Application of Pamela Budd [2020] NSWSC 452

Supreme Court New South Wales

Medium Neutral Citation: Application of Pamela Budd [2020] NSWSC 452 Hearing dates: On the papers Date of orders: 28 April 2020 Decision date: 28 April 2020 Jurisdiction: Common Law Before: Fagan J Decision: 1. The plaintiff's application pursuant to s 14 of the Vexatious Proceedings Act 2008 for leave to re-commence proceedings No 256622/2006 is refused. 2. The summons is dismissed. Catchwords: CIVIL PROCEDURE – parties – vexatious litigant – leave to re-commence proceedings refused Legislation Cited: Vexatious Proceedings Act 2008 (NSW) Real Property Act 1900 (NSW) Cases Cited: Attorney General v Budd [2013] NSWSC 155 Category: Procedural and other rulings Parties: Pamela Joan Budd Registrar-General Representation: Counsel: N/A

Solicitors: Lincoln Legal (plaintiff) N/A File Number(s): 2020/67963 Publication restriction: No

Judgment 1. On 19 April 2013, for reasons given in Attorney General v Budd [2013] NSWSC 155, Hall J made the following order: (1) Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, Pamela Joan Theresa Budd is prohibited from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act. Ms Budd now applies pursuant to s 14 of the Vexatious Proceedings Act 2008 (NSW) for leave to "resume" proceeding No 265622 of 2006 in the Common Law Division of this Court.

Budd v Registrar-General (No 265622 of 2006) 1. Ms Budd commenced her 2006 proceeding on 27 October 2006 by filing a summons naming the Director General of Lands Titles as defendant. The summons was a pro forma printed document with the required particulars completed in barely legible handwriting. The "Relief claimed" section was filled out in these terms: I claim relief from Director of Lands Titles Office $500,000 for compensation for present market value of the loss of my legally owned Wyong Land estate Real whole [?] Land Delia Avenue. I claim the [?] Distress and the loss and pain from fraudulent transfer of land. 1. Despite its irregular form the summons was accepted for filing and was marked with a listing date of 30 January 2007. At the same time Ms Budd filed a notice of motion, which was given the same return date. This was also a printed pro forma document with handwritten entries. The "Orders sought" section was completed as follows: 1. Pay me for present market value of Wyong my Land estate. 2. Pay me compensation for the painful and suffering from the fraud transfers loss of my Real Property estate Wyong land in Breach of the Land's Titles and Crimes Act against me. Order No (2) seek $1.2 million and the wrong Fraud Transfers. Remove all fraud from Register. Amy for the Breach of Lands Titles Act 1. Ms Budd did not personally serve the summons but sent it by facsimile to the Department of Lands on 23 November 2006. A notice of appearance was filed on 6 December 2006. On 30 January 2007 Deputy Registrar Haggett conducted a directions hearing with Ms Budd attending by telephone, at her request. She had informed the registry that she suffered from agoraphobia and was unable to attend in person. On the Court file of the 2006 proceeding there a number of psychologists' reports, apparently supplied by Ms Budd during the brief history of the matter, attesting to her agoraphobia and anxiety. The psychologists who wrote these reports and the dates of them are: Christopher V Alexander, 12 October 2002; Avshalom Otmy, 5 April 2004; Yvette Hall, 3 March 2005; Liliane R Goodman, 28 April 2005 and 1 March 2006. 2. On 30 January 2007 Deputy Registrar Haggett made these orders: 1 The plaintiff is to file and serve a statement of claim on or before the 27 February 2007. 2 The plaintiff is to seek an order in the statement of claim that leave be granted pursuant to Section 131 of the Real Property Act. 3 The statement of claim is to show the defendant as "The Registrar-General of New South Wales". 4 The matter is listed in the Registrar's Application List on the 28 February 2007. 1. In late 2006 and early 2007 ss 131 and 132 of the Real Property Act 1900 (NSW) provided as follows (extracted so far as presently relevant): 131 Administrative proceedings for recovery of compensation (1) A person who has suffered compensable loss may lodge a claim for compensation, in the approved form, with the Registrar-General. (2) Such a claim may not be made more than 6 years after: (a) the date on which the act or omission giving rise to the compensable loss occurred, or (b) if the compensable loss arose after the date on which that act or omission occurred, the date on which the compensable loss arose. (3) The regulations may make provision for or with respect to the manner in which a claim is to be made and dealt with. (4) The Registrar-General may determine a claim by making an offer of settlement or by refusing the claim. (5) Section 135 [governing the settlement of claims by the Registrar-General] applies to the settlement, and any offer of settlement, of a claim. (6) A claimant must co-operate fully with the Registrar-General for the purpose of ensuring that the Registrar-General has sufficient information to be able: (a) to assess the validity of the claim, and (b) to assess the claimant's compensable loss, and (c) to make an informed offer of compensation. (7) In particular, a claimant must comply with any reasonable request by the Registrar-General: (a) to furnish specified information or to produce specified documents, or (b) to take specified action to further the claim. (8) In assessing the reasonableness of a request by the Registrar-General, regard is to be had to the following criteria: [criteria (a)-(h) are set out in the subsection but omitted from this extract) (9) For the purposes of section 132, a claim is taken to have been refused if it is not determined: (a) within 12 months after the claim was made, or (b) if at the end of that period the claimant has failed to provide information in fulfilment of the duty imposed by subsection (6), within 2 months after that information is provided. (10) Subsection (9) does not prevent a claim from being determined under this section in favour of the claimant after the expiry of the relevant period limited by that subsection, if the claimant has not commenced proceedings under section 132. (11) [omitted from extract] 132 Court proceedings for the recovery of compensation (1) Proceedings before a court for the payment of compensation are to be taken against the Registrar-General as nominal defendant. (2) Court proceedings may not be commenced: (a) unless administrative proceedings have been commenced and determined in relation to the compensable loss, or (b) more than 12 months after the date on which administrative proceedings have been determined in relation to the compensable loss, except by leave of the court or with the consent of the Registrar-General. (3) Court proceedings may be commenced at any time during the period of 12 months referred to in subsection (2) (b) despite any provision of the Limitation Act 1969 to the contrary. (4) In any court proceedings, the Registrar-General is not bound by any prejudicial act or omission by any party to the proceedings, such as: (a) entering into, or offering to enter into, a compromise, or (b) granting, or offering to grant, a release or waiver. (5) If court proceedings are commenced following administrative proceedings that have been determined by the offer of compensation and the compensation awarded by the court is less than the compensation offered by the determination: (a) the claimant's costs in the court proceedings are not payable by the Registrar-General, and (b) the Registrar-General's costs are payable by the claimant, unless the court orders otherwise. 1. In order 2 made by the Deputy Registrar on 30 January 2007, the reference to leave being granted pursuant to s 131 was clearly intended – and would have been understood – as a reference to leave under s 132(2). A copy of the orders was sent out to Ms Budd at the address she had provided for service, namely, 38/242 Malabar Road, South Coogee. 2. At some time during February 2007 Ms Budd prepared a statement of claim on a printed pro forma document. This named the Registrar-General as defendant, in accordance with Deputy Registrar Haggett's order 3 of 30 January 2007. The statement of claim did not seek leave to proceed, as required by s 132(2) in circumstances where Ms Budd had not taken any administrative proceeding for compensation under s 131. With respect to both "Relief claimed" and "Pleadings and particulars", the statement of claim simply stated, "See attached letter 30/1/07". Two such letters were attached. One of them contained the following matter: STATEMENT OF CLAIMS DETAILS/RELIEF/ORDERS (1) I am claiming against the Registrar State of New South Wales, the Land Director contravened the "Lands Titles Act", causing breach of his proper standard duty of care. This caused highly negligent breach of "Lands Act" against me and thus causing me to suffer the loss of my own legally owned real property, a whole block of land 167 Delia Avenue Wyong. NOTE: For this property loss my estate I claim relief compensation for the "actual present market value" of this property situated at 167 Delia Avenue Wyong. […] my name on this property is my married name (Pamela Jemison) and my mother Marie Budd gave it to me in this name 11 June 1977. […] at the time this land Delia Avenue was transferred on 11 June 1977, I was "out of the country" living in Honolulu, Hawaii with my husband Ray Jemison […] I had no knowledge my name was on this land and I was 20 years old or so. […] I claim phobias caused from the Lands Office passing over the counter my whole block of Wyong residential property at Delia Avenue Wyong my estate land, (as to the "fraudulent conversion" of my property, and the forgery of my signatures). 1. The second letter included the following: (1) The lands Department breached the "Lands Titles Act" against me causing the loss of Delia Avenue Wyong my estate fraud transactions of this property on 11 June 1977. And in 1981 this Wyong land is transferred again and the Lands Office and it is passed over the counter forgery and fraud to my name and signatures. The signatures on the land transfers are not mine but the forgery of a family member my sister Catherine on each occasion, the Lands Office breached the "Lands Titles Act" they have caused fraud conversion of my land over the counter. […] (3)The property is sold in 1981 to 8 Mr MacKinnon from Toukley and this is done without my knowledge. […] (5) At the time the property Delia Ave is transferred on 11 June 1977 I was out of the country […]. So, I had no knowledge of this transfer or that my name is on it. In 1981 when it was sold again, I was back in Australia and had no knowledge of any of these lands transactions, transfers, sale of the property to my name fraud, and forgery of my signatures. (6) […] My mother was at the Lands Office with my sister Catherine to do the Delia Ave transfer on 11 June 1977 and my maiden name Budd is forged by Catherine and then she also forged my married name Jemison, and mispelt [sic] my married name. […] 1. On 28 February 2007 there was a directions hearing before a registrar. It appears that Ms Budd's statement of claim with the two letters of 30 January 2007 annexed was placed on the Court file at that time but it was not then, or at any later time, stamped as filed. At the directions hearing the defendant informed the registrar of his intention to file a notice of motion seeking an order for summary dismissal of the proceedings under r 13.4 of the Uniform Civil Procedure Rules. A direction was made that such a notice of motion should be filed by 6 March 2007. 2. Ms Budd sent a copy of her statement of claim and the two annexed letters dated 30 January 2007 to the defendant by facsimile on 28 February 2007 accompanied by approximately 30 additional pages of sundry material, of no apparent relevance. On 6 March 2007 the defendant filed a notice of motion seeking summary dismissal under r 13.4 and in the alternative dismissal for want of prosecution with due dispatch under r 12.7(1). In an affidavit supporting this application the defendant's employed solicitor deposed as follows: The Defendant cannot discern the nature of the cause of action pleaded. The Defendant cannot file a defence as it does not understand the documentation it has received on 28 February 2007.

Conclusion of the 2006 proceeding 1. On 12 March 2007 the defendant's notice of motion came before Hidden J. His Honour made the following orders: 1 The statement of claim is struck out. 2 The plaintiff is given leave to re-plead her claim on or before 23 April 2007. 3 The plaintiff is referred to the Registrar for purpose of referral to pro bono scheme for advice, under Pt 66A of the Supreme Court Rules. 4 Costs reserved. 1. On 5 April 2007 Ms Budd was notified by a registrar of the Court in writing that Mr Mark Cohen of counsel had agreed to provide her with legal assistance and that copies of the documents held on the Court file had been forwarded to him. She was provided with Mr Cohen's phone number. After reviewing the papers Mr Cohen wrote to the registrar on 11 April 2007 expressing concern about Ms Budd's ability to provide rational instructions and stating that he could not discern any viable cause of action in respect of a transfer of property to Ms Budd on 11 June 1977. He did not address the alleged transfer to Mr MacKinnon in 1981. 2. Mr Cohen's letter was forwarded by the registrar to Ms Budd. On 12 April 2007 she replied in a document headed "Complaint". In this she asserted that Mr Cohen was wrong and had not taken all of her documents into account. She wrote as follows: I wish to proceed with this. I will seek legal action to do this properly as Mr Cohen he went serious wrong and he misconceived this all. Please keep this on file for me. 1. Mr Cohen wrote a further letter to the registrar on 12 April 2007 advising that he had spoken to Ms Budd by phone but had been unable to obtain "even the most rudimentary instructions" due to Ms Budd being "very agitated and almost hysterical" for much of the conversation. He found her to be not rational and formed the impression that she would require the appointment of a tutor for the purpose of conducting any litigation. 2. Ms Budd did not file a further statement of claim by 23 April 2007, nor has she done so at any time thereafter. On 19 June 2007 the Acting Prothonotary wrote to Ms Budd in these terms: I note that on 12 March 2007 Justice Hidden made certain orders including that the present Statement of Claim was struck out. You were also given leave to re-plead the claim on or before 23 April 2007. I note that the Statement of Claim has not been re-plead[ed] accordingly the matter remains struck-out. 1. As Ms Budd did not file a re-pleaded statement of claim by 23 April 2007, nor make any application to extend time under Hidden J's order, the proceedings have been treated by the registry as at an end. The file has been closed since 19 June 2007.

Ms Budd's claim on the Registrar-General in 2013 1. In an affidavit in support of her present application Ms Budd has deposed to her dealings with the Registrar-General since her statement of claim in the 2006 proceeding was struck out. On 5 August 2013 Mr Peter Baker, solicitor, wrote to the Registrar-General on Ms Budd's behalf claiming compensation in respect of the transfer of the Delia Avenue land to Mr MacKinnon in 1981. The letter enclosed a statutory declaration of Ms Budd. Neither the letter nor the statutory declaration are in evidence on the application now before the Court but the particulars of the August 2013 claim can be inferred from subsequent correspondence from the Registrar-General that is annexed to Ms Budd's affidavit. 2. On 23 December 2013 the Registrar-General replied to Mr Baker, seeking clarification of an inconsistency in the statutory declaration and information regarding the quantum of Ms Budd's alleged loss. By 28 October 2014 there had been no response to this requisition, despite a reminder being sent on 9 May 2014. In those circumstances the Registrar-General wrote again to Mr Baker on 28 October 2014 advising that the claim was formally refused under s 131(4) and (8A). Subsection (8A) was inserted in s 131 with effect from 13 May 2009, in the following terms: (8A) Without limiting the power of the Registrar-General to refuse a claim in accordance with subsection (4), the Registrar-General may refuse a claim on the ground that a claimant has failed to comply with a request made under subsection (7) if: (a) the request was made by notice in writing, and (b) at least 2 months have elapsed since the notice was given to the claimant. 1. On 28 October 2014 Mr Baker belatedly replied to the Registrar-General's requisition, supplying the information requested. Then in a letter of 5 February 2015 he submitted that Ms Budd's claim had been made under s 129 of the Real Property Act and that the Registrar-General had misapprehended it as a claim by way of administrative proceeding under s 131. He submitted that there had been no determination under s 129 and he also asked that consideration be given to an ex-gratia payment by the Minister. These submissions were misconceived. Section 129 prescribes the basis upon which a claim for compensation may be made. However, the procedure for pursuing such a claim is provided for in ss 131 and 132. 2. On 13 February 2015 the Registrar-General again wrote to Mr Baker. In that letter it was pointed out that Ms Budd had acknowledged, presumably in her original statutory declaration, that she became aware in 2001 that the Delia Avenue property had been transferred from her name to that of a bona fide purchaser. Ms Budd's allegation was that the signature of herself as transferor was forged. The Registrar-General stated that her claim was statute barred and reiterated that it was formally refused. In this letter the Registrar-General referred to the 2006 proceeding and said that he understood it had been dismissed "in or around 2007".

The present application for leave under s 14 of the Vexatious Proceedings Act 1. Ms Budd's current summons for leave under the Vexatious Proceedings Act claims the following principal relief: 1 The plaintiff, having been declared a vexatious litigant, is granted leave to resume proceedings in Matter No 265622/2006 in the Supreme Court of NSW. 2 The plaintiff is to proceed nunc pro tunc in relation to the orders made by Deputy Registrar Hagget on 30 January 2007 in Matter No 265622/2006. 3 Accordingly, the plaintiff is granted leave to file an Amended Statement of Claim in relation to Matter No 265622/2006 in accordance with the orders of Deputy Registrar Hagget made on 30 January 2007. 4 That the plaintiff be granted leave to commence such proceedings pursuant to s 132(2)(b). 1. The claim for this relief is untenable at many levels. To begin with, the 2006 proceeding was irremediably flawed. Ms Budd's present affidavit annexes the transfer from herself to Mr MacKinnon in 1981. It is dated 30 October in that year and it was registered on 15 December 1981. The event giving rise to compensable loss as a result of the transfer was the registration. If the instrument should not have been registered, then loss would have been sustained immediately. By force of s 131(2) of the Real Property Act, as in force in 2006 and as still in force at the present time, the six-year limitation period within which Ms Budd would have had to make a claim upon the Registrar-General expired on 15 December 1987. 2. Further, Ms Budd's 2006 proceeding in this Court was incompetent because she had not first commenced an administrative proceeding under s 131 and had not obtained a determination of any such proceeding: s 132(2)(a). In those circumstances Ms Budd required either the leave of the Court or the consent of the Registrar-General to file her 2006 summons. She obtained neither consent nor leave. Ms Budd never applied to the Court for leave. 3. By the time Ms Budd's summons was filed in 2006 the statutory limitation period for her to make a claim on the Registrar-General under s 131 had been expired for nearly 19 years. Even if Ms Budd had sought the Court's leave pursuant to s 132(2), there is no basis upon which leave could have been granted, or could now be granted, for the 2006 proceeding. If the Court should permit the commencement of such a matter 19 years after expiry of time for the necessary antecedent s 131 claim, the statutory time limit for administrative proceedings would be circumvented. A grant of leave in those circumstances would defeat the scheme of Pt 14 of the Act. 4. Irrespective of Ms Budd requiring leave under the Vexatious Proceedings Act, she would not be permitted to resume prosecution of the 2006 proceeding as an ordinary litigant. The 2006 proceeding was never maintainable and it would be an abuse of process for Ms Budd to revive activity in a proceeding that she has not prosecuted for 13 years. 5. For a number of reasons Ms Budd could not commence a fresh proceeding in this Court to pursue her claim for compensation. She has now satisfied the prerequisite of s 132(2)(a), in that administrative proceedings under s 131 were commenced on 5 August 2013 and determined on 28 October 2014 – or, at latest on 13 February 2015. However a fresh proceeding in this Court would have to have been commenced within three months of the Registrar-General's determination; that is, at latest, by 13 May 2015. This is a consequence of an amendment of subs (2) of s 132 and the insertion of subs (2A) with effect from 13 May 2009. Since that date those subsections have been in the following terms: (2) Any such court proceedings may only be commenced: (a) if administrative proceedings have been commenced and determined in relation to the compensable loss, or (b) by leave of the court or with the consent of the Registrar-General. (2A) Court proceedings commenced in accordance with subsection (2)(a) must be commenced within 3 months of the date on which the administrative proceedings have been determined in relation to the compensable loss 1. Also, for reasons given above, the claim is substantively out of time relative to the date of the alleged act or omission giving rise to compensable loss. The Registrar-General apparently thought the claim accrued only when Ms Budd became aware of the transfer to Mr MacKinnon, in 2001. That view was unduly favourable to Ms Budd. For reasons given above, the claim accrued on 15 December 1981. Even on the Registrar-General's view that the claim accrued in 2001, the six-year time limit would have expired in 2007 and Ms Budd's administrative proceeding under s 131 would have been about six years out of time when initiated by Mr Baker's letter of 5 August 2013.

Orders 1. For these reasons orders will be entered to the following effect: 1. The plaintiff's application pursuant to s 14 of the Vexatious Proceedings Act 2008 for leave to re-commence proceedings No 265622/2006 is refused. 2. The summons is dismissed.

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