Mr V’landys, Mr McGauran and Mr Sweney, is identified. As time has gone on, Mr Golden has added to his central complaint the politicians involved in the establishment and administration of CHAPS, such as the present respondents, later premiers of NSW (particularly to the extent they were involved in any issues related to horse racing), federal and state police officers, who allegedly failed properly to investigate allegations made by Mr Golden, judges of this Court who have rejected Mr Golden’s claims and the Australian National Audit Office who allegedly failed to uncover and prosecute those responsible for what Mr Golden says is a fraud on the public involved in the administration of CHAPS. Mr Golden described the National Anti-Corruption Commission and the NSW Independent Commission Against Corruption (to which bodies he has made complaints about CHAPS) as being “merry-go-round operators”. Mr Golden submitted that as a result, the investigation and resolution of the issues raised by Mr Golden “will sit on [the NSW Court of Appeal’s] desk, because it's been [on] mine for the last 18 years”.

3. [10]

   This Court operates as part of the adversarial system of justice and is not able to conduct a general investigation of the kind sought by Mr Golden for the reasons explained by the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 as follows:

4. [11]

   I am conscious that Mr Golden asserts that he has demonstrated maladministration in the operation of CHAPS, for example in what he says is evidence of payments being made under the scheme after the time that payments should have been made and in respect of horses whose owners and trainers were for various reasons ineligible to receive payments. Mr Golden asserts that $170 million has been paid away by the Commonwealth without authority as part of what he says is an “embezzlement scheme”. Mr Golden says that he has uncovered matters warranting grave suspicion about financial statements of CHAPS. Mr Golden asserts that this evidence has been ignored or misunderstood by the numerous judicial officers who have considered his claims. As I will explain, however, despite numerous opportunities to explain how it is that the evidence he has presented gives rise to an arguable claim for relief against any identified person or entity, Mr Golden seeks, instead, that this Court conduct an investigation or examination into CHAPS on behalf of society at large. This is not something that this Court can do.

Primary judgment

1. [12]

   The evidence before the primary judge consisted, for the respondents, of the affidavits of John Pavlakis, affirmed 24 April 2023 and 20 June 2023 and for Mr Golden, of his own affidavits sworn 2 May 2023 and 5 July 2023.

2. [13]

   The primary judge found that the plaintiff had, since 2018, initiated eight vexatious proceedings based on the same underlying grievances relating to alleged maladministration of the CHAPS scheme, all of which were dismissed. These proceedings made allegations about a wide range of individuals, including Racing NSW, politicians, solicitors, and others, alleging systemic fraud and corruption in the management of CHAPS.

3. [14]

   The primary judge concluded that Mr Golden had frequently instituted or conducted vexatious proceedings in Australia. His Honour made the order under the Vexatious Proceedings Act set out at [6] above. Mr Golden may still seek leave to commence future proceedings, but only if they are properly framed and disclose a valid cause of action.

Leave to appeal

1. [15]

   Mr Golden sought leave to appeal against the order made by Rothman J under s 8 of the Vexatious Proceedings Act. Despite the breadth of Mr Golden’s written and oral submissions, the only question before the Court is whether Rothman J erred in making the order.

2. [16]

   The evidence before the Court on the application for leave to appeal comprised that which was led below being the affidavits of John Pavlakis, affirmed 24 April 2023 and 20 June 2023 and Mr Golden sworn 2 May 2023 and 5 July 2023. In addition, Mr Golden added, without leave, the following materials to the White Folders (the descriptions are taken from the index to the White Folders):

   1. (1)

      Affidavit not in 27 Feb books – filed 15 March 2023.

   2. (2)

      Affidavit FILED Post hearing – filed 4 March 2024.

   3. (3)

      Affidavit FILED Post hearing – filed 11 March 2024.

   4. (4)

      Affidavit NOT FILED returned – filed 11 March 2024.

3. [17]

   In addition, Volume 5 of the White Folder contained reports published by the NSW Parliament Select Committee on the Proposal to Develop Rosehill Racecourse:

   1. (1)

      Sep 2024 Rosehill Special report 1 – dated 30 September 2024.

   2. (2)

      Dec 2024 Rosehill Proposal report 2 – dated 6 December 2024.

4. [18]

   The second supplementary white folder includes “additional evidence on which the applicant seeks to rely”. It contains five documents which were apparently filed after the hearing in the courts below:

   1. (1)

      A document titled ‘V’Landys Australia Day 2014’ – date unknown.

   2. (2)

      An email from the Select Committee on the Proposal to Develop Rosehill Racecourse attaching the NSW Government response to the inquiry of the Select Committee into the Proposal to Develop Rosehill Racecourse – dated 6 March 2025.

   3. (3)

      An email from the applicant to the Independent Commission Against Corruption and others attaching correspondence – dated 13 March 2025.

   4. (4)

      An email from the applicant to various NSW Parliamentary officials – dated 17 March 2025.

   5. (5)

      An email from the applicant to Mr Andy Schmulow (University of Wollongong) attaching correspondence – dated 20 March 2025.

5. [19]

   During the hearing in this Court on 11 April 2025, Mr Golden also handed up a 13-page document which he described in oral submissions (pages 22-25 of the transcript). The document comprised:

   1. (1)

      An Australia Post receipt (allegedly of a document sent to ICAC) dated 1 April 2025.

   2. (2)

      An email from Mr Golden to the CEO and Chairman of ABC dated 6 April 2025.

   3. (3)

      An email from Mr Golden to the CEO and Chairman of ABC dated 7 April 2025.

   4. (4)

      “Wins & Placings” information about Cross Swords, a horse from New Zealand (said to be relevant to maladministration of another horse racing incentive scheme “BOBS”).

   5. (5)

      “Wins & Placings” information about Deny Knowledge, a horse from Ireland (said to be relevant to maladministration of another horse racing incentive scheme “BOBS”).

   6. (6)

      An email from Mr Golden to members of the New South Wales Legislative Council (namely Mr Latham, Ms Hurst and Mr Farlow) and the Rosehill Racecourse Select Committee, copying a number of journalists and news services, dated 17 March 2025.

   7. (7)

      An email from Mr Golden to members of the New South Wales Legislative Council (namely Mr Latham, Ms Hurst and Mr Farlow) and the Rosehill Racecourse Select Committee, copying a number of journalists and news services, dated 12 March 2025.

   8. (8)

      An email from Mr Golden to the Associate of Wright J seeking access to information and enquiring about his case, dated 25 November 2023; and email response from the Associate to Mr Golden dated 27 November 2023.

   9. (9)

      A summary prepared by Mr Golden dated 8 April 2025 of what he considered the relevant facts.

   10. (10)

       Information on the TRB Licensing Department website showing the number of NSW Licensed horse trainers in the years 2000-2001, 2023-2024, as well as a list of current and past members of the Board of Racing NSW.

6. [20]

   At the outset of the hearing the presiding judge made clear that simply including material in the White Folders was not properly to tender that material as evidence in the appeal:

7. [21]

   No application was made to tender material not before the primary judge as evidence on the appeal. Given that Mr Golden is unrepresented, it is appropriate to regard all of the material in the White Folders which was not before the primary judge and the material which was handed to the Court as submissions made by Mr Golden and not as evidence.

8. [22]

   Having regard to the fact that this matter proceeded by way of concurrent hearing and that Mr Golden’s ability to conduct further proceedings about the same subject matter will be affected unless he succeeds in overturning the order made by the primary judge, leave to appeal should be granted. For the reasons which follow, however, I have concluded that the primary judge’s order made under the Vexatious Proceedings Act was correctly made and the appeal must be dismissed, save in respect of the superfluous order which the respondents agreed should be set aside with a consequent modification made to the costs order made by the primary judge I have explained at [7] above.

The Vexatious Proceedings Act

1. [23]

   Section 8 of the Vexatious Proceedings Act provides:

2. [24]

   It is not in dispute that the Supreme Court is an authorised court within the meaning of the section and that application was properly made, pursuant to the terms of s 8(4)(d), by a person entitled to make such an application.

3. [25]

   “Proceedings” are widely defined under s 4 of the Vexatious Proceedings Act and include each of the proceedings relied upon by the respondents before the primary judge and by his Honour in making the order under s 8 of the Act. As Kirk JA noted in Collier v Attorney General (NSW) [2023] NSWCA 273 at [43], it is “possible that a number of ‘proceedings’ may arise within the context of one case”.

4. [26]

   “Vexatious proceedings” are defined in s 6 of the Vexatious Proceedings Act to include:

5. [27]

   The Court may, having regard to the factors in s 8(2) of the Vexatious Proceedings Act, make a vexatious proceedings order under s 8(1) against a person where that person “frequently” institutes or conducts proceedings which satisfy any of the four criteria established by s 6.

6. [28]

   Section 5 of the Vexatious Proceedings Act is also significant:

7. [29]

   It is not in dispute that each of the proceedings relied upon by the respondents before the primary judge and by his Honour in making the order under s 8 of the Act was instituted by Mr Golden. As will be seen, each proceeding fell within the description in s 6 of the Vexatious Proceedings Act.

Relevant principles in making an order under the Vexatious Proceedings Act

1. [30]

   The principles in relation to the making of an order under s 8 of the Vexatious Proceedings Act have been extensively discussed by this Court.

2. [31]

   In Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [49], Leeming JA noted that the issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation, and in order to address whether the conduct was vexatious, it is necessary for the court to have regard in detail to the circumstances in which each of the relevant applications was made.

3. [32]

   In Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129, Leeming JA returned the question posed by the statutory test of “frequently” and described the quality of the proceeding which made it vexatious, and the nature of the proceeding itself, as informing the assessment of frequency. His Honour said:

4. [33]

   As to the proportion of proceedings “instituted or conducted” which are vexatious compared with proceedings “instituted or conducted” which do not meet that statutory description, Leeming JA found that whether the proportion of all proceedings instituted or conducted by the person which are vexatious is high or low does not bear upon that question. That proportion was, however, relevant to the exercise of discretion in making an order.

5. [34]

   The reference in s 6(a) of the Vexatious Proceedings Act to “proceedings that are an abuse of the process of a court” invokes that body of case law in relation to the doctrine of abuse of process: see, for example, UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45. Proceedings may amount to an abuse of process irrespective of the intention of the moving party: Victoria International Container Terminal Limited v Lunt (2021) 271 CLR 132; [2021] HCA 11 at [14], [18]-[23]; see also Collier v Attorney General (NSW) [2023] NSWCA 273 at [56]-[58]. This is reflected in the terms of s 6(d) of the Vexatious Proceedings Act.

6. [35]

   In Collier v Attorney General (NSW) [2023] NSWCA 273, this Court summarised the four steps of analysis necessary to determine whether to make an order against a person under s 8 of the Vexatious Proceedings Act:

7. [36]

   In Proietti v Proietti [2024] NSWCA 48, this Court emphasised that restraint should be exercised when considering making an order under the Vexatious Proceedings Act:

Consideration

1. [37]

   Despite being invited on numerous occasions to address what he said were the errors made by the primary judge in making the order under s 8 of the Vexatious Proceedings Act, Mr Golden chose in both oral and written submissions principally to focus on complaints about the underlying facts as he sees them; the role of Mr V’landys, Mr McGauran and Mr Sweney, the alleged maladministration of CHAPS, the “embezzlement scheme”, the failure of myriad politicians properly to investigate Mr Golden’s claims and the need for a thorough investigation of Mr Golden’s allegations by the Court. To the extent that the written and oral submissions can be understood as identifying appealable errors made by the primary judge, they appear to be the following:

   1. (1)

      that a number of judicial officers, including the primary judge, are corrupt, incompetent and have acted with bias towards Mr Golden. Mr Golden asserts, in writing, that some judicial officers belong in jail. In oral submissions, Mr Golden asserted “the last two judges, Justices Rothman and Wright, have decided to engage in perverting the course of justice by sweeping the first defendant's $170 million of a $235 million government approval package to people who were not entitled to it”;

   2. (2)

      that Mr Golden did not receive a fair hearing “let alone time to explain complexities to biased Judge” and that this arose, in some manner by reason of Mr Golden being in poor health at the hearing before the primary judge;

   3. (3)

      that the primary judge failed to have regard to the proceeding in which Mr Golden had been successful; and

   4. (4)

      that the primary judge failed to have regard to evidence of fraud on the part of Racing NSW and others associated with the horse racing industry.

2. [38]

   None of these complaints can be accepted. As to the first matter, there is simply no basis to assert that judicial officers, including the primary judge, have acted corruptly, incompetently or with bias towards Mr Golden. No material has been identified which could possibly justify such serious allegations. To the extent Mr Golden’s allegations can be understood, I reject them. It bears repeating that no matter how strongly a litigant feels that he or she is right, the rejection of the litigant’s case does not justify making allegations of serious criminal conduct with no foundation whatsoever.

3. [39]

   As to the second matter, the applicant was given an extensive opportunity to make written and oral submissions to the primary judge. His written submissions were 10 pages in length and filed in advance of the hearing. Mr Golden made extensive oral submissions over 17 pages of transcript. I do not discern from that transcript any inability on Mr Golden’s part fully to participate in the hearing before the primary judge. No application for an adjournment was made by Mr Golden on the grounds of ill health (or any other ground). I am satisfied that Mr Golden had an opportunity to be heard about the making of an order under s 8 of the Vexatious Proceedings Act, as s 8(3) requires.

4. [40]

   As to the third matter, for the reasons which are explained below, it was not an error of the primary judge to fail to take account of that proceeding in exercising his discretion. Although Mr Golden was successful in relation to one aspect of that proceeding, he was unsuccessful in claims that were repeated in subsequent proceedings. If anything, that lack of success reinforced the primary judge’s conclusions in relation to the proceedings he did find to be vexatious.

5. [41]

   As to the fourth matter, I do not accept that the primary judge overlooked or misunderstood “evidence of fraud” on the part of Racing NSW and others associated with the horse racing industry. Simply put, for reasons I tried to explain to Mr Golden during the hearing, it was no part of the function of the primary judge to conduct an investigation into the veracity of alleged “evidence of fraud” on the part of Racing NSW and others associated with the horse racing industry unless it was somehow relevant to the task his Honour was undertaking in deciding whether to make an order under s 8 of the Vexatious Proceedings Act. The primary judge paid close attention to the evidence advanced by Mr Golden in numerous cases about alleged maladministration in CHAPS. As I will explain, numerous judges have concluded that Mr Golden is unable to identify an intelligible cause of action against any person or entity based on what Mr Golden asserts is “evidence of fraud” on the part of Racing NSW and others associated with the horse racing industry. Whether or not Mr Golden’s allegations warrant further investigation by some body having the power to do so is not a matter before this Court. There was no error by the primary judge in how his Honour dealt with Mr Golden’s allegations.

6. [42]

   I turn now to address whether there was any error made by the primary judge in relation to any of the four steps of analysis necessary to determine whether to make an order against a person under s 8 of the Vexatious Proceedings Act.

7. [43]

   There was no dispute about the identification of the proceedings said to be vexatious. Produced below is a table of the eight proceedings identified by the primary judge as relevant to the application for an order under s 8 of the Vexatious Proceedings Act.

8. [44]

   Before addressing the eight proceedings identified by the primary judge as vexatious, it is first necessary to address the details of the one case in the Court where Mr Golden enjoyed a measure of success. In Golden v V’landys [2016] NSWCA 300 this Court allowed an appeal, in part, brought by Mr Golden. In May 2011, Mr Golden wrote letters to Racing NSW accusing Mr V’landys and other officers of Racing NSW of being corrupt and incompetent in relation to CHAPS. Between 23 and 25 May 2011, Mr Golden stood on the southern end of Grafton Bridge with a placard that read “RACING NSW CORRUPT CEO, ROBS TAXPAYERS”. On 30 May 2011, Mr Golden stood outside the office of Federal MP, Ms Jannelle Saffin, in Grafton and held a placard reading, “RACING NSW CORRUPT CEO ROBS TAXPAYERS” and “CHAPS PUBLIC AUDIT REPORTS $220,000,000 MISAPPROPRIATION PUBLIC ENQUIRY NEEDED”. In June 2011, Mr Golden’s horse trainer’s licence was suspended and on 24 June 2011, Mr Golden was “warned off” all racetracks under the control of Racing NSW indefinitely. Mr V’landys participated in the warning off decision. Mr Golden sought judicial review of Mr V’landys’ decisions on the bases of apprehended bias and improper purpose. Mr Golden’s complaint that the same conduct by Mr V’landys constituted the tort of misfeasance in public office was heard at the same time. The primary judge, Adamson J, dismissed Mr Golden’s case: Golden v V’landys [2015] NSWSC 1709.

9. [45]

   This Court upheld Mr Golden’s complaint that the warning off was affected by apprehended bias. This was because the relatively low threshold posed by the “double might” test in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 was satisfied by Mr V’landys exercising a power to decide an appropriate punishment for Mr Golden in circumstances where, at the same time, Mr V’landys was demanding that Mr Golden pay him damages and costs for engaging in the same conduct (concerning allegations about CHAPS) as was the subject of the decision to warn him off. The warning off decision was set aside and the matter was remitted to Racing NSW.

10. [46]

    Critically, however, this Court upheld the finding of the primary judge in Golden v V’landys [2015] NSWSC 1709 that Mr Golden’s complaints about improper purpose and misfeasance in public office were correctly dismissed. This is important as, in many subsequent cases, Mr Golden has sought again to allege improper purpose and misfeasance in public office against Mr V’landys based on essentially the same facts as were alleged in the 2015 and 2016 proceedings.

11. [47]

    Although his Honour‘s discussion of the issue was relatively brief, it is clear that it was determined globally that each of the eight proceedings identified in the table above was vexatious. In order to examine the conclusion of the primary judge that each of those proceedings was vexatious within the meaning of s 6 of the Vexatious Proceedings Act, it is thus necessary to descend in a little detail to each of the relevant proceedings.

12. [48]

    Mr Golden initiated proceedings against Mr David Littleproud who was for some time the Commonwealth Minister for Agriculture and Water Resources. Mr Golden alleged mismanagement and fraud related to CHAPS for which Mr Littleproud was in some way asserted to be responsible. A useful description of Mr Golden’s complaints is contained in the judgment of Harrison AsJ:

13. [49]

    By notice of motion, Mr Littleproud sought an order dismissing the proceedings under r 13.4(1) of the UCPR. Harrison AsJ found that Mr Golden had not identified an arguable cause of action, the proceedings were frivolous and vexatious and constituted an abuse of process. Her Honour dismissed the proceedings under r 13.4(1) of the UCPR.

14. [50]

    Her Honour considered whether she should exercise her discretion to permit Mr Golden to replead to overcome the difficulties in the current pleadings or dismiss those proceedings. Her Honour decided not to grant Mr Golden the opportunity to replead for the reason that Mr Golden is “unable or unwilling to articulate and properly plead a focussed case against the defendant”. Critically, for present purposes, although Mr Littleproud was the person sued by Mr Golden, the essence of Mr Golden’s complaint was directed towards “Mr V’landys and other officials from Racing NSW, NSW racing stewards, NSW police officers, members of NSW Parliament, former premiers of NSW, the current NSW Premier, Federal Members of Parliament, the Commonwealth Ombudsman, former holders of Mr Littleproud’s portfolio and former Prime Ministers of Australia.” That central complaint was the same one advanced in this Court in Mr Golden’s voluminous written submissions and White Folders of materials.

15. [51]

    This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.

16. [52]

    In these proceedings, Mr Golden sought to prosecute a number of causes of action against Racing NSW, and Mr V’landys. The defendants successfully applied to have Mr Golden’s statement of claim struck out under UCPR r 14.28(1) and the proceedings summarily dismissed under UCPR r 13.4(1).

17. [53]

    McCallum J summarised the background to the proceedings and found the statement of claim to be “prolix and confusing”. Her Honour explained that the pleading included passages lifted wholesale from the pleadings in the earlier proceedings, in which Mr Golden was legally represented, combined with lengthy additional commentary obviously written by Mr Golden himself. McCallum J found that Mr Golden’s claims were substantially identical to those in the 2015 and 2016 proceedings I have described at [43]-[45] above. McCallum J found:

18. [54]

    Racing NSW and Mr V’landys specified four grounds on which the statement of claim should be struck out. The first was that it sought judicial review of the 2011 decisions, which have already been judicially reviewed (see [43]-[45] above). McCallum J held that to the extent that the statement of claim sought to re-litigate the earlier application for judicial review of the 2011 decisions, it was plainly liable to be struck out.

19. [55]

    The second objection related to the part of the pleading seeking judicial review of a decision made in February 2017 not to issue a trainer’s licence to Mr Golden. Mr Golden contended that this decision represented a “continuation” of the warning off decision set aside by the Court of Appeal in 2016. McCallum J held that Mr Golden did not provide a coherent account of any justiciable claim. Her Honour was not persuaded that Mr Golden should have leave to replead that aspect of the claim.

20. [56]

    The remaining relief specifically concerned CHAPS, which Mr Golden alleged has seen the embezzlement of hundreds of millions of dollars of public funds. McCallum J held that none of Mr Golden’s claims sought to vindicate any arguable right of Mr Golden’s. Even if they did, it would clearly not be open to the Court to grant relief in such terms.

21. [57]

    Finally, the defendants submitted that the statement of claim contained allegations which were vague or imprecise and that the defendants could not plead to such allegations. McCallum J agreed. By way of example, the pleading asserted:

22. [58]

    The allegations about Mr McGauran, mismanagement of CHAPS, illegitimate payments to unnamed and untrialled racehorses and Racing NSW have a strong similarity to the allegations made in all of the eight cases identified by the primary judge.

23. [59]

    This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.

24. [60]

    Mr Golden sought leave to appeal against McCallum J’s decision. This Court refused leave to appeal.

25. [61]

    Macfarlan JA (with whom Basten and Meagher JJA agreed) held that Mr Golden did not demonstrate any arguable error on the part of the primary judge:

26. [62]

    Macfarlan JA held that her Honour was clearly correct to dismiss the proceedings so far as they constituted an attempt to challenge the 2011 decisions. Those decisions were the subject of earlier proceedings in which judicial review and damages for misfeasance in public office were sought. The claim for damages for misfeasance in public office was rejected in respect of both decisions (including in the 2016 Court of Appeal decision). As was pointed out in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [34], it is a “central and pervading tenet of the judicial system … that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances”. This is not such a circumstance.

27. [63]

    As McCallum J had pointed out, the 2017 trainer’s licence at issue would (if it had been granted) have expired on 30 June 2017. There was no utility in allowing Mr Golden the opportunity to challenge the 2017 decision. Mr Golden said that he would only be able to apply for a licence and resume business, and therefore to fund the substantial expense that that would involve, if he were able to obtain compensation from the defendants in respect of the losses he alleges he suffered as a result of the 2011 decisions. The prospect of achieving such compensation was foreclosed by the decision of this Court in 2016.

28. [64]

    As to the defendants’ alleged involvement in embezzlement and a cover-up of misconduct under the CHAPS scheme, this Court held that Mr Golden did not demonstrate any arguable error on the part of the primary judge. No arguable error was shown in her Honour’s conclusion that Mr Golden’s claim for damages for misfeasance in public office was impermissible as an attempt to relitigate the claim to like effect made and rejected by this Court in its 2016 decision.

29. [65]

    This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.

30. [66]

    The High Court dismissed Mr Golden’s special leave application to appeal against the Court of Appeal’s judgment in Golden v V’landys [2020] NSWCA 120:

31. [67]

    This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.

32. [68]

    Mr Golden initiated proceedings against Ross Koffel and Koffels Pty Ltd, being a solicitor and a firm of solicitors who represented him in challenging the decisions of Racing NSW in respect of the 2011 conduct, which led to Mr Golden’s partly successful 2016 case in this Court. Mr Golden claimed professional negligence on the part of his solicitors. The defendants sought orders that the proceedings be dismissed pursuant to r 13.4 of the UCPR and, in the alternative, the amended statement of claim filed on 26 November 2020 be struck out in whole or in part pursuant to r 14.28 of the UCPR.

33. [69]

    Cavanagh J noted at the outset that the statement of claim on which the plaintiff relied was an extensive document. Many of the allegations of fact contained in the amended statement of claim related more to Mr Golden’s grievances against Racing NSW and Mr V’landys than his grievance against the defendants. Having said that, Mr Golden summarised the case against the defendants in paragraphs 31 to 36 of the amended statement of claim. It was described as a claim in negligence.

34. [70]

    Mr Golden’s case was summarised by Cavanagh J (at [26]) as comprising the following allegations:

35. [71]

    The essence of Mr Golden’s complaint was that his solicitors failed to pursue allegations of misappropriation of public funds with sufficient vigour and failed to cross-examine Mr V’landys about the alleged CHAPS misappropriation. The solicitors allegedly “failed to present critical evidence, including critical evidence relating to corruption and fraud” and “failed to expose the fraud and coverup and failed to highlight certain matters which [Mr Golden] wanted highlighted”.

36. [72]

    Cavanagh J held that Mr Golden’s claim for professional negligence against his solicitors was based on the assertion that they failed to follow his instructions by failing to obtain and adduce certain evidence and failing to conduct the hearing, for example, by cross-examining Mr V’landys on certain matters in a way which Mr Golden wanted.

37. [73]

    Cavanagh J held that all of the allegations raised by Mr Golden (that could lead to any potential relief on his part) fell squarely within the description of work done either out of Court, which leads to a decision affecting the conduct of the case in Court, or work actually done in court, that is during the conduct of the hearing. In those circumstances, Cavanagh J held that Mr Golden’s claim was bound to fail. Cavanagh J dismissed the proceedings under r 13.4(1) of the UCPR.

38. [74]

    This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.

39. [75]

    In Golden v Koffel [2021] NSWCA 8, Mr Golden applied for leave to appeal from the decision of Cavanagh J. Gleeson and White JJA dismissed the summons for leave to appeal. Their Honours noted Mr Golden’s allegation that he instructed Mr Koffel to take Mr V’landys and Racing NSW to court for misappropriation of public funds, and that Koffels failed to present to court documents produced on discovery which, according to Mr Golden, confirmed a fraud and cover up by Racing NSW and further misappropriation of funds. The basis for this allegation was that, according to Mr Golden, CHAPS funding was specifically directed only to in-work horses. Mr Golden alleged that critical evidence which was not presented to the court but which was available through discovered documents and other papers would, if produced, have demonstrated that millions of dollars of public funds were misapplied. He alleged that “virtually everything to do with CHAPS fraud was struck out of 2015 hearings”. This was an allegation that evidence of the fraud was not adduced by Koffels in the proceedings, rather than that evidence was tendered but rejected. Mr Golden also alleged that, had he been properly represented, the respondents would have joined Racing NSW’s general counsel, Mr Sweney, as a defendant.

40. [76]

    The Court noted that Cavanagh J summarily dismissed the proceeding on the ground of advocates’ immunity from suit. Cavanagh J said:

41. [77]

    The Court held that there is no arguable error in that reasoning. This was a paradigm case to which the rationale for the existence of advocates’ immunity applies. In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16, the High Court held that the protection of public interest in the finality and certainty of judicial decisions provided both the rationale for the continued recognition of advocates’ immunity and determined the scope of that immunity (at [34], [35], [37] and [52]). In explaining this, their Honours said:

42. [78]

    Mr Golden accused Cavanagh J of being a tacit advocate for corruption. The Court noted this was a scandalous submission that ought not to have been made. Mr Golden submitted that to allow the respondents to rely on advocates’ immunity as an answer to his claim would be to permit the continued covering up of the fraud he wished to expose in the earlier proceedings. He accused the court and its judges of being complicit in the cover up. The Court rejected this claim:

43. [79]

    This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.

44. [80]

    In Golden v Anderson [2023] NSWSC 97, Mr Golden initiated another set of proceedings against six defendants including the then Premier of New South Wales and a number of Commonwealth and New South Wales Ministers and Members of Parliament for misconduct, fraudulent conduct, misrepresentation and other serious allegations concerning alleged failures to enquire about the administration of CHAPS. The defendants sought orders that the proceedings be summarily dismissed.

45. [81]

    The first defendant was then the Member for Tamworth and was appointed NSW Minister for Hospitality and Racing on 21 December 2021. Prior thereto, he had held no portfolio relevant to Mr Golden’s complaint. The second defendant was the Member for Epping and was then the NSW Premier. He had never held a specialist ministerial portfolio relating to Racing NSW. The third defendant was the Member for Clarence. He had never held a portfolio connected with racing.

46. [82]

    The fourth defendant was elected to the Federal Senate in 2016, was a Cabinet minister, and then held the Ministry of Agriculture, Fisheries and Forestry and Ministry of Emergency Management since 1 June 2022. He was a Cabinet minister between 2017 and May 2022 holding various ministries. The fifth defendant had been in Federal Parliament since September 2013. He was formerly head of the National Party and Deputy Prime Minister and had held various Cabinet positions. The sixth defendant was elected to the House of Representatives in 2013 and held various Parliamentary positions, including assistant to the Deputy Prime Minister from February 2022.

47. [83]

    The case against each of these defendants was set out in the amended statement of claim, a 46-page document comprising 101 paragraphs. Very few of the paragraphs mentioned the defendants. As set out in the section headed “Relief Claimed,” the plaintiff sought 47 declarations. Only a small number of those suggested declarations related to the defendants.

48. [84]

    Cavanagh J found that these proceedings were another set of proceedings pursued by Mr Golden arising out of essentially the same subject matter. The plaintiff had been unsuccessful in those earlier proceedings (save the limited success relating to the “warning off” decision in the 2016 proceedings in this Court). Mr Golden sought to agitate essentially the same issues against these defendants, all of whom are or were members of State or Federal Parliament:

49. [85]

    His Honour found that Mr Golden’s real case against each of the defendants was that they failed to investigate his complaints and, in some way, this was said to give rise to a cause of action in deceit. Cavanagh J held that the difficulty for Mr Golden was not only that he did not properly plead any cause of action in deceit, but there was nothing at all in the amended statement of claim which could provide a basis for a cause of action in deceit:

50. [86]

    Further, Cavanagh J concluded that it was not apparent how success in any cause of action pursued by the plaintiff against any of the defendants could lead to what the plaintiff sought; that is, damages in the amount of $10 million, return of his horse racing licence, and referral to the NSW Office of the Director of Public Prosecutions. None of the persons sued in the case had anything to do with CHAPS. None of the persons sued were responsible directly or indirectly for Mr Golden losing his licence or being warned off race tracks in New South Wales. None of the persons sued were responsible or had anything to do with Mr Golden losing income from his core business over the past 10 years. Further, Mr Golden did not say in the amended statement of claim how such persons were responsible or could be responsible.

51. [87]

    Finally, Mr Golden made a number of what may be termed scandalous allegations. Those allegations were made against many people who have been involved in dealing with Mr Golden’s grievances since they first arose and include judicial officers and other persons involved in his cases. Cavanagh J dismissed the proceedings under r 13.4(1) of the UCPR.

52. [88]

    This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.

53. [89]

    In Golden v Howard & Anor [2023] NSWSC 1418, Mr Golden initiated proceedings against Mr Howard and Mr Burke alleging misconduct, fraudulent conduct, misrepresentation and other serious allegations concerning the administration of CHAPS. Mr Golden relied on the fact that Mr Howard was the Prime Minister of Australia when CHAPS was established until the general election in late 2007, and Mr Burke became the Commonwealth Minister responsible for CHAPS after that election. The defendants sought to have the whole of the proceedings against them dismissed pursuant to r 13.4(1) of the UCPR. As I have earlier explained, Wright J dismissed the proceedings. At the outset, Wright J summarised the essence of these proceedings:

54. [90]

    Wright J held that the real issue was whether a reasonable cause of action existed, not simply whether one was pleaded: Spencer v The Commonwealth [2010] 241 CLR 118; [2010] HCA 28 at [22]–[23] (French CJ and Gummow J); O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71 at [3] (Macfarlan JA, Beazley P and Ward JA agreeing).

55. [91]

    Wright J identified two torts allegedly committed by the two defendants, namely deceit and negligence. His Honour found that no other causes of action against the two defendants were specifically identified.

56. [92]

    As to the claim of deceit, Mr Golden did not plead allegations that would satisfy the elements of this tort identified by the High Court in Magill v Magill (2006) 226 CLR 551; [2006] HCA 51. 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. 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.

57. [93]

    As to the claim of negligence, 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 in Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 at [88] in conveniently simple terms sufficient for present purposes, as follows:

    1. (1)

       There was a duty of care, recognised by law, owed by the defendant to the plaintiff;

    2. (2)

       There was a breach of that duty; and

    3. (3)

       There was a causal connection between the damage sustained and the breach of duty, which damage was not too remote from the breach.

58. [94]

    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. Wright J observed that 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. Wright J concluded that 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.

59. [95]

    While Mr Golden’s statement of claim contained other contentions, it did not appear to Wright J to provide a foundation for concluding that any other relevant tortious liability was, or could be, pleaded by Mr Golden.

60. [96]

    Even allowing for the fact that Mr Golden was not a lawyer and had not, up to this point in the proceedings, been represented, Wright J could not discern from the material to which Mr Golden 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. Wright J noted that this was 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 was a matter about which Wright J could express no view, because Mr Golden had not named those other persons as defendants, they had 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 were very serious.

61. [97]

    As to the question of whether the proceedings were vexatious, Wright J was satisfied that they were:

62. [98]

    Wright J considered that dismissing the proceedings was 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, Wright J 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. Wright J also had regard to the dictates of justice including, in addition to ss 56 and 57, the use that Mr Golden had 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. Wright J found that the proceedings should be dismissed as an abuse of process and vexatious.

63. [99]

    This proceeding was correctly identified by the primary judge as vexatious within the meaning of s 6 of the Vexatious Proceedings Act.

64. [100]

    Each of the proceedings identified by the primary judge was vexatious within the meaning of s 6(c) of the Vexatious Proceedings Act, as the proceedings were each instituted or pursued without reasonable grounds. Each proceeding was also an abuse of process within the meaning of s 6(a) of the Vexatious Proceedings Act, as each sought to reagitate issues which had been determined in earlier proceedings. The proceedings were also conducted in a way that harassed, or caused unreasonable annoyance, delay or detriment within the meaning of s 6(d) of the Vexatious Proceedings Act to the extent that they each contained numerous irrelevant and improper allegations. The primary judge was entitled to have regard to findings to that effect in the decisions regarding Mr Golden to which his Honour referred.

65. [101]

    As Leeming JA observed in Potier, the conclusion that a person has “frequently” instituted vexatious proceedings is a relatively low threshold.

66. [102]

    It is obvious that Mr Golden has been fixated on what he believes is the fraud and maladministration he has uncovered in relation to CHAPS. That strong belief, however, does not permit the making of indiscriminate serious allegations of fraud in the absence of credible evidence. Mr Golden has initiated a number of similar proceedings making essentially the same key allegations of fraud without any proper basis.

67. [103]

    I accept that Mr Golden has a long-held grievance against those responsible for the administration of the CHAPS scheme, particularly Mr V’landys, Mr McGauran and Mr Sweney from Racing NSW. In each of the cases I have described above, Mr Golden has agitated very similar issues, focusing on what he alleges was the misconduct of essentially the same cast of characters. The same grave but essentially unsupported allegations of fraud are advanced in every case. Those serious allegations are nearly always advanced against the central cast of characters and a large number of non-parties.

68. [104]

    The primary judge was correct to conclude that Mr Golden has “frequently” instituted or conducted vexatious proceedings in Australia within the meaning of s 8(1) of the Act.

69. [105]

    No error, let alone House v The King (1936) 55 CLR 499; [1936] HCA 40 error, has been shown in the exercise of discretion by the primary judge to make an order under s 8 of the Vexatious Proceedings Act.

70. [106]

    The order made by the primary judge was appropriately tailored to proceedings arising from allegations concerning CHAPS including the proceedings Mr Golden has already unsuccessfully prosecuted. There is no blanket prohibition upon litigation by Mr Golden. In addition, if Mr Golden could identify a properly arguable claim against any person or entity relating to CHAPS he is able to seek leave under s 14 of the Vexatious Proceedings Act.

71. [107]

    The essence of Mr Golden’s complaint about the primary judge’s decision was that his Honour allegedly failed properly to take into account the material he says demonstrates the underlying allegations of fraud in the administration of CHAPS. Mr Golden’s complaint rather emphasises the correct exercise of discretion by the primary judge. That material does not establish an arguable cause of action against any person or entity. Further, as I said at the outset, this Court does not play the role of a standing Royal Commission. Mr Golden, in the course of his address in this Court, stated that he understood the Court’s limited role but, nevertheless, deliberately sought to use the processes of the Court to prosecute his claim for a broad investigation. This is a case where Mr Golden has amply demonstrated a fixed determination to use the processes of this Court to seek a Royal Commission style investigation of CHAPS. That is not the Court’s role.

72. [108]

    I have had regard to the principles of restraint emphasised by this Court in Proietti v Proietti. This is a case, however, where in the exercise of discretion an order of the kind made by the primary judge was amply justified. It cannot be clearer that in the absence of an order under s 8 of the Vexatious Proceedings Act Mr Golden intends to institute further vexatious proceedings concerning the same or similar subject matter as the eight earlier vexatious proceedings.

73. [109]

    The order under s 8 of the Vexatious Proceedings Act made by the primary judge was necessary and appropriate.

Conclusion and proposed orders

1. [110]

   No error has been shown in the order made by the primary judge under s 8 of the Vexatious Proceedings Act. No error of principle was established. There was no material supporting allegations of bias or judicial misconduct nor denial of procedural fairness in the hearing before the primary judge. It has not been shown that the primary judge failed properly to take into account Mr Golden’s claims. No coherent claim against any person or entity was identified by Mr Golden. The primary judge was correct to make the order he did under s 8 of the Vexatious Proceedings Act. Although it has been necessary to correct a superfluous order made by the primary judge and amend a consequential costs order, virtually all of the application for leave to appeal and the appeal addressed the order made by the primary judge under s 8 of the Vexatious Proceedings Act. In relation to that matter, Mr Golden has been unsuccessful. In those circumstances, Mr Golden should pay the respondents’ costs of the application for leave to appeal and the appeal.

2. [111]

   For these reasons, I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Set aside order 1 made by Rothman J on 1 October 2024.

   3. (3)

      Amend order 3 made by Rothman J on 1 October 2024 to provide:

   4. (4)

      Appeal otherwise dismissed.

   5. (5)

      Mr Golden pay the costs of the respondents of the application for leave to appeal and the appeal.

3. [112]

   BALL JA: I agree with Payne JA.