Eastlund (a pseudonym) v Orezykowski; Eastlund (a pseudonym) v Shavaiz
[2022] ACTSC 68
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Eastlund (a pseudonym) v Orezykowski Eastlund (a pseudonym) v Shavaiz |
Citation: | [2022] ACTSC 68 |
Hearing Date: | 30 March 2022 |
DecisionDate: | 6 April 2022 |
Before: | Kennett J |
Decision: | In each proceeding judgment for the defendants against the plaintiff pursuant to r 1147 of the Court Procedures Rules 2006 (ACT). |
Catchwords: | PROCEDURE – Summary Judgment – claim for professional negligence against solicitors – where defendants did not act for the plaintiff – whether plaintiff’s cause of action is doomed to fail |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 1147 Family Law Act 1975 (Cth) ss 68L, 68LA Supreme Court Act 1933 (ACT) s 13 |
Cases Cited: | Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; 259 CLR 1 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 Zamora v Eastlund [2021] FCCA 672 |
Parties: | Mr Eastlund (a pseudonym) ( Plaintiff/Respondent) Magdalena Orezykowski ( First Defendant/Applicant in SC 429 of 2021) Boland Legal (Second Defendant/Applicant in SC 429 of 2021) Julia Shavaiz (Heinze) (First Defendant/Applicant in SC 430 of 2021) Infinity Legal (Second Defendant/Applicant in SC 430 of 2021) |
Representation: | Counsel Self-represented ( Plaintiff/Respondent) R Walls ( Defendants/Applicants in SC 429 of 2021) N Wicks ( Defendants/Applicants in SC 430 of 2021) |
| Solicitors Self-represented ( Plaintiff/Respondent) Sparke Helmore Lawyers ( Defendants/Applicants in SC 429 of 2021) Moray & Agnew Lawyers ( Defendants/Applicants in SC 430 of 2021) | |
File Numbers: | SC 429, 430 of 2021 |
KENNETT J:
The plaintiff in these two matters was also the plaintiff in Eastlund (a pseudonym) v Westlake (a pseudonym) [2022] ACTSC 52 (Eastlund v Westlake). Like that case, the present matters arise out of family law proceedings heard in the Federal Circuit Court in which the plaintiff was the respondent. For the reasons explained in Eastlund v Westlake at [1]–[2] it is necessary that the identities of the plaintiff, the child to whom the family law proceedings related and the child’s mother not be disclosed. Therefore, in this judgment, they will continue to be referred to by the pseudonyms adopted in the published version of the judgment and reasons of the Federal Circuit Court (Zamora v Eastlund [2021] FCCA 672): that is, as Mr Eastlund (the plaintiff), Ms Zamora (the child’s mother) and X (the child).
In these proceedings, Mr Eastlund sues two legal practitioners and the firms in which each of them practises. The first defendant in matter No. 429 of 2021, Ms Orezykowski, acted as the Independent Children’s Lawyer in the family law proceeding. The first defendant in matter No. SC 430 of 2021, Ms Shavaiz, was retained in that proceeding by Ms Zamora. At the conclusion of the family law proceeding, the Court made orders substantially in the form sought by Ms Zamora (and supported by Ms Orezykowski), granting sole parental responsibility for X to Ms Zamora with only very limited contact with Mr Eastlund.
In each of the present cases, Mr Eastlund filed a Statement of Claim. He prepared these documents himself, and they clearly did not perform the function of a proper Statement of Claim. On 16 December 2021, the defendants in each case filed an Application in a Proceeding seeking that the Statement of Claim be struck out or that the proceeding be summarily dismissed. These Applications came before Elkaim J, who ordered in each matter that the Statement of Claim be struck out and that Mr Eastlund be given leave to file an amended Statement of Claim. His Honour granted liberty to the defendants to restore their Applications following receipt of the amended Statements of Claim.
Amended Statements of Claim were filed in both proceedings on 28 March 2022. The defendants have exercised their liberty to restore their Applications. Ms Orezykowski and her firm have also filed an amended Application in Proceeding, updating the text of the original Application so as to refer to the amended Statement of Claim. Ms Shavaiz and her firm have not taken that step, but nothing turns on this.
Mr Eastlund remains unrepresented, and it is apparent that he has also drafted the amended Statements of Claim himself. They are discursive and, with respect, somewhat confusing documents. However, they do identify acts and omissions which (it can be inferred) Mr Eastlund alleges to have occurred and to constitute negligence. While any trained lawyer who filed such a document would be open to strong criticism, the amended Statements of Claim go at least some way to identifying the case which each defendant must meet. But for the fundamental difficulties described below, I would have been inclined to allow the proceedings to go forward on the basis of these documents. I infer that they are the best that Mr Eastlund can do to articulate his case in written form, and that requiring the cases to be re-pleaded a second time would achieve little if anything. I do not need to reach a final view as to whether the many defects in the amended Statements of Claim require them to be struck out, because I have concluded that the proceedings ought to be dismissed under r 1147 of the Court Procedures Rules 2006 (ACT).
It is useful to note the following aspects of the amended Statements of Claim.
(a)Each refers at the outset (and further in the body of the document) to professional negligence. To the extent that any cause of action is alleged, it is a cause of action in negligence.
(b)Each refers to compensation or damages as the remedy (or one of the remedies) sought. That is consistent with the cause of action alleged in each case being one in negligence.
(c)The factual matters alleged to have involved breaches of duty by the defendants relate to their involvement in the family law proceedings—either the actual conduct of those proceedings or dealings between the parties that were closely connected thereto.
(d)Each concludes with a statement: “I would like the return of my [child] and maximum compensation”. It appears, therefore, that part of the relief sought is an order undoing the result of the family law proceedings and granting to Mr Eastlund some degree of parental responsibility for X.
(e)Each document also contains a short paragraph indicating an acceptance that the claims sought to be advanced cannot be heard in this Court. This is followed by a request that the case be referred to a higher court.
The difficulties foreshadowed above are these.
First, a fundamental element of any claim in negligence is that the defendant owed a duty of care to the plaintiff. It is not sufficient that the defendant owed duties to somebody else, or had professional obligations to exercise care and skill. There must be a duty owed to the plaintiff to take reasonable care.
Here, each of the defendants was engaged to perform a specific role in the family law proceedings and to advance, as best they could, particular interests.
(a)It is not controversial that Ms Orezykowski was appointed under s 68L of the Family Law Act 1975 (Cth) as the Independent Children’s Lawyer. She therefore had particular duties under s 68LA of that Act. She was required to form an independent view of what was in the interests of X; to act in relation to the proceedings in what she believed to be X’s best interests; and to make a submission to the Court suggesting the adoption of whatever course of action she considered to be in X’s best interests. In addition, as a legal practitioner, she had professional duties to the Court. Her obligations brought her into direct conflict with the interests of Mr Eastlund, at least when concerns were raised about possible threats to the safety of X when in Mr Eastlund’s care, and later when she formed the view that the interests of X were best served by orders granting full parental responsibility to Ms Zamora.
(b)Ms Shavaiz, meanwhile, was the solicitor on the record for Ms Zamora for most of the time the family law proceedings were on foot. Her obligations were to advise Ms Zamora and, within the bounds of proper professional conduct, to adduce whatever evidence could be adduced and make whatever arguments could be made in support of the outcome sought by her. Issues as to the custody of, and access to, X were hotly contested. Ms Zamora’s interests in the family law proceeding were thus diametrically opposed to those of Mr Eastlund. As Ms Zamora’s solicitor, Ms Shavaiz also had duties of confidentiality.
In these circumstances, it would be incongruous to hold that the defendants owed a duty of care to Mr Eastlund. The problem is, as the High Court observed in Sullivanv Moody [2001] HCA 59; 207 CLR 562 (Sullivan) at [55], one of coherence of the law. The circumstances of the present cases are strongly analogous to those of Sullivan, where the defendants were medical practitioners who were under obligations to report circumstances of suspected child abuse, and the plaintiffs were the fathers of young children who were suspected of abusing them. The High Court held that it would be inconsistent with the proper discharge of the defendants’ responsibilities for them to be subject to a legal duty to take care to protect persons in the position of the plaintiffs. Here, also, proper and effective performance by the defendants of their duties (Ms Orezykowski’s duty under statute and Ms Shavaiz’s duty to her client) was incompatible with them having a duty to protect Mr Eastlund.
Secondly, the High Court in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 and Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; 259 CLR 1 affirmed the common law rule that an advocate is immune from suit in respect of any act or omission made in the conduct of legal proceedings. The first of those cases also extended the immunity to a solicitor in the conduct of court proceedings. The scope of the immunity includes advice which leads to a decision affecting the conduct of a case and work intimately connected with work in a court. The allegations advanced by Mr Eastlund, so far as one can understand them, all relate to the work done by Ms Orezykowski and Ms Shavaiz as lawyers acting in the family law proceedings. This work falls within the scope of the immunity.
In oral submissions, Mr Eastlund articulated an argument that the conduct of the defendants had unduly prolonged the family law proceedings, and that this resulted in a prolonged period during which he spent no time with X, which in turn was strongly adverse to his prospects of obtaining any order granting parental responsibility to him. However, if that is how the case is intended to be put, it does not take the conduct alleged to have been negligent outside the scope of the immunity. Each of the defendants had no professional function to perform (and thus did nothing that could be assessed against any standard of reasonable care) other than for the purpose of the family law proceedings.
In the case of Ms Orezykowski, there is a further barrier to the success of Mr Eastlund’s claim. At the time the family law proceedings were conducted, rr 6.01 and 8.02 of the Family Law Rules 2004 (Cth) required an Independent Children’s Lawyer to be treated as a party to a proceeding. There is authority that, at least generally, a litigant owes no duty of care to another litigant in the conduct of civil litigation: see Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19; 94 NSWLR 83 at [52]–[53]. Parties to proceedings are protected from undue harm flowing from the conduct of other parties, not by the law of negligence, but by the rules and procedures of the court in which the litigation occurs and by doctrines of malicious prosecution and collateral abuse of process.
Thus, even if Mr Eastlund can prove the factual allegations that he makes (which is the assumption on which the defendants’ submissions properly proceeded), the proceedings, based as they are on negligence, are doomed to fail.
Additional problems attend what are apparently prayers for orders returning X to Mr Eastlund’s care. It seems very doubtful that this Court has any jurisdiction to make such an order. Even if it does, the present defendants are not the proper respondents, and the Court would not grant relief directly contrary to orders made by the Federal Circuit Court in proceedings to which Mr Eastlund was a party. Further, a claim in negligence sounds in damages rather than injunctive relief. However, these points are not determinative given my conclusion that the claims as a whole are fundamentally flawed.
As noted above, Mr Eastlund in some parts of his amended Statements of Claim appears to accept that his claims against the present defendants will fail in this Court. He seeks, among other things, reference of the cases to a higher court. I note that there is power in s 13 of the Supreme Court Act 1933 (ACT) to order that the original jurisdiction of the Court be exercised by a Full Court. However, a Full Court would also be bound by the High Court authorities referred to above. Nothing would be achieved by referring the matter to a Full Court, in circumstances where the law is clear. It is not the case that courts higher in the judicial hierarchy have the power to dispense with legal principles articulated in the authorities.
For these reasons, it is appropriate that both proceedings be dismissed under r 1147. There is no reason why costs should not follow the event.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: |
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