Clarke v Hicksons Lawyers - [2021] NSWCA 100

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clarke v Hicksons Lawyers [2021] NSWCA 100
Hearing dates: 17 May 2021
Date of orders: 21 May 2021
Decision date: 21 May 2021
Before: Macfarlan JA at [1]
Gleeson JA at [2]
Decision:
Summons seeking leave to appeal be dismissed with costs.

Catchwords:
APPEALS – application for leave – applicant brought proceedings against respondent in District Court claiming damages for alleged misconduct in other proceedings – where respondent acted for parties in hostile civil litigation involving the applicant – proceedings summarily dismissed as disclosing no reasonable cause of action – where no issue of principle or question of general importance raised by appeal – where applicant not demonstrated an injustice which is more than merely arguable – leave refused

Legislation Cited:
District Court Act 1973 (NSW), s 127(2)(a)
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(b), 42.1
Vexatious Proceedings Act 2008 (NSW), s 8(7)(b)
Workers Compensation Act 1987 (NSW), Div 4, Pt 3

Cases Cited:
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532; (2019) 32 DCLR (NSW) 18
Clarke v South Eastern Sydney Local Health District [2021] NSWCA 84
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63

Category: Procedural rulings
Parties: Sharmain Daisy Clarke (Applicant)
Hicksons Lawyers (Respondent)
Representation:
Counsel:
Sharmain Daisy Clarke (Self-represented) (Applicant)
D A Lloyd SC / N Simone (Respondent)
Solicitors:
Sharmain Daisy Clarke (Self-represented) (Applicant)
K&L Gates (Respondent)

File Number(s): 2021/28694
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

4 December 2020

Before:

Norton SC DCJ

File Number(s):

2020/128851

Judgment

MACFARLAN JA: I agree with Gleeson JA.
GLEESON JA: The applicant, Sharmain Daisy Clarke (Ms Clarke), seeks leave to appeal from a judgment of the District Court delivered on 4 December 2020 summarily dismissing proceedings commenced by her against Hicksons Lawyers. That order was made pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4(1)(b) which provides that the court may order that proceedings be dismissed generally or in relation to any claim for relief if it appears to the court that no reasonable cause of action is disclosed.
For the purposes of determining whether an appeal lies as of right or by way of leave, the summary dismissal order is interlocutory. Accordingly, Ms Clarke requires leave to appeal: District Court Act 1973 (NSW), s 127(2)(a); Macatangay v State of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCA 100
Decision Date: 21 May 2021

CaseChat Overview and Summary

Clarke (the applicant) sought leave to appeal from a decision of the District Court of New South Wales, which had summarily dismissed proceedings brought by the applicant against Hicksons Lawyers (the respondent). The applicant's claim alleged misconduct by the respondent, who had acted for parties in hostile civil litigation involving the applicant.

The primary legal issue before the Court of Appeal was whether the District Court had erred in summarily dismissing the applicant's claim as disclosing no reasonable cause of action. This required the Court of Appeal to consider whether there was any real prospect of the applicant succeeding in establishing a cause of action against the respondent.

The Court of Appeal found that the applicant's appeal did not raise any issue of principle or question of general importance. Furthermore, the applicant had not demonstrated an injustice that was more than merely arguable. Consequently, the Court of Appeal concluded that leave to appeal should not be granted.

The summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons seeking leave to appeal be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Clarke v Hicksons Lawyers [2021] NSWCA 100
Hearing dates:	17 May 2021
Date of orders:	21 May 2021
Decision date:	21 May 2021
Before:	Macfarlan JA at [1] Gleeson JA at [2]
Decision:	Summons seeking leave to appeal be dismissed with costs.
Catchwords:	APPEALS – application for leave – applicant brought proceedings against respondent in District Court claiming damages for alleged misconduct in other proceedings – where respondent acted for parties in hostile civil litigation involving the applicant – proceedings summarily dismissed as disclosing no reasonable cause of action – where no issue of principle or question of general importance raised by appeal – where applicant not demonstrated an injustice which is more than merely arguable – leave refused
Legislation Cited:	District Court Act 1973 (NSW), s 127(2)(a) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(b), 42.1 Vexatious Proceedings Act 2008 (NSW), s 8(7)(b) Workers Compensation Act 1987 (NSW), Div 4, Pt 3
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Clarke v Nursing and Midwifery Council of New South Wales (No 3) [2019] NSWDC 532; (2019) 32 DCLR (NSW) 18 Clarke v South Eastern Sydney Local Health District [2021] NSWCA 84 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63
Category:	Procedural rulings
Parties:	Sharmain Daisy Clarke (Applicant) Hicksons Lawyers (Respondent)
Representation:	Counsel: Sharmain Daisy Clarke (Self-represented) (Applicant) D A Lloyd SC / N Simone (Respondent) Solicitors: Sharmain Daisy Clarke (Self-represented) (Applicant) K&L Gates (Respondent)
File Number(s):	2021/28694
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 4 December 2020 Before: Norton SC DCJ File Number(s): 2020/128851