Supreme Court
New South Wales
Medium Neutral Citation: Byrnes v Majak [2020] NSWSC 906 Hearing dates: 25 June 2020 Date of orders: 25 June 2020 Decision date: 25 June 2020 Jurisdiction: Common Law Before: Rothman J Decision: (1) The proceedings be dismissed as against the first and third defendants.
(2) The Respondent pay costs of the Applicants, of and incidental to the proceedings, on the ordinary basis.
(3) Costs are payable forthwith.
Catchwords: CIVIL PROCEDURE – SUMMARY Disposal – Dismissal of proceedings against first and third defendants, solicitors for second defendant in prior proceedings – no reasonable cause of action disclosed.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28
Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Batistatos v The Road Transport Authority NSW (2006) 226 CLR 256; [2006] HCA 27
Clavel v Savage [2013] NSWSC 775
Cox v Journeaux (1935) 52 CLR 713; [1935] HCA 48
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Fawcett v Cannon [2007] NSWSC 1267
General Steel Industries v Commissioner for Railways New South Wales (1964) 112 CLR 125; [1964] HCA 69
Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33
Shalhoub Holdings Pty Limited v Commonwealth Bank of Australia [2006] NSWSC 607
Texts Cited: Sappideen and Vines, Fleming’s Law of Torts (10th ed, 2011, Thomson Reuters)
Category: Procedural and other rulings Parties: Russell Craig Byrnes (First Applicant)
Matthew Byrnes (Second Applicant)
Zofia Bozena Majak (Respondent)Representation: Counsel:
Solicitors:
J Emmett (Applicants)
Self-represented (Respondent)
YPOL Lawyers (Applicants)
File Number(s): 2019/400687
ex tempore Judgment
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HIS HONOUR: Before the Court is a motion brought by the first and third defendants by notice filed 30 April 2020.
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The first and third defendants, being respectively Russell Craig Byrnes and Matthew Byrnes, seek summary dismissal, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter “UCPR”) r 13.4, of the plaintiff’s proceedings against them, which were commenced initially and are now the subject of an Amended Statement of Claim, filed 23 March 2020.
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Alternatively, they seek that the Amended Statement of Claim be struck out pursuant to UCPR r 14.28.
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The applicants on the motion rely on the Affidavit of Anna Williams, solicitor for the applicants, affirmed 21 May 2020. They have also tendered the respondents’ Amended Statement of Claim filed 26 March 2020 in District Court proceedings together with a copy of the defence in those proceedings of Mr Rose and Ms Rebeiro filed 6 May 2020.
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The respondent in response to that evidence relies on her Affidavit of 10 June 2020 and, to the extent necessary, the Affidavit of 11 June 2020 filed in the District Court proceedings.
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The proceedings have an unfortunate history. Unfortunate in the sense of the intertwining of various proceedings between at least the plaintiff and the second defendant.
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The respondent to the application, Ms Majak and…
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CaseChat Overview and Summary
The primary legal issues the court had to decide were whether the plaintiff had disclosed a reasonable cause of action against the defendants and whether the proceedings should be summarily dismissed. The court had to examine the merits of the allegations to determine if they had any reasonable prospects of success. The defendants argued that the plaintiff had failed to disclose a reasonable cause of action, thereby justifying a summary dismissal.
The court, in considering the application for summary dismissal, analysed the particulars of claim provided by the plaintiff. It determined that the allegations did not sufficiently establish a reasonable cause of action against the defendants. The court held that the plaintiff had not demonstrated a plausible basis for the claims of professional negligence or breach of fiduciary duty. Consequently, the court found that there were no reasonable prospects that the plaintiff's case could succeed and dismissed the proceedings against the first and third defendants, who were solicitors for the second defendant in prior proceedings.
The court's final orders were that the proceedings against the first and third defendants be dismissed without any order as to costs. The dismissal was based on the conclusion that no reasonable cause of action had been disclosed.
Orders
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