Young v Racing NSW Limited and ors

1. [1]

   Before the Court for determination are two notices of motion.

2. [2]

   The first notice of motion is dated 23 December 2020 and has been filed on behalf of the first, second, third, sixth and seventh defendants. It seeks the following orders:

   1. (1)

      an order pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (the Act) that the proceedings be permanently stayed;

   2. (2)

      in the alternative to order (1), an order pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules), or the inherent jurisdiction of the Court, that the proceedings be summarily dismissed;

   3. (3)

      in the further alternative to order (1), an order pursuant to rule 14.28 of the Rules, or the inherent jurisdiction of the Court, that the plaintiff’s statement of claim be struck out;

   4. (4)

      an order that the plaintiff pay the costs of, and incidental to, the notice of motion; and

   5. (5)

      such further orders as the Court sees fit.

3. [3]

   That notice of motion was supported by an affidavit of Marc Richard Baddams of 23 December 2020 which was read without objection.

4. [4]

   The second notice of motion is dated 26 February 2021 and has been filed on behalf of the fourth and fifth defendants. It seeks the following orders:

   1. (1)

      an order that the proceedings be dismissed pursuant to rule 13.4 of the Rules;

   2. (2)

      in the alternative, an order that the plaintiff's statement of claim filed on 8 October 2020 be struck out pursuant to rule 14.28 of Rules;

   3. (3)

      an order that the plaintiff pay the fourth and fifth defendant’s costs of the motion;

   4. (4)

      an order that the plaintiff pay the fourth and fifth defendant’s costs of the proceedings; and

   5. (5)

      such further or other order as the Court deems fit.

5. [5]

   That notice of motion was supported by an affidavit of Rachael Knapman of 26 February 2021 which was read without objection.

6. [6]

   The entirety of the evidence in support of the respective motions was contained in a tender bundle which was admitted and marked as exhibit ‘A’ on the hearing.

The proceedings brought by the plaintiff in the District Court

1. [7]

   On 19 July 2019 the plaintiff commenced proceedings against the first, second and third defendants in the District Court of New South Wales seeking damages, including aggravated damages and exemplary damages (the District Court proceedings). [1] The District Court proceedings stemmed from action allegedly taken by the three named defendants arising out of an online news report which, the plaintiff alleged, had operated to prevent him from being able to renew his licence to train racehorses.

2. [8]

   The first and second defendants filed a notice of motion seeking that the District Court proceedings be dismissed, or alternatively that the plaintiff's statement of claim be struck out. A separate notice of motion was filed on behalf of the third defendant seeking similar relief.

The hearing of the application for dismissal of the District Court proceedings

1. [9]

   The two notices of motion were heard by her Honour Judge Gibson in the District Court on 7 November 2019. In view of a number of submissions made by the plaintiff before me, it is necessary to make reference to some aspects of the hearing which proceeded before her Honour.

2. [10]

   At the commencement of the hearing, and in circumstances where the plaintiff was self-represented and was appearing before her Honour via audio link, the following exchange took place: [2]

3. [11]

   When the hearing commenced, her Honour confirmed with the plaintiff that he was able to hear what was being said. [3] A short time later the following exchange took place between her Honour, the plaintiff, and senior counsel then appearing for the first and second defendants: [4]

4. [12]

   Following the submissions made on behalf of the defendants in support of their respective notices of motion, the following exchange took place between her Honour and the plaintiff: [5]

5. [13]

   The plaintiff then addressed the Court at length, in the course of which he had a number of exchanges with her Honour regarding specific submissions which he had advanced. [6] Generally speaking, the plaintiff responded cogently and appropriately to queries raised by her Honour in the course of those exchanges, which culminated in the following: [7]

6. [14]

   Having given the plaintiff a further opportunity to make submissions, [8] her Honour said: [9]

7. [15]

   The plaintiff then made a number of further submissions during which the following exchange took place: [10]

8. [16]

   The plaintiff then made a series of further submissions to her Honour, [11] following which her Honour said: [12]

9. [17]

   The plaintiff then made further submissions to her Honour [13] which culminated in the following exchange: [14]

10. [18]

    Counsel then appearing for the first and second defendants made a short submission to her Honour in response to which the plaintiff said: [15]

11. [19]

    The plaintiff then made further submissions in respect of those two issues following which judgment was reserved. [16]

The dismissal of the District Court proceedings

1. [20]

   In a judgment delivered on 14 November 2019 her Honour dismissed the District Court proceedings and reserved the question of costs. [17]

2. [21]

   In the course of that judgment, her Honour observed that the statement of claim which had been filed by the plaintiff contained numerous defects, [18] including the absence of a properly identified cause of action. Her Honour observed that instead, there was a “lengthy recital of the plaintiff's complaint that, ‘multiple times….until the present date’ employees of the defendants have downloaded a news item from the Australian Broadcasting Corporation (‘ABC’) first made available online on 12 December 2012 [which] contained a report of Court proceedings in which the plaintiff had been convicted of animal cruelty offences in 2019”. [19] Her Honour went on to say: [20]

3. [22]

   In addressing the form of the plaintiff's statement of claim, and in attempting to identify the causes of action upon which he relied, her Honour said the following: [21]

4. [23]

   Her Honour concluded: [22]

5. [24]

   Following the delivery of that judgment, the defendants sought gross sum costs orders against the plaintiff pursuant to s 98(4)(c) of the Act and rule 42.20 of the Rules. The plaintiff then brought an application pursuant to rule 36.15 of the Rules for an order setting aside her Honour's judgment. He also challenged the making of costs orders, and sought that her Honour recuse herself from the proceedings.

6. [25]

   Her Honour dismissed the plaintiff's application to set aside judgment, refused the related application that she recuse herself, and ordered that the plaintiff pay the defendants' costs of the proceedings in specified gross sums. [23] In the course of her judgment on those issues, her Honour observed: [24]

7. [26]

   Having made reference to some authorities touching upon the issue of the necessity to decide a case on its merits, [25] her Honour continued: [26]

8. [27]

   Her Honour went on to summarise the various complaints made by the plaintiff in relation to her conduct, one of which centred upon an asserted failure on the part of her Honour to assist the plaintiff with his hearing problems. In relation to that issue her Honour said: [27]

9. [28]

   Having noted other aspects of the proceedings, her Honour observed: [28]

10. [29]

    Her Honour concluded: [29]

The proceedings commenced in this Court

1. [30]

   In the absence of bringing any appeal, or any application for leave to appeal, against any of Judge Gibson’s determinations, the plaintiff commenced proceedings in this Court against the present seven defendants by filing a statement of claim on 8 October 2020. [30] Without intending any disrespect to the plaintiff, that statement of claim is as discursive and prolix as that filed in the District Court proceedings. I do not, given its length, propose to set it out in its entirety. The following extracts are generally indicative of its form and content. [31]

2. [31]

   The statement of claim is prefaced with the following: [32]

3. [32]

   The first two paragraphs are in the following terms:

4. [33]

   Under the heading “The discrimination complained of" the statement of claim includes the following: [33]

5. [34]

   The statement of claim proceeds to make a number of complaints about the District Court proceedings. [34] Typical of such complaints is the following: [35]

6. [35]

   That general complaint is repeated in various forms in the statement of claim. [36]

7. [36]

   The statement of claim seeks what are referred to as “declaratory orders and an order for damages based upon the full factual details set out herein”. [37] Amongst the orders sought, all of which appear to focus upon the hearing before Judge Gibson, are the following: [38]

8. [37]

   In terms of damages, the statement of claim pleads the following:

Submissions of the plaintiff

1. [38]

   When given the opportunity to address the Court on the hearing of the present motions, the plaintiff said the following: [40]

2. [39]

   In reference to the facilities which had been made available to him for the purposes of appearing before this Court (which, it should be noted, included his having access to an AVL facility provided to him in a private room at the Lismore Local Court) the plaintiff said: [41]

3. [40]

   The plaintiff concluded his submissions by saying the following: [42]

Submissions of the first, second, third, sixth and seventh defendants

1. [41]

   Senior counsel for the first, second, third, sixth and seventh defendants submitted that the statement of claim filed in this Court disclosed no reasonable cause of action. He further submitted that having regard to the manner in which had been drafted, it exhibited a tendency to cause prejudice, embarrassment or delay. In advancing these submissions senior counsel submitted that in circumstances where the complaints advanced by the plaintiff in the statement of claim filed in this Court stemmed from the District Court proceedings, no relevant duty had been owed to the plaintiff by the first, second and third defendants in those proceedings. Senior counsel also pointed out that the sixth and seventh defendants were not even parties to those proceedings, but were in fact the lawyers acting for one or other of the first, second and third defendants.

2. [42]

   Whilst accepting that the plaintiff was entitled to procedural fairness in the conduct of the District Court proceedings, senior counsel submitted that neither the defendants in those proceedings, nor their legal representatives, owed the plaintiff a duty to ensure that he was afforded that entitlement. In any event, it was submitted that it was clear from a transcript of those proceedings that the plaintiff was afforded procedural fairness at every stage of the proceedings.

3. [43]

   To the extent that the plaintiff sought to rely upon the provisions of the Disability Discrimination Act 1992 (Cth) senior counsel submitted that such legislation had no application to the plaintiff’s position, for the simple reason that the plaintiff had not been the subject of any discrimination.

4. [44]

   Senior counsel further submitted that the proceedings brought in this Court amounted to an attempt by the plaintiff to re-litigate matters which had been determined by Judge Gibson in a manner which was adverse to him. He counsel submitted that it had been open to the plaintiff to seek leave to appeal against the decision of Judge Gibson and that having chosen not to take that course, and under the guise of a suit in negligence, the plaintiff was now seeking to impugn the conduct of the District Court proceedings on grounds which had been rejected by her Honour in her judgment, in an attempt to either be placed in the position in which he would have been had the District Court proceedings not been dismissed, or to have the orders dismissing those proceedings set aside. Leaving aside the question of whether or not the findings of Judge Gibson gave rise to an issue estoppel, senior counsel submitted that in the circumstances outlined, the proceedings brought by the plaintiff in this Court constituted a collateral attack upon the dismissal of the District Court proceedings, and were thus an abuse of process.

Submissions of the fourth and fifth defendants

1. [45]

   Counsel for the fourth and fifth defendants generally adopted the submissions advanced on behalf of the first, second, third, sixth and seventh defendants. In doing so, counsel took the Court to some parts of the transcript to which I have referred in support of the proposition that the various complaints now made by the plaintiff regarding the circumstances in which he appeared before Judge Gibson were largely, if not entirely, baseless.

The relevant statutory provisions

1. [46]

   Rule 13.4 of the Rules is in the following terms:

2. [47]

   Rule 14.28 of the Rules is in the following terms:

3. [48]

   Section 67 of the Act is in the following terms:

4. [49]

   For the reasons that follow, I have come to the view that the proceedings brought by the plaintiff in this Court must be dismissed because they:

The absence of a reasonable cause of action

1. [50]

   The power to summarily dismiss proceedings is an exceptional one. It is to be exercised only in circumstances where the absence of a cause of action is clearly demonstrated. [43] However in my view, that test is met in the present case.

2. [51]

   The gravamen of the plaintiff’s complaint appears to be that he was subject to discrimination, and was denied procedural fairness in the District Court proceedings. So much is evident from references in the statement of claim to (inter alia):

3. [52]

   To the extent that the statement of claim seeks to plead an action in negligence, it appears to do so on the basis of an assertion that the defendants owed the plaintiff a duty of care to ensure that he was afforded procedural fairness. In my view, the plaintiff’s complaints do not disclose a cause of action against any defendant. The first, second, third, fourth and fifth defendants did not owe any such duty to the plaintiff. The sixth and seventh defendants were not even parties to the District Court proceedings.

4. [53]

   In any event, the extracts of the transcript of the proceedings set out above make it abundantly clear that any complaint by the plaintiff that he was denied procedural fairness, or that he was the subject of discrimination on account of his impaired hearing (or anything else), is entirely baseless. Her Honour went to considerable lengths to ensure that the plaintiff was given the right to be heard, and to put his case. Whilst the plaintiff made some isolated comments regarding the quality and clarity of the audio link, a reading of the whole of the transcript makes it clear that the plaintiff was able to engage in the proceedings generally, and engage with her Honour specifically.

5. [54]

   The plaintiff was not the subject of any discrimination, be it on the basis of his hearing or otherwise. On the contrary, every possible step was taken to ensure that he was afforded his right to procedural fairness. In these circumstances, his reliance upon various provisions of the Disability Discrimination Act 1992 (Cth) is misplaced.

6. [55]

   For all of these reasons, no cause of action is disclosed in the statement of claim and the proceedings should be dismissed on that basis.

Abuse of process

1. [56]

   If a question has been disposed of in one case, a litigant cannot be permitted, by changing the form of the proceedings, to set up the same case again. To do so will amount to an abuse of process. [44] Despite his assertion to the contrary, I am satisfied that this is precisely what the plaintiff is seeking to do in bringing proceedings in this Court. In asserting negligence and discrimination on the part of the defendants, the plaintiff is, in effect, seeking to relitigate the issues that were determined against him by Judge Gibson.

2. [57]

   Moreover, it is a central tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. The principal qualification to the principle that controversies, once quelled, may not be reopened is provided by the appellate system. [45] As I have already noted, the plaintiff has chosen not to avail himself of his right to seek leave to appeal against the dismissal of the District Court proceedings.

3. [58]

   For these reasons, I am satisfied that the plaintiff's proceedings in this Court amount to a collateral attack on the District Court proceedings in a way which amounts to an abuse of process. That provides a further basis upon which the proceedings should be dismissed.

ORDERS

1. [59]

   For these reasons, I make the following orders:

   1. (1)

      The proceedings brought by the plaintiff against each of the first, second, third, fourth, fifth, sixth and seventh defendants are dismissed.

   2. (2)

      The Registrar is to forward a copy of this judgment to the plaintiff.

   3. (3)

      The question of the costs of the proceedings is reserved.

   4. (4)

      Absent agreement, each party is to provide written submissions to my Associate within 14 days as to the question of costs, such submissions not to exceed 2 pages in length.