De Varda v Austin Legal Solicitor
[2013] NSWSC 1919
•30 October 2013
Supreme Court
New South Wales
Medium Neutral Citation: De Varda v Austin Legal Solicitor [2013] NSWSC 1919 Hearing dates: 30/10/2013 Decision date: 30 October 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Pursuant to r 14.28 of the Uniform Civil Procedure Rules order that the Statement of Claim filed 3 September 2013 be struck out.
(2) Order that the plaintiffs are to file and serve on or before 4pm 9 December 2013 any Notice of Motion for leave to file an Amended Statement of Claim to which there must be annexed any proposed Amended Statement of Claim.
(3) Direct that the plaintiffs file an affidavit or affidavits setting out all facts, matters and circumstances upon which they rely to support the proposed Amended Statement of Claim on or before 4pm, 9 December 2013.
(4) Direct that the defendant file and serve any affidavit in response by 4pm 24 January 2014.
(5) Grant leave to the plaintiffs to make any Notice of Motion returnable before the Court on Friday 7 February 2014 at 9am before the Registrar.
(6) Stand over the Notice of Motion filed by the plaintiffs on 3 September 2013 and on 28 October 2013 to 9am 7 February 2014 before the Registrar.
(7) Stand over the balance of the defendant's Notice of Motion filed 2 October 2013 to 9am on 7 February 2014 before the Registrar.
(8) Reserve all question of costs.
Catchwords: PROCEDURE - various motions - where statement of claim is manifestly defective - where principles of finality are limited by a finding of fraud - no general point of principle. Category: Procedural and other rulings Parties: Joseph De Varda (P1)
Rabbi Dr Samuel Tov-Lev (P2)
David Cliffe (P3)
Austin Legal Solicitor (D)Representation: Counsel:
In person (P1-P3)
T M Faulkner (D)
Solicitors:
In person (P1-P3)
Gilchrist Connell (D)
File Number(s): 2013/266923
ex tempore Judgment
Before me today are three Notices of Motion. The defendant moves by Notice of Motion dated 2 October 2013, for the dismissal of the proceedings, or alternatively for the striking out of the Statement of Claim together with a series of ancillary orders.
The plaintiffs move by Notice of Motion filed 3 September 2013, for an order that the proceedings be tried with a jury, and for ancillary orders.
They also move by Notice of Motion dated 28 October 2013, for leave to amend their Statement of Claim. It was agreed that this Motion, although listed for first return on a later date, should be heard by the Court today.
Background
It is only necessary for me to indicate shortly the compass of events. The plaintiffs were unsuccessful in long running proceedings in the Equity Division of this Court, which included judgments of Hallen AsJ (as his Honour was then), Nicholas, Black and McDougall JJ, dealing with various applications and appeals, and, as well, the substantive proceedings.
As well, the second plaintiff, Rabbi Tov-Lev, brought proceedings in the Consumer, Trader & Tenancy Tribunal ("CTTT"), which were unsuccessful.
Underlying the two sets of unsuccessful proceedings is a dispute about the control of the affairs of a company called the Strathfield and District Hebrew Congregation Ltd, which, among other things, is the owner of the War Memorial Synagogue at Strathfield.
This Court in these proceedings is not concerned to make any determination or finding about issues relating to the control, management and direction of the Strathfield and District Hebrew Congregation Ltd.
Principal Proceedings
These proceedings are brought by the plaintiffs against Mr David Austin, a solicitor who acted for the opponents of the plaintiffs in the litigation in the Equity Division of this Court, and in Rabbi Tov-Lev's CTTT proceedings.
The present Statement of Claim mounts a cause of action entirely based on negligence. The Statement of Claim is manifestly defective because it does not include any pleading which describes one essential element of the cause of action, namely the existence of, and the nature and content of, any duty of care which is alleged to be owed by the defendant to the plaintiffs. This is of particular importance because, speaking generally, there is considerable authority for the proposition that a solicitor does not owe any duty to take reasonable care for the interests of opposing parties. Accordingly, unless the basis for the existence of any duty of care is pleaded, then the Statement of Claim is an inadequate pleading.
However, it is unnecessary to fully determine that issue because each of the plaintiffs today accept that they do not wish to proceed on any allegation of negligence against Mr Austin, but wish to make another, as yet unformulated, claim against Mr Austin based on some species of fraud.
They submit that they should have an opportunity to allow them to bring forward a proposed pleading, and they submit that the basis for this proposed pleading has only become apparent very recently.
The defendant on the other hand submits that any such pleading will be fundamentally flawed and importantly, having regard to the history of the proceedings in the Equity Division and in the CTTT, any such suit must necessarily represent, whilst ever Mr Austin is a defendant, a collateral attack on the decisions of various Judges of the Equity Division of this Court and of various members of the CTTT.
This is a submission which is not to be underestimated. The principle of finality in litigation is a basal principle of law. Parties are not able to continually litigate matters which have been decided against them. The law respects the finality of process. However, one exception to the principle of finality is where, within very limited circumstances, fraud can be demonstrated. I emphasise that those circumstances are limited, and the fraud capable of being pleaded and proved.
However, I am not prepared to say, as I sit here today, notwithstanding the careful and persuasive submissions of counsel for the defendant, that there is no basis whatsoever upon which these plaintiffs could plead a case in fraud. I very much doubt that there is such a basis, but any conclusion will need to await the appearance of a proposed pleading.
Discernment
The consequence of these matters is that I am not prepared to dismiss the Statement of Claim at the moment. But in light of the indication of the plaintiffs that they wish to amend the Statement of Claim, I am prepared to give them an opportunity to do so. Such an opportunity must not disadvantage the defendant. In my view, the best way in which that can be achieved is for me to stand the proceedings over part-heard before me and to allow the plaintiffs an opportunity to produce any proposed pleading.
However, having regard to the submissions that have been put and having regard to such facts as are available to me at the moment, it is obviously necessary that any pleading which is proposed by the plaintiffs be one which properly pleads an available cause of action and also that the plaintiffs satisfy me that there are sufficient facts, matters and circumstances which permit such a pleading to be propounded.
Accordingly, I propose to make orders which have this effect: namely, standing over the various Notices of Motion to a date to be fixed in the future for resumption of the hearing before me but in the meantime making a series of directions which will bring the matter back before the Registrar so that he can be satisfied the matter is ready for the part heard hearing to resume.
An issue remains about costs. Ordinarily where a claim is struck out and an order for repleading is made the party seeking that indulgence would be obliged to pay the costs of the other party. Equally, it is open to the Court to make another order. In my assessment much will depend upon what appears in the future pleading. Accordingly, I propose to reserve all question of costs until I have heard the entirety of the proceedings.
Orders
I make the following orders:
(1) Pursuant to r 14.28 of the Uniform Civil Procedure Rules order that the Statement of Claim filed 3 September 2013 be struck out.
(2) Order that the plaintiffs are to file and serve on or before 4pm 9 December 2013 any Notice of Motion for leave to file an Amended Statement of Claim to which there must be annexed any proposed Amended Statement of Claim.
(3) Direct that the plaintiffs file an affidavit or affidavits setting out all facts, matters and circumstances upon which they rely to support the proposed Amended Statement of Claim on or before 4pm, 9 December 2013.
(4) Direct that the defendant file and serve any affidavit in response by 4pm 24 January 2014.
(5) Grant leave to the plaintiffs to make any Notice of Motion returnable before the Court on Friday 7 February 2014 at 9am before the Registrar.
(6) Stand over the Notice of Motion filed by the plaintiffs on 3 September 2013 and on 28 October 2013 to 9am 7 February 2014 before the Registrar.
(7) Stand over the balance of the defendant's Notice of Motion filed 2 October 2013 to 9am on 7 February 2014 before the Registrar.
(8) Reserve all question of costs.
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Decision last updated: 19 December 2013
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