Datta v AAI Limited trading as GIO

[2025] NSWSC 112

Supreme Court

New South Wales

Medium Neutral Citation:

Datta v AAI Limited trading as GIO & Ors [2025] NSWSC 112

Hearing dates:

21 May 2024

Date of orders:

26 February 2025

Decision date:

26 February 2025

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Proceedings dismissed.

(2)   The plaintiffs shall pay the defendants’ costs of and incidental to the proceedings, including the costs of the motions.

(3)   Any party seeking a special or different order for costs may do so within 14 days of the date of this judgment.

(4)   Such application shall be made in writing by a submission of not more than 5 pages, not including a document upon which reliance is placed.

(5)   Any party disadvantaged by such an application may respond to the application in a further 14 days by a submission of not more than 5 pages, not including any document upon which the party may rely by way of evidence.

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — No reasonable cause of action disclosed

Legislation Cited:

Competition and Consumer Act 2010 (Cth), ss 236, 237

Fair Trading Act 1987 (NSW), s 28

Supreme Court Act 1970 (NSW), s 75

Workers Compensation Act 1987 (NSW), s 60

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 2A, 105

Uniform Civil Procedure Rules 2005, r 13.4

Cases Cited:

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

General Steel Industries Inc v Commissioner for

Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52

Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28

Category:

Principal judgment

Parties:

Mrinal Datta (First Plaintiff) (self-represented)
Raj Ama Tembur (Second Plaintiff) (self-represented)
AAI Limited trading as GIO (First Defendant)
Matthew Garling (Second Defendant)
Nicole Compton (Third Defendant)
Joshua Dale (Fourth Defendant)
Paul Stockley (Fifth Defendant)

Representation:

Counsel:
L D Robison (First Defendant)
N Simone (Second Defendant)
S Maybury (Third Defendant)
K Holcombe (Fourth Defendant)
Q M Noakhtar (Fifth Defendant)

Solicitors:
Hall & Wilcox (First Defendant)
Mills Oakley (Second Defendant)
DLA Piper (Third Defendant)
Moray & Agnew (Fourth Defendant)
Barry Nilsson Lawyers (Fifth Defendant)

File Number(s):

2023/224777

Publication restriction:

N/A

JUDGMENT

1. HIS HONOUR: The Court has before it a motion to strike out summarily the proceedings commenced by the first and second plaintiff, Mrinal Datta and Raj Ama Tembur. The defendants seek that the statement of claim and the proceedings be summarily dismissed on the basis that no reasonable cause of action is disclosed and that the proceedings are taken as an abuse of process.

2. The proceedings have a convoluted history and the chronology, which it is unnecessary to set out in full, commences in 2001 when the first plaintiff was working as a security officer and was injured in an assault. The first defendant, trading as GIO, was the insurer for the former employer at the time. In 2002, the first plaintiff returned to India and the second plaintiff commenced work as his carer. The plaintiffs married each other in 2015.

3. On 11 November 2018, the second defendant, Mr Matthew Garling, commenced acting for the first plaintiff. On 26 June 2019, Mr Garling lodged an application to resolve a dispute with the Workers Compensation Commission on behalf of the first plaintiff, relating to domestic assistance compensation. The third defendant was counsel and was instructed to advise and to appear in the proceedings commenced by that application.

4. On 7 August 2019, GIO offered Mr Datta $100 per week for future commercial assistance, which was refused. On 3 September 2019, the Workers Compensation Commission ordered GIO to pay the reasonable costs of the provision of commercial domestic assistance up to 19 hours per week. In April 2020, the first plaintiff instructed the fourth defendant, another solicitor, who commenced acting. In late 2020, the first plaintiff instructed the fourth defendant to seek a further determination from the Workers Compensation Commission against GIO for gratuitous domestic assistance provided by the second plaintiff (the first plaintiff’s wife).

5. On 2 November 2021, the fourth defendant lodged an application to resolve a dispute relating to the gratuitous domestic assistance. The fourth defendant instructed the fifth defendant to advise and appear in the proceedings as counsel.

6. On 8 and 16 February 2022, the fourth defendant provided advice to the plaintiffs regarding an offer from GIO to pay gratuitous care at a particular rate, which included advice as to the risks of not accepting such an offer and being awarded less. The first plaintiff refused the offer.

7. On 18 March 2022, the Personal Injury Commission awarded the first plaintiff 19 hours of gratuitous domestic assistance per week from 3 September 2019 at a rate which was 10 cents more per week than the rate offered earlier by GIO.

Third and fifth defendants

8. Each of the third and fifth defendants were counsel advising on the litigation and engaged in negotiations in relation to the litigation. Each of them is governed by the immunity otherwise attaining to counsel in relation to those matters that arise in Court or ancillary to the litigation process. The immunity is based on public policy relating, amongst other things, to the finality of the litigation process. ^[1]

   1. D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [31]-[39]; [2005] HCA 12; Giannarelli v Wraith (1988) 165 CLR 543 at 555-560; [1988] HCA 52.

9. The conduct of the third and fifth defendants is the subject of proceedings for that which was done in Court or so intimately connected with the conduct of a case in Court that the immunity applies. Nevertheless, the third and fifth defendant rely upon the general provisions on which the other defendants rely.

10. These proceedings were initially commenced on 14 July 2023. The commencement was irregular in that it was sought to be commenced by summons.

11. Pursuant to orders issued by the Court, the plaintiffs filed a statement of claim on 31 October 2023. The statement of claim does not particularise or adequately particularise any professional negligence or any other negligence on which the plaintiffs might rely.

12. Rather, the statement of claim raises serious allegations of dishonesty and reckless actions, without the pleading of any facts that would give rise to an inference of or a conclusion on any such issue. The claim in that respect against each of the defendants is manifestly groundless.

13. Essentially, the plaintiffs rely upon their dissatisfaction with the conclusions reached by the Workers Compensation Commission and the Personal Injury Commission. Each of those decisions is extant and has not been appealed or quashed. Prima facie the determinations reflect that which the law requires and the entitlement of the first plaintiff.

14. The statement of claim does not seek to appeal or quash, albeit very much out of time, either one of the findings. The orders of the Workers Compensation Commission and then the Personal Injury Commission are binding and, while extant, conclude the proceedings.

15. While the plaintiffs might, were they so to choose, collaterally challenge the proceedings for lack of jurisdiction or possibly error of law, on each of which issue the Court as presently constituted does not comment, such a collateral challenge is not made and the officers of the State and/or the tribunals themselves are not the subject of these proceedings.

16. The foregoing would of itself dispense with the claims against the defendants on behalf of the first plaintiff. The second plaintiff, on the pleadings and facts known to the Court, has no interest or cause of action against any of the defendants.

17. As against the first defendant, the statement of claim, once more, seeks to re-agitate that which was determined by the Workers Compensation Commission and/or the Personal Injury Commission at the various stages of the previous proceedings. Neither body is a party to these proceedings.

18. Further, the only possible basis upon which the first order sought against the first defendant can be sought is that under s 60 of the Workers Compensation Act 1987 (NSW) (hereinafter the 1987 Act), being an order relating to medical treatment. It is a remedy that is available before the Personal Injury Commission and not in these proceedings, except to the extent that it may arise as a result of proceedings seeking to challenge or quash determinations made by one or other of the Tribunals.

19. The provisions of s 2A of the 1987 Act require that it be construed as forming part of Workplace Injury Management and Workers Compensation Act 1998 (hereinafter the 1998 Act). Section 105(1) of the 1998 Act makes clear that the jurisdiction of the Personal Injury Tribunal is exclusive in relation to those matters that arise under the 1988 Act or the 1987 Act. This Court, in its original jurisdiction, does not have the jurisdiction to deal with a claim under s 60 of the 1987 Act.

20. The second order sought in the statement of claim seeks to have the Court exercise its own jurisdiction and “examine the [Workers Compensation Commission] matter … to determine a clear winner”. Assuming without accepting that this is an attempt to re-agitate those matters determined by the Workers Compensation Commission, it is and must be an abuse of process in the absence of an appeal or allegation of want or excess of jurisdiction or claim of an error of law in one or other of the tribunals.

21. Further, in the absence of an allegation of error of law or want or excess of jurisdiction, there can be no legal basis for the Court, as presently constituted or otherwise, to redetermine those matters already determined either by the Workers Compensation Commission or the Personal Injury Commission.

22. The fifth and eighth orders sought in the statement of claim seek a remedy by way of “unconscionability” and/or equitable compensation against the GIO for the manner in which it undertook the proceedings before the Workers Compensation Commission and/or the Compensation Court of New South Wales and/or the Personal Injury Commission. There is no allegation of “special disadvantage” that can be upheld in circumstances where, against the GIO, the plaintiffs were represented by experienced solicitors and counsel and were appropriately advised.

23. Moreover, if it were necessary to decide the question, it would seem to me that the principles that underpin immunity of counsel and other persons participating in proceedings would operate to grant an immunity to the first defendant in its capacity as the respondent to the proceedings for workers compensation benefits. A party to proceedings enjoys the same or similar immunity to counsel, witnesses and judicial officers.

24. The agitation of a claim against the first defendant for “unconscionable conduct”, being conduct that it engaged in while acting, properly, as a respondent to proceedings for compensation would, necessarily, undermine the principle of finality otherwise associated with proceedings and which principles, at least in part, form the basis for the immunity otherwise granted to participants in the legal process.

25. The orders sought in paragraphs 5 and 8 of the statement of claim are an abuse of process and otherwise have no basis in admitted fact or in any allegation of fact in the statement of claim.

26. The remedy sought in paragraph 7 of the statement of claim seeks orders for damages or compensation under ss 236 and 237 of Sch 2 of the Competition and Consumer Act 2010 (Cth), known as the Australian Consumer Law, without any claim for any liability under the Australian Consumer Law. I leave aside for present purposes the circumstance that some of the defendants are not corporations.

27. The Court, as presently constituted, assumes that the conduct of the non-corporate entities is either ancillary to the conduct of the corporate entity or would be amenable to orders under s 28 of the Fair Trading Act 1987 (NSW), which imports by reference, the provisions of the Australian Consumer Law and applies them to persons not otherwise bound by the Australian Consumer Law. In those circumstances, a re-pleading would resolve the issue and a summary dismissal would be inappropriate.

28. Nevertheless, notwithstanding the assumptions earlier made as to liability, there is no provision which asserts any liability under the Australian Consumer Law or the Australian Consumer Law (NSW), its counterpart provision. If, as may be suspected, the claim is in relation to unconscionable conduct, then it fails for the same reasons provided above in relation to the general law of taking unconscientious advantage.

29. The statement of claim also seeks a declaration that the second, third, fourth and fifth defendants are concurrent wrongdoers (see Paragraph 6 thereof). The Supreme Court Act 1970 (NSW) provides that the Court has jurisdiction to make binding declarations of right whether or not any consequential relief has been sought. ^[2]

    2. Supreme Court Act 1970 (NSW), s 75.

30. The provisions granting jurisdiction to make declarations also provide that proceedings will not be open to objection on the ground that a merely declaratory judgment or order has been sought. Nevertheless, what is sought by the claim for order 6 is not a declaration in the ordinary sense of the term.

31. First, it would be necessary to determine that each of the second, third, fourth and fifth defendants were tortfeasors. Secondly, it would be necessary to determine that they owed a duty of care and thirdly there would need to be a “right” that was sought to be declared. In the absence of proceedings otherwise validly taken against any of the aforesaid defendants such a declaration would be inappropriate.

32. Otherwise, among other reasons, because the claim against the alleged tortfeasors must be struck out, there is no basis upon which the Court is able to declare that any of the parties has engaged in a tort and/or is liable to either the first or second plaintiff.

33. In the absence of any pleading which alleges or which gives rise to an arguable case as to the commission of a tort by any one of the defendants or for which any one of the defendants may be sued and/or for which any or one of the defendants owes a duty of care, a declaration of the kind sought in order 6 of the statement of claim is an abuse of process and otherwise embarrassing.

34. The claim against the second and fourth defendants is a claim against solicitors engaged for the purpose of undertaking proceedings before the relevant compensation tribunal. It would seem on its face that the conduct about which complaint is made is conduct either performed in Court or so intimately connected with the conduct of a case in Court that it would also be subject to the immunity to which earlier reference has been made.

35. Further, none of the allegations in the statement of claim can amount to or do amount to a claim that is maintainable in tort. The allegations that are made are allegations relating to the failure to lodge documents promptly; unreasonable conduct of litigation; and the failure to make an offer that was acceptable. In relation to the fourth defendant as a matter of fact, the offer was made by the plaintiff himself. Further, the plaintiff’s instructions were not to compromise or engage in the conciliation process in relation to any such offer.

36. Whatever be the situation, the “damage” suffered as a consequence of the alleged conduct of the second or fourth defendants is “damage” arising from the decisions of the relevant Personal Injury tribunal. This is not damage.

37. Moreover, in the absence of a challenge or appeal against the decision of either one of the tribunals, the litigation sought to be agitated would be litigation seeking to reagitate the correctness of the decision of the tribunal and, if successful, would lead, necessarily, to inconsistent factual findings from the Court and the Tribunals. In other words, either the claim, assuming for present purposes it was properly made, would be an abuse of process or it would be unsuccessful.

Approach of the Court

38. The High Court in D’Orta-Ekenaike, supra, made the following comment:

“34.   A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue finally decided in the original proceeding^. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.

35.   The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so‑called ‘fresh evidence rule’) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: ‘[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial’.

36.   The rules based on the need for finality of judicial determination are not confined to rules like those mentioned above. Those are rules which operate between the parties to a proceeding that has been determined. Other rules of law, which affect persons other than the parties to the original proceeding, also find their justification in considerations of the need for finality in judicial decisions. And some of those rules are rules of immunity from suit.” ^[3] [Footnotes omitted.]

3. D’Orta-Ekenaike, [34]-[36] (Gleeson CJ, Gummow, Hayne and Heydon JJ).

39. The claims made by the first plaintiff and in which the second plaintiff joins need to rely upon damage. The only damage asserted is a damage that purportedly arises from the incorrectness of the tribunals’ decisions that determined the claims made on behalf of the first plaintiff in circumstances where there is and has been no appeal against either determination nor a collateral challenge to the capacity of either of the tribunals to determine the matters in accordance with the manner in which they have.

40. In order to satisfy the Court that no reasonable cause of action arises, an applicant is required to satisfy the Court of the classic test that the proceeding is obviously so untenable that it cannot possibly succeed. ^[4] The provisions of the Uniform Civil Procedure Rules 2005 (hereinafter UCPR), and, in particular, r 13.4, allow the Court to dismiss proceedings summarily, either in general or in respect of a particular claim, where it appears to the Court that the proceedings are frivolous or vexatious, there is no reasonable cause of action disclosed, or the proceedings are an abuse of process.

    4. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130; [1964] HCA 69.

41. In exercising the jurisdiction conferred by the provisions of UCPR r 13.4, the Court is required to give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) which is to “facilitate the just, quick and cheap resolution of the real issues” between the parties. Those “real issues” are defined by the pleadings.

39. A Court will only strike out proceedings summarily in exceptional circumstances. Ordinarily, a party is entitled to have the opportunity to assert or to defend the party’s rights and, thereby, the party has her or his right to the party’s day in Court in relation to a claim sought to be agitated. Only in circumstances where a Court is satisfied that the claim is so obviously untenable or is manifestly groundless or manifestly faulty may the Court take the exceptional course of striking out the proceedings. ^[5]

    5. General Steel at 129 (Barwick CJ).

40. In those circumstances, where there is a possibility that a re-pleading will give rise to a good cause of action, the course taken by the Court should be one of allowing the repleading rather than striking out the proceedings. This is not such a case. On the basis of the pleadings and the facts alleged therein, the claim is “hopeless” and any reasonable prospect of success is “fanciful”. ^[6]

    6. Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28.

41. For the reasons already provided, the Court considers that the claim of the plaintiffs is hopeless, and no reasonable cause of action is disclosed. Further, to the extent that there can be shown to be “damage”, which lies at the heart of any tortious conduct, the proceedings seek to have the Court issue judgment that would be inconsistent with extant decisions, within jurisdiction, of tribunals who have or had the exclusive jurisdiction to determine such issues. This would be an abuse of process and would bring the administration of justice into disrepute.

42. For the foregoing reasons, the Court makes the following orders:

1. Proceedings dismissed.

2. The plaintiffs shall pay the defendants’ costs of and incidental to the proceedings, including the costs of the motions.

3. Any party seeking a special or different order for costs may do so within 14 days of the date of this judgment.

4. Such application shall be made in writing by a submission of not more than 5 pages, not including a document upon which reliance is placed.

5. Any party disadvantaged by such an application may respond to the application in a further 14 days by a submission of not more than 5 pages, not including any document upon which the party may rely by way of evidence.

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Endnotes

Decision last updated: 26 February 2025