M v Monash IVF Pty Ltd (No 2)

By Notice of Motion filed 14 September 2018, the defendants (Monash IVF Pty Ltd and Monash IVF Group) seek an order that pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) the plaintiff (Ms Seidler) be prohibited from instituting proceedings in NSW against either of the defendants or their employees, directors, officers or legal representatives. The defendants also sought their costs of the proceedings including the motion to date.

This motion follows the dismissal of the plaintiff’s action on 16 July 2019 in my decision of M v Monash IVF Pty Ltd [2019] NSWSC 928. In that matter the plaintiff brought claims against the defendants by way of an extensive statement of claim running some 2000 paragraphs. I ultimately found that there was no discernible cause of action apparent (at [20]) and it was difficult to understand what the plaintiff’s claim was (at [19] and [20]). I further noted the breadth and voluminous nature of the pleading and the large amount of supporting evidence filed, did not serve to assist me in understanding her claim (at [20]). It was further clear to me that many of the allegations which the plaintiff sought to make before me, had in part or in whole already been addressed by Rein J in 2014 (at [18]).

Counsel for the defendants also referred me to the following matters in which the plaintiff had been party:

The plaintiff was not successful on any occasion.

This motion was listed for hearing before me on 17 October 2019. I was assisted with written submissions from counsel for the defendants, who submitted that the plaintiff should be declared vexatious in circumstances where she has filed a significant and numerous number of irrelevant documents, has been in constant and incessant communication with the Court and the parties, and has attempted to re-agitate proceedings that have already been ventilated in the court. At hearing Ms Seidler made lengthy oral submissions to the effect that she opposed the motion. Her submissions were lengthy and were, at times quite difficult to comprehend.

On 17 October, I briefly indicated to the parties that I would make the orders as sought and provide more detailed written reasons shortly.

Section 8 of the Vexatious Proceedings Act, states:

The provision was considered by the Court in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (at [2]-[9]):

In deciding that proceedings are vexatious, the Court may have regard to the findings and results of the proceedings under consideration (Attorney General v Wilson [2010] NSWSC 1008 at [22]) and how the person has conducted themselves before the court (Gargan at [12]).

The court may also consider that the proceedings are an abuse of process. The court considers this in Attorney General v Crocker [2010] NSWSC 942 (at [17])

And later ([133]-[134]):

In considering whether proceedings are ‘frequent’ the court must look further than the number of actions brought (Singh v The Owners Strata Plan 11723 & Ors [2013] NSWSC 1595 at [52]). Further the court will be more likely to consider proceedings as frequent when brought against the same person or involve the same subject matter (Sitberg v Maples [2010] NSWSC 1344 at [32]).

Based not only on my decision to dismiss the plaintiffs claim on 16 July 2019, but the various other proceedings that the plaintiff has initiated against the defendants, I would grant the orders as sought by the defendants. It is clear, that Ms Seidler has been involved in numerous other proceedings in New South Wales in a variety of forums over many years. She has not been successful on any occasion. Moreover she has been declared vexatious by the Federal Court. It is clear also, that she has sought to agitate proceedings multiple times on the same subject matter and against the same defendants.

Most significantly, the conduct of Ms Seidler in the proceedings before me, as detailed in my judgement 16 July 2019, can be clearly characterised as vexatious. It seems to me that the resources that have been expended by the defendants to date in seeking to restrain Ms Seidler from either commencing and/or pursuing these proceedings have been quite disproportionate to the merits that she seeks to agitate on her side. I have no doubt that she is passionate, angry, and feels genuinely aggrieved by the situation. But the formulation of her grievances in a comprehensible coherent and intelligible way is of fundamental importance to the administration of justice. She has been unable, despite significant time, to formulate her claim in any understandable way or identify any cause of action.

Her conduct in the motion before me was likewise confused, and incomprehensible. Although she was clearly genuinely upset and aggrieved, I could not understand the allegations in her submissions, nor the substance of the points she wished to make.

I would make the orders as sought and prevent Ms Seidler instigating proceedings in NSW against Monash IVF or Monash IVF Group or any of their employees, agents, officers, etc without leave of the Court. I would also order that the plaintiff pay the defendants’ costs of the proceedings and the motion.