Golden v Koffel

THE COURT: This is an application for leave to appeal from orders of a judge of the Common Law Division that the applicant’s proceeding be summarily dismissed with costs (Golden v Koffel [2021] NSWSC 739, Cavanagh J).

The applicant, Mr Golden, was a racehorse breeder and trainer. On 8 June 2011 the Chief Executive of Racing NSW, Mr Peter V’landys, on behalf of Racing NSW, decided that Mr Golden’s trainer’s licence should be suspended for six months. On 24 June 2011 Mr V’landys determined that Mr Golden should be warned off racetracks controlled by Racing NSW indefinitely.

In 2013 Mr Golden commenced proceedings challenging those decisions. Initially all his claims failed (Golden v V’landys [2015] NSWSC 1709, Adamson J). On appeal (Golden v V’landys [2016] NSWCA 300) Mr Golden was partially successful. The decision to warn off Mr Golden from all racetracks controlled by Racing NSW was quashed and the respondents (Mr V’landys and Racing NSW) were ordered to pay 75% of his costs.

What prompted the decisions of Mr V’landys for Racing NSW was Mr Golden’s abusive complaints of corruption in the administration or oversight by Racing NSW of a Commonwealth Government scheme, the Commercial Horse Assistance Payments Scheme (“CHAPS”), to provide assistance to those involved in the horse racing industry who were adversely affected by an outbreak in 2007 of the equine influenza virus.

The respondents to the present application, Koffels Pty Ltd and Mr Koffel, acted for Mr Golden in the proceedings before Adamson J.

In 2018 Mr Golden instituted a second proceeding in the Common Law Division in which he represented himself. He sought to reventilate his earlier claims that had been disposed of, as well as challenge a later decision adverse to him in 2017. Those proceedings were summarily dismissed by McCallum J (as her Honour then was) (Golden v V’landys [2019] NSWSC 1362) and an application for leave to appeal from her Honour’s orders was dismissed by this Court (Golden v V’landys [2020] NSWCA 120).

In her reasons, McCallum J said:

On 26 November 2020 Mr Golden instituted the proceedings from which this application for leave to appeal has been filed against his former solicitors who acted for him in the first proceedings against Mr V’landys and Racing NSW that were heard before Adamson J. Again, he brings these proceedings without legal representation. He alleged that he instructed Mr Koffel to take Mr V’landys and Racing NSW to court for misappropriation of public funds (statement of claim para 6) 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 (para 7). The basis for this allegation appears to be that according to Mr Golden, CHAPS funding was specifically directed only to in-work horses (para 7). He alleged that critical evidence 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 (para 18). He alleged that “virtually everything to do with CHAPS fraud was struck out of 2015 hearings” (para 17). 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 general counsel, a Mr Sweney, as a defendant (para 21).

Under the heading “Defendants negligence’s [sic] summarised briefly” Mr Golden alleged:

He pleaded that, had the evidence been presented, this would have demonstrated that Mr V’landys held a malice against him (para 33).

Mr Golden’s claims for relief included:

The primary judge summarily dismissed the proceeding on the ground of advocates’ immunity from suit. The primary judge said:

There is no arguable error in that reasoning. This is 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, the High Court held that the 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], [52]). In explaining this, their Honours said:

As the respondents submitted, the determination of Mr Golden’s claim would require a relitigation of the issues in the earlier proceedings.

Mr Golden’s submissions did not address this fundamental difficulty in his claim. Instead, so far as they can be understood, his submissions appeared to be, first, he had filed a notice of motion seeking a trial by jury. The primary judge addressed this point. The primary judge noted (at [17]) that at the hearing of the respondents’ notice of motion for summary dismissal of the proceedings, he advised the applicant that the hearing of the applicant’s motion for an order for trial by jury would need to await the outcome of the defendants’ notice of motion for summary dismissal as there would be no point in hearing the applicant’s motion before the respondents’ motion. Whether the hearing should be before a jury could only be determined if the matter were fit to proceed to trial.

Mr Golden also submitted that the judge could not have absorbed the contents of a 905 page court book in the time he was able to devote to the matter. Most of its contents were irrelevant to the notice of motion for summary dismissal based on advocates’ immunity. The primary judge noted that during the applicant’s oral submissions, he identified his complaint against the respondents as being that they failed to present evidence at the hearing which should have been presented, failed to present evidence that he wanted them to present and which he made available to them, and failed to follow instructions as to the case he wished to pursue. In any event, the primary judge recorded that he had regard to all of the material in the court book and there is no reason to doubt that he did so, including by assessing its relevance, or lack thereof, to the issue before him.

For the balance of his submissions, Mr Golden accused the primary judge of being a tacit advocate for corruption. 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.

Mr Golden fails to appreciate that the Court is not a commission of inquiry. Its function is to determine issues between parties according to law. It is clear that, in accordance with the law as to advocates’ immunity established by the High Court, the claims Mr Golden would seek to ventilate against the respondents would be doomed to fail for the reasons identified by the primary judge.

In short, there is not even an arguable basis upon which the applicant’s proceeding could succeed. The summons for leave to appeal from the orders below should be dismissed with costs.