Macatangay v NSW Department of Education and Training

By summons filed in the Registry on 14th October 2015, the plaintiff seeks leave to commence proceedings by statement of claim against the New South Wales Department of Education.

Although not mentioned either on the face of the summons or in the affidavit filed in support on the same day, the application for leave is brought under the Vexatious Proceedings Act 2008 (NSW) (the Act). In Macatangay v State of New South Wales [2012] NSWCA 374 the Court of Appeal (Macfarlan JA, Sackville and Tobias AJJA), on 15th November 2012 made the following order:

The subject matter of “the Matters”, and of the many other matters Mrs Macatangay has commenced in this Court, the Court of Appeal, the Federal Court of Australia and the High Court of Australia, are the agitation, and re-agitation, of Mrs Macatangay’s sense of grievance over what she regards as her unfair dismissal from the New South Wales Teaching Service by the defendant. The long history of this matter was summarised by Tobias AJA in Macatangay v New South Wales [2012] NSWCA 108 (16th April 2012) at [4] – [9] in the following terms:

Moreover, the nature of Mrs Macatangay’s insurmountable difficulty in further agitating her grievance was explained by the Court of Appeal in Macatangay v New South Wales (No 2) [2009] NSWCA 272 (4th September 2009 (Allsop P, Tobias JA and Handley AJA)) in the following terms (at [19] – [20] and [22] – [25]):

It is apparent that, over the years, Mrs Macatangay has expressed her asserted legal cause of action in various ways. In her current proposed statement of claim (described as Annexure 2), Mrs Macatangay frames her proposed action against the defendant in the tort of abuse of process (see Williams v Spautz [1992] HCA 34; 174 CLR 509). So much is tolerably clear having regard to the references in the proposed statement of claim to the Industrial Relations Commission’s proceedings and references to the defendant’s “ulterior purpose” in those proceedings (see [3]); the allegation that the defendant “improperly used the process of [this] Court … for their ulterior purpose” (see [5]); and the allegation “that there is no settlement” of the Industrial Relations Commission proceedings.

The only matter that seems to be in any way “new” is the allegation that after the Industrial Relation Commission’s decision “the defendant put back the plaintiff’s name on the list of people prohibited to be employed in any incapacity” [sic] (see [4]). I interpolate that that matter seems to be based upon a letter dated 27th August 2014 from the Department annexed to her affidavit (page 15) rejecting an application for re-employment as a teacher. The letter states:

The proposed statement of claim goes on to collaterally challenge the original decision of Grove J and various decisions in the Court of Appeal on the basis that the “ulterior purpose” of the defendant’s Court of Appeal proceedings is to stop the plaintiff from pursuing her case (see [18]).

Sections 13, 14, 15 and 16 of the Act broadly involve “a three-stage structure”: Bar-Mordecai v State of New South Wales; Bar-Mordecai v Attorney General (NSW) [2012] NSWCA 207; 83 NSWLR 125 at 131 [16]. First, the applicant is required to file an application with an affidavit complying with s 14; secondly, the Court considers whether to dismiss the application under s 15 or make an order for service under s 16(1); and thirdly, the Court conducts a hearing under s 16(1)(b) and determines whether to dismiss the application (s 15) or grant leave to institute the proceedings under s 16(3).

I am prepared to assume that even where the Court is initially minded not to order service because s 15 is engaged, it is required to “offer the applicant a hearing before dismissing the application” Bar Mordecai at 131 [17]. This was Basten JA’s preferred view, although Beazley JA and Sackville AJA reserved their position on that matter. Johnson J had earlier expressed the same view as Basten JA in Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 218 at [7]. Accordingly, I directed the Registrar to fix the matter for an ex parte hearing on 19th November 2015, on which occasion Mrs Macatangay appeared to make submissions, orally and in writing, as to why the application should not be dismissed.

I summarise the five principal grounds which Mrs Macatangay put forward in support of her application:

I am of the opinion that Mrs Macatangay’s application must be dismissed in accordance with the provisions of s 15 of the Act. First, the affidavit of 6th October 2015 does not comply with the requirements of s 14(3) in that it does not disclose any fact adverse to the application and only recites facts upon which she relies to justify her claim. For instance, she fails to refer to the order made by the Court of Appeal under s 8(7) of the Act and fails to mention that each of the proceedings which she lists in her affidavit ultimately were determined adversely to her, even if she sometimes enjoyed a measure of success at interlocutory stages.

Secondly, even if the finding made in the immediately preceding paragraph is wrong, I am of the view that these proceedings are vexatious in that they seek to agitate again the very point that was decided against her in the Industrial Relations Commission at first instance, and on appeal, which formed the basis of Grove J’s decision upheld by the Court of Appeal on 4th September 2009. Her collateral challenge to facts conclusively decided against her, as the Court of Appeal decided in its decision of 15th November 2012 (at [9]), is clearly vexatious. As their Honours presciently observed “Mrs Macatangay will continue, unless a vexatious proceedings order is made, to purse the same claims as she has been making for some time and in respect of which her numerous applications relating to those claims have been dismissed, in some cases on the ground that they constituted an abuse of the court’s processes”. This application, notwithstanding an order under the Act, makes good that prediction.

Thirdly, there is no prima facie ground for an action for the tort of abuse of process evident in the allegations made in the proposed statement of claim, or in Mrs Macatangay’s affidavit. According to Williams v Spautz the essence of the tort is the bringing, or defending, of legal proceedings as a means of obtaining an advantage for which those proceedings are not designed, or a collateral advantage beyond the legal remedies available. Despite allegations of ulterior purpose, and even dishonesty, there is no averment of the proposed defendant using its defence of the previous proceedings in that way; no collateral advantage or benefit to which the defendant may not have been entitled is identified. The purpose of attempting to prevent Mrs Macatangay’s success in her proceedings is not “ulterior” or “collateral”.

I propose to dismiss the proceedings under s 15 of the Act.

My order is that under s 15 Vexatious Proceedings Act 2008 (NSW), the application for leave to institute proceedings is dismissed.