Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Macatangay v State of New South Wales [2012] NSWCA 108
• Hearing dates: 16 April 2012
• Decision date: 16 April 2012
• Before: Macfarlan JA at [13], [19]; Sackville AJA at [14]; Tobias AJA at [1], [18]

Decision

1. That Notices of Motion filed by the applicant on 27 September 2011 and 13 February 2012 be dismissed with costs, such costs to be paid on an indemnity basis.

2. Pursuant to the respondent's Notice of Motion filed on 11 November 2011, the applicant is restrained from making any further applications in matters 2005/20144 and 2005/269316 without leave of the Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PRACTICE AND PROCEDURE - Repetitious applications - Alleged abuse of process.
• Legislation Cited: Uniform Civil Procedure Rules 2005
• Cases Cited: Macatangay v State of New South Wales [2007] NSWSC 57; Macatangay v State of New South Wales (No 2) [2009] NSWCA 272; Macatangay v State of New South Wales [2010] HCASL 42; Macatangay v State of New South Wales (NSWSC, Hulme J, unreported, 20 May 2010); Macatangay v State of New South Wales (NSWSC, Handley & Sackville AJJA, unreported, 20 September 2010)
• Category: Procedural and other rulings
• Parties: Miguela Alvarez MACATANGAY (applicant); STATE OF NEW SOUTH WALES (respondent)
• Representation: Counsel: M A Macatangay in person. (applicant); A C Casselden (respondent); Solicitors: Unrepresented (applicant); Cameron Leslie Leaver, Hicksons Lawyers (respondent)
• File Number(s): 2005/269316

Decision under appeal

• Citation: Macatangay v State of New South Wales [2007] NSWSC 57
• Date of Decision: 2007-02-09 00:00:00
• Before: Grove J
• File Number(s): 2005/20144

Judgment

1 TOBIAS AJA: Before the Court are three notices of motion. The first was filed on 27 September 2011 by the plaintiff (whom I shall call the applicant) in proceedings 20144 of 2005 (the 2005 proceedings). In that notice of motion she seeks to reopen those proceedings which, as I understand it, is a reference to a judgment of Grove J given on 9 February 2007 when his Honour struck out as an abuse of process the applicant's further amended statement of claim filed in those proceedings on 28 March 2006.

2 The second notice of motion was filed on 11 November 2011 by the respondent and seeks an order that the first notice of motion filed on 27 September 2011 be dismissed as an abuse of the process of the Court pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (the UCPR).

3 The third notice of motion was filed by the applicant on 13 February 2012 in which she seeks a stay in matter 153396 of 2011 which, as I understand it, was a costs determination consequential upon her lack of success in the 2005 proceedings. She also seeks an order that this Court correct the various "wrong decisions" made by various judges in this Court and the High Court in subsequent litigation in the 2005 proceedings. It is common ground that if the applicant's first notice of motion is dismissed then her second notice of motion must also fail.

4 The matter has a long history which is chronicled in Annexure A to the affidavit of Robert Geoffrey Horton sworn 10 November 2011 read in support of the respondent's notice of motion filed on 11 November 2011. It would be fair to say, leaving to one side the proceedings in the Industrial Relations Commission (the IRC) which commenced this whole saga, that the matter has been before the Supreme Court, either a single judge or the Court of Appeal, on some eight occasions, and before the High Court of Australia on three special leave applications. The applicant was the unsuccessful party on all occasions. It is unnecessary to set out in any detail from Mr Horton's chronology the history of this matter which is adequately summarised in the judgment of Handley AJA, with whom Sackville AJA agreed, of 20 September 2010 when the Court rejected an application as an abuse of process to, in effect, reopen the 2005 proceedings dismissed by Grove J on 9 February 2007. However, in deference to the applicant, some of that history needs to be recounted.

5 The circumstances that gave rise to the 2005 proceedings relate to the engagement and later dismissal of the applicant by the Department of Education back in about 2002. A dispute arose between her and the Department which resulted in the applicant commencing proceedings in IRC (the IRC proceedings) in which she sought to be reinstated as a teacher in the Department. An attempt was made to settle those proceedings. An issue arose as to whether or not there had in fact been a settlement of the IRC proceedings. The Department asserted that they had and the applicant asserted that they had not. The matter was resolved in the IRC by Commissioner McDonald on 25 June 2004 when he held that there was a binding agreement entered into on 20 March 2003 for the settlement of the proceedings. The applicant then sought leave to appeal from the Commissioner's decision to the Full Bench of the IRC. Leave was refused.

6 On 24 March 2005, the applicant commenced the 2005 proceedings in the Supreme Court against the present respondent for damages for negligence. Her original statement of claim was struck out by McClellan CJ at CL who gave her leave to re-plead, which she did. An application was then brought before Grove J to strike out the amended statement of claim on the basis that it was an abuse of process. His Honour acceded to that application on 9 February 2007: Macatangay v State of New South Wales [2007] NSWSC 57.

7 The basis of his Honour's decision as I understand it, was that the proceedings had in fact been settled in the IRC as Commissioner McDonald had found with the consequence that the 2005 proceedings which the applicant had instituted constituted an abuse of process. Since then there have been a number of appeals that sought to call into question the correctness of Grove J's decision both before single judges of this Court as well as the Court of Appeal. All of those applications have failed. Furthermore, as I have observed, three applications for special leave to the High Court have also failed. I need only refer to one of those applications.

8 On 4 September 2009 this Court struck out as incompetent an appeal by the applicant from the 2007 decision of Grove J and refused her leave to appeal from that decision: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272. On 30 March 2010 the High Court (Heydon and Bell JJ) dismissed the applicant's application for special leave to appeal from that decision: Macatangay v State of New South Wales [2010] HCASL 42. In so doing their Honours noted that the application for special leave to appeal turned on the factual issue as to whether her original proceedings in the IRC had been settled. Their Honours considered that such an appeal would enjoy insufficient prospects of success to justify a grant of special leave.

9 Notwithstanding the history to which I have referred, the applicant in her first notice of motion seeks to re-agitate matters that she has unsuccessfully agitated and re-agitated on numerous occasions without success. In particular, she asserts repetitively that there was no settlement of the proceedings in the IRC and that the numerous hearings of her various claims in the Supreme Court have failed to consider the "true facts" as to whether or not there had been any such settlement. However, those facts were considered by Commissioner McDonald and he found that a binding settlement had been entered into.

10 The statutory basis for the applicant's current application to re-open the 2005 proceedings is to be found in UCPR r 36.15(1) which empowers the court on sufficient cause being shown to set aside an order of the court if that order was made irregularly, illegally or against good faith. The order, as I have said, which the applicant seeks to have set aside is that of Grove J made on 9 February 2007 on the basis that his Honour failed to consider all the facts relating to whether or not there had been a settlement of the IRC proceedings. He did not consider those alleged facts because he held, correctly as various courts have repeatedly pointed out to the applicant, that that issue was determined by Commissioner McDonald and gave rise to an estoppel. The applicant also asserts that the respondent has on numerous occasions misled and told lies to the various courts that have dealt with this matter but in my view there is not a jot or tittle of evidence to support such an allegation, particularly bearing in mind its serious nature.

11 In my view, there is nothing to indicate that there has been any irregularity let alone any illegality or lack of good faith in the manner in which the matter was conducted before, and determined by, Grove J. In those circumstances, in my view the applicant's further attempt to reopen his Honour's decision must fail. I would therefore propose that the notices of motion filed by the applicant on 27 September 2011 and 13 February 2012 be dismissed with costs.

12 There is one other matter that needs to be considered and that is an order sought by the respondent in its notice of motion filed on 11 November 2011 that the applicant be restrained from making any further applications in matter 20144 of 2005, without the leave of the Court. In all the circumstances, given the history of this matter, in my view such an order should be made.

13 MACFARLAN JA: I agree.

14 SACKVILLE AJA: I agree with the orders that have been proposed by Tobias AJA.

15 In my view, it is enough to refer to the judgment delivered by this Court on 20 September 2010: (Macatangay v State of New South Wales, NSWSC, Handley & Sackville AJJA, unreported, 20 September 2010). The Court on that occasion dismissed a summons filed by the present applicant on 16 June 2010 in which she sought leave to appeal from the decision of Hulme J of 20 May 2010 (Macatangay v State of New South Wales, NSWSC, Hulme J, unreported, 20 May 2010). Handley AJA, in a judgment delivered on that day, with which I agreed, stated:

"The applicant has long since exhausted all reasonable avenues for challenging the decisions of the Industrial Relations Commission and of Grove J. The proceedings in the Commission and in this Court have finally established that the applicant's dismissal by the Department of Education and Training on 6 December 2002 did not give her a cause of action for damages against the State."

16 Handley AJA concluded that this was a clear case of abuse of process, and dismissed the application for leave to appeal. The applicant was ordered to pay the costs of the State on an indemnity basis. The High Court refused special leave to appeal from these orders.

17 If the applicant's earlier application for leave was a clear case of abuse, the present application by the applicant is an even clearer case of abuse and should not be entertained by this Court. I therefore agree with the orders that have been proposed.

18 TOBIAS AJA: In relation to the order that the applicant be restrained from making further applications in matter 20144 of 2005, for the sake of clarity and completeness I also add matter 269316 of 2005.

[ARGUMENT AS TO COSTS THEN ENSUED]

19 MACFARLAN JA: The Court makes formal orders as proposed by Justice Tobias. The costs orders to which his Honour referred will be on an indemnity basis. The Court will adjourn.

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Decision last updated: 27 April 2012