Manny v Strong Law
[2017] ACTSC 316
•30 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Manny v Strong Law |
Citation: | [2017] ACTSC 316 |
Hearing Date: | 17 August 2017 |
DecisionDate: | 30 October 2017 |
Before: | McWilliam AsJ |
Decision: | See [66] |
Catchwords: | PRACTICE & PROCEDURE – application for strike-out and summary judgment – whether reasonable cause of action disclosed – whether plaintiff ought be declared a vexatious litigant |
Legislation Cited: | Legal Profession Act 2006 (ACT) ss 386, 388, 389 |
Cases Cited: | Attorney General (NSW) v Gargan [2010] NSWSC 1192 Attorney General v Croker [2010] NSWSC 942 |
Parties: | Jeff Manny (Plaintiff) David Lardner Lawyers (First Defendant) Strong Law (Third Defendant) |
Representation: | Counsel Self-represented (Plaintiff) J Emmett (Third Defendant) |
| Solicitors Self-represented (Plaintiff) Sparke Helmore (Third Defendant) | |
File Number: | SC 527 of 2016 |
McWilliam AsJ:
The proceedings in this Court follow previous proceedings conducted in the Family Court of Australia involving the plaintiff and his former wife.
The first defendant was the plaintiff’s solicitor in the previous proceedings in the Family Court. The third defendant acted for Mr Manny’s former wife in those proceedings. The claim against the second defendant has been discontinued.
The amended originating claim and amended statement of claim (Claim) were filed on 19 May 2017. The Claim runs to 198 pages and contains various allegations against the first and third defendants of professional negligence, misrepresentation or misstatement and failure to comply with court orders, which are considered in more detail below. The plaintiff seeks compensation or damages for economic loss (including loss of income), mental harm and physical injuries due to mental harm.
There was also before the Court a draft proposed second Amended Statement of Claim. I have had regard to the document, however it is in a substantially similar form, with additional allegations in a similar vein to the Claim. It is not a document I would have granted leave to file and there is nothing in the document that overcomes the hurdles for the plaintiff that are set out below. These reasons proceed on the basis of the state of the pleadings as filed.
Issue
The present application for determination by this Court is brought by the third defendant only, essentially seeking to strike-out the Claim insofar as it relates to the third defendant and for summary judgment. Further, the third defendant seeks a declaration that the plaintiff is a vexatious litigant pursuant to s 67A of the SupremeCourt Act 1933 (ACT) (Supreme Court Act), orders consequent on that declaration and costs of the proceedings.
Accordingly, the issues for determination are:
(a)Whether the Claim ought be struck out against the third defendant (or in its entirety); and
(b)Whether summary judgment ought be entered for the third defendant; and
(c)Whether a declaration that the plaintiff is a vexatious litigant ought be made; and
(d)The appropriate order as to costs.
Submissions and evidence
With regard to whether the Claim ought be struck out, the third defendant submits the Claim is embarrassing, repetitive and confusing. Specifically, it is contended that the Claim contains lengthy sections of legal submission without cogent links to the material facts of the case alleged, applications for relief that the Court could not possibly grant, and that the drafting of the Claim generally is such that it is unnavigable.
On the question of summary judgment, the third defendant contends that whatever the numerous asserted causes of action against it, all of the allegations relate to the third defendant’s conduct when it was acting on behalf of the plaintiff’s former wife in the Family Court proceedings.
The third defendant submits there are two complete answers to each of the ‘causes of action’:
(a)The third defendant owed no duty of care to the plaintiff in its conduct of the Family Court proceedings, relying on Perera v Genworth Financial Mortgage Insurance [2017] NSWCA 19 (Perera) at [52]-[53], [57] and [94]-[98] and the cases there-cited.
(b)In any event, any claim would be met by the complete defence of the advocate’s immunity from suit, relying on Giannarelli v Wraith (1988) 165 CLR 543 at 559-560; D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [86]; Attwells v Jackson Lalic Lawyers [2016] HCA 16; 259 CLR 1 (Attwells) at [2]-[3].
For completeness, the third defendant notes that this is not a case where there is any allegation concerning advice regarding settlement or compromises of a proceeding (c.f. Attwells at [38]-[53]; Kendirjan v Lepore [2017] HCA 13; 343 ALR 86 at [31]-[32]) and even if that were the case, no limit on the scope of the advocate’s immunity could overcome the first hurdle, being that the third defendant owed no duty of care to the plaintiff.
In further answer to aspects of the Claim involving allegations of contravention of Family Court orders, or orders in the Family Court being obtained by fraud or misrepresentation, the third defendant contends that even if there were some departure, defect, irregularity or misrepresentation of the kind alleged by the plaintiff (which it expressly denies), that is a matter for the Family Court.
As to the question of the plaintiff being a vexatious litigant, such as to enliven the Court’s power under s 67A of the Supreme Court Act to so declare, with attendant consequences, the third defendant argues that:
(a)The present Claim against the third defendant lacks reasonable grounds, and as such falls within s 67A(1)(b) of the Supreme Court Act.
(b)The plaintiff has ‘frequently’ instituted vexatious proceedings in the sense described in authorities such as Attorney General v Wilson [2010] NSWSC 1008 at [12]; Attorney General v Croker [2010] NSWSC 942 at [22]; Attorney General (NSW) v Gargan [2010] NSWSC 1192 (Gargan) at [7]; Siteberg v Maples [2010] NSWSC 1344 at [31]-[32]; and Potier v Attorney-General [2015] NSWCA 129; 89 NSWLR 284 at [114]-[118].
(c)Upon satisfaction that the plaintiff has frequently instituted vexatious proceedings, the discretion to make the declaration is unconfined, with relevant factors informed by the protective purpose for which the order serves, relying on Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [12], cited with approval in Gargan at [8].
(d)Here, if a declaration is made, the plaintiff will not be prevented from enforcing any legitimate claim. Rather, the Court will act as a gatekeeper or supervisor to ensure that the processes of the Court are not abused, relying on Brogden v Attorney-General [2001] NZCA 208; NZAR 809 at [23].
The third defendant relied on a series of cases involving the plaintiff and various parties. During the hearing, Counsel for the defendant was very careful to ensure that the Court understood the purpose for which each decision was relied upon, with some cases only being relied upon for context, so that the Court had the complete litigation history involving the plaintiff as a matter that might have been relevant to the Court’s exercise of discretion.
Counsel for the third defendant also properly acknowledged that although his client was seeking protection from further litigation involving the plaintiff through s 67A of the Supreme Court Act, if judgment were entered for the third defendant and costs orders made prohibiting the institution of further proceedings until those costs were paid, then the third defendant may achieve the same ends.
The plaintiff was self-represented, written submissions on the application dated 5 May 2017 and made oral submissions at the hearing on 17 August 2017, where he further sought to tender on the application numerous volumes of evidence, with such material being largely treated as submissions and the exhibits sought to be tendered were provisionally admitted, subject to the plaintiff establishing their relevance.
The plaintiff was granted leave to file further written submissions following the hearing, to permit him to draw the Court’s attention to certain authorities which the plaintiff had in mind at the hearing but for which he was unable to provide references. The supplementary submission was to be limited to three pages, with the third defendant having an opportunity to reply.
It appears that the plaintiff misunderstood the terms of the grant of leave, forwarding to the Court a number of separate submissions, totalling around ten pages. Further, when the parties received communication that judgment was intended to be delivered on two previous occasions, the plaintiff responded on each occasion by emailing further material.
The matter was thus listed for further directions on 9 October 2017, to correct the plaintiff’s misunderstanding, to ensure that the plaintiff had no further submissions to make following his lately received transcript of the hearing, and to provide an opportunity to the third defendant to respond to all the additional material forwarded by the plaintiff without leave of the Court, given that it had properly obeyed the orders of the Court and not filed any further reply.
Mr Feeney, solicitor, appeared for the plaintiff on that occasion, with leave. He stated that he anticipated acting for the plaintiff in the future, and had identified a kernel of an argument that might have some prospects, however he did not yet have sufficient knowledge of the case to take the matter further. He sought an adjournment, which was refused for reasons I gave at the time.
Because I was satisfied that the above process has allowed each party sufficient time to respond to the other’s arguments, I have had regard to the entirety of the piece-meal submissions provided by the plaintiff.
The evidence of the plaintiff was directed to supporting the factual claims made by the plaintiff. However, the complaints made by the third defendant were legal in nature, not factual. The argument in short was that even if the facts were true (a matter which was denied, but put to one side for this application) they did not, and could not, sound in an available cause of action to the plaintiff. I have therefore determined that such of the plaintiff’s evidence as was provisionally admitted was not relevant to the determination of the issues on this application.
In broad summary, the plaintiff contends that he does have a viable cause of action against the third defendant. The starting point is a complaint about the third defendant’s unsatisfactory conduct in the Family Court, which (he asserts) gives rise to a statutory remedy, relying on ss 386, 388 and 389 of the Legal Profession Act 2006 (ACT). He further contends that the third defendant misrepresented certain facts to the Family Court and contravened orders of the Family Court, which had consequences that ultimately receivers were appointed to companies of which the plaintiff was a director. The receivers then sold properties at an under-value that resulted in substantial economic loss, which also caused him to suffer mental illness.
The plaintiff seeks by his Claim to extend the duty of care of a solicitor to a non-client. He appears to accept that his Claim is novel, but points to cases where novel fact situations have seen a duty of care established on the basis of proximity and, in the case of pure economic loss, reliance. In this regard, he relies upon Jaensch v Coffey (1984) 155 CLR 549 at 584-585, Hill v Vann Erp (1997) 188 CLR 159 and Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; 211 CLR 317.
The plaintiff speaks of a broad incremental approach to the common law, with the Australian law evolving during the last 25 years.
As far as I have been able to discern, he says that he was in a proximate relationship with the third defendant because of the litigation, that the third defendant had control over his assets because of its representation of his former wife, and that the plaintiff relied on the third defendant to take care in respect of those assets.
If the Court were to find that no reasonable cause of action is disclosed and further that there is no claim capable of being made in respect of the third defendant, then the plaintiff confirmed he would nevertheless seek an opportunity to continue the claim against the first defendant and indicated that his former wife may also be joined to the proceedings.
On the question of the advocate’s immunity from suit, the plaintiff submitted that the ‘technicality’ does not extend to the alleged conduct of the third defendant, whether such conduct is characterised as deceit, misrepresentation or misstatement.
In response to the order sought under s 67A of the Supreme Court Act, the plaintiff submits that apart from the current proceedings, there have been only two proceedings involving the plaintiff in the ACT Supreme Court from 2011 to 2014. One involved the ANZ Bank and concerned the loss of the plaintiff’s family home. He submits he was entitled to try his hardest to save the family home. The second involved the appointment of receivers to his companies and he acted on the advice of his lawyer at the time in attempting to mitigate losses of his seven companies.
The plaintiff further contends that although he was also involved in proceedings in the Federal Court, he did not initiate those proceedings and again, they related to properties owned by his companies.
Accordingly, the plaintiff resists any declaration under s 67A of the Supreme Court Act.
The Claim ought be struck out
The decision of Picos v Commonwealth Bank of Australia [2015] ACTSC 56 at [47]-[48] contains a useful summary of when a pleading might fail to disclose a reasonable cause of action:
47. The sense in which the pleading fails to disclose a cause of action is that, looking solely at what is pleaded, it fails to include all the elements of a cause of action: White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [47]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [23].
48. The various ways in which a pleading may be embarrassing were outlined by Johnson J in McGuirk v The University of New South Wales [2009] NSWSC 1424 at [30]- [35]. In Szanto v Bainton [2011] NSWSC 985 Ward J summarised the position as follows (at [107]):
What is meant by an embarrassing pleading in the context of an application such as the present relates, in essence, to whether the pleading can serve the function of a pleading under the Rules - namely, in succinct fashion, to put the defendant properly on notice of the real substance of the claim made against it and to know what case it is that the defendant has to meet. Thus a pleading is embarrassing if it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive the opposing party of proper notice of the real substance of the claim or defence (Gunns Ltd v Marr [2005] VSC 251 at [14]- [15]) or if it contains inconsistent, confusing or irrelevant allegations (Shelton v National Roads & Motorists Assn Ltd [2004] FCA 1393; (2004) 51 ACSR 278; at [18]).
Further, in Bolas v Calvary Health Care Limited [2016] ACTSC 58 Mossop AsJ (as his Honour then was) stated at [17]:
Pleadings are useful only if parties actually use them to expose rather than obscure the case that they seek to run. A failure to properly expose the case that is to be run is not only inconsistent with the particular obligations in the rules in relation to pleading but obviously inconsistent with the duties of parties under s 5A of the Court Procedures Act 2004 (Act) and r 21 of the Court Procedures Rules 2006 (Rules).
The Claim is divided into 14 alleged causes of action, seven of which are directed to conduct of the third defendant and may be described as follows.
Cause of action 1, commencing on page 5 of the Claim, alleges professional negligence of the third defendant based on what was said to be ‘wrong advice’ and an alleged failure to comply with Court orders made in February 2010 and/or a breach of the Family Court Rules 2004 (Cth) (Family Court Rules). It refers to an order that required the third defendant to consent to the sale or disposal or further encumbering of any of the properties the subject of the proceedings. The substance of the cause of action appears to be that the third defendant gave advice to its client, the plaintiff’s former wife, which caused her to refuse to consent to the selling of certain properties. The plaintiff alleges that this caused the plaintiff to breach various contractual obligations to parties and extended the Family Court proceedings, causing the ‘demise of all the assets of the plaintiff, plaintiff’s business, plaintiff’s job and plaintiff’s family home and mental harm as a result of the shock of the losses’.
By way of relief, the plaintiff seeks orders declaring that certain events occurred, that the third defendant acted in breach of Court orders, the Family Court Rules and its obligations to the plaintiff and his former wife, and further seeks compensation for the harm caused.
Cause of action 4, commencing on page 79 of the Claim, alleges professional negligence. It refers to orders made by the Family Court in 2010, which permitted the plaintiff to sell certain property within a three-month period. The plaintiff alleges that in contravention of the orders, the third defendant prevented the plaintiff from selling the properties and this caused the plaintiff to default on his loan contract with the ANZ Bank. This in turn meant that the ANZ Bank appointed receivers to the properties which caused shock and resulting mental harm. Further, the receivers sold the properties at an undervalue, causing pure economic loss and further mental harm to the plaintiff.
Cause of action 5, commencing on page 84 of the Claim, sets out similar factual circumstances concerning the failure to sell a number of properties in 2010, following which the plaintiff states that he is ‘seeking professional negligence of the third defendant caused by giving wrong advice on 27 August 2010 to third defendant’s client whom plaintiff was in proximity and coincide in interests. Plaintiff is seeking for the damages.’
Cause of action 6, commencing on page 93 of the Claim, again refers to orders made in the Family Court in 2010. It alleges that the orders were made following submissions and correspondence from the third defendant, which the plaintiff alleges were misrepresentations. The relief sought by the plaintiff in respect of this cause of action, set out in many paragraphs, is all premised on seeking orders from this Court that during the hearing before the Family Court, the third defendant misrepresented certain facts and contravened earlier orders made by the Family Court. The plaintiff further alleges that this caused the chain of events outlined above – the default in a loan contract, the appointment of receivers and administrators, and the consequent loss the plaintiff claims to have suffered.
Cause of action 9, commencing on page 133 of the Claim, alleges professional negligence of the third defendant based on alleged contraventions of consent orders, again in the Family Court, which delayed other proceedings. Specifically, the order said to have been contravened is an order requiring the parties to prosecute their respective appeal and cross-appeals in the Family Court without delay. The plaintiff alleges there was delay, which caused the same chain of events outlined above.
By way of relief, the plaintiff seeks orders that there was delay, that this was in contravention of Family Court orders, and that the contraventions caused the chain of events.
Cause of action 10, commencing on page 143 of the Claim, makes similar allegations about different facts. The plaintiff refers to orders made in the Family Court in August 2010, which he alleges were not complied with and which caused delay to the hearing of the plaintiff’s appeal, which in turn resulted in the plaintiff being unable to pay back the loans by the ANZ Bank and the same outcome as that referred to above. Similar relief is sought, in the nature of orders that the third defendant contravened the orders in the Family Court, with further orders sought that the said contraventions caused the alleged losses.
Cause of action 13, commencing on page 166 of the Claim, again refers to the Family Court proceedings and alleges that the third defendant sought consent orders in February 2011, but those orders were too late to save assets of the plaintiff. There seems to be a further allegation that somehow the conduct of the third defendant in seeking the consent orders misrepresented earlier correspondence and submissions.
The orders sought in this Court are that the ‘third defendant’s consent orders’ were too late to save assets of the plaintiff, were misrepresentations, and contravened orders of the Family Court.
Among the paragraphs in the Claim, there is pseudo-legalistic language used that appears to be an attempt to plead elements of a cause of action known to the law, such as the pleading of a contract, or of a relationship of proximity. Headings have been used such as breach of contract, duty of care, foreseeability, reasonability, cumulative breaches, causation, remoteness of risk, consequential mental harm and remoteness, and intentional infliction of mental harm.
However, the document is drafted in such a way as to include a mixture of legal submission, evidence, procedural history, extracts from the Family Law Rules and of orders made in the Family Court, and a table of cases with the facts of those cases set out. The facts and particulars, or more precisely, how what is set out in the paragraphs is (or might be) material to any specific cause of action, are simply lost. Allowing for the fact that the plaintiff is self-represented, it is not for the parties to trawl through vast swathes of irrelevant and inappropriate material in order to pick out and then plead to what might be the particulars of a reasonable case.
I therefore accept the third defendant’s submission that the present Claim is embarrassing, in that it is unintelligible, ambiguous, or so imprecise in its identification of material factual allegations as to deprive it of proper notice of the real substance of the claim.
It cannot be ignored that the plaintiff makes the same types of allegations in respect of the first defendant. The above finding means that the Claim in its entirety fails to disclose any reasonable cause of action and ought be struck out.
Summary judgment ought be entered for the third defendant
Rule 1147 of the Court Procedures Rules 2006 (ACT) (Rules) regulates applications for summary judgment:
(1) A defendant may apply to the court for summary judgment against a plaintiff at any time after filing a notice of intention to respond or defence.
Note Pt 6.2 (Applications in proceedings) applies to an application under this rule.
(2) The court may give judgment for the defendant against the plaintiff for the plaintiff’s claim for relief (or part of it) if satisfied—
(a) that the claim (or part of it) is frivolous or vexatious; or
(b) that there is a good defence to the claim (or part of it) on the merits; or
(c) that the proceeding should be finally disposed of summarily or without pleadings.
(3) The court may make any other order it considers appropriate.
The third defendant filed a notice of intention to respond on 19 January 2017.
The principles applicable to applications for summary judgment are set out in Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132 at [5]. It is unnecessary to set out the principles in their entirety again. The critical point to note is the very high threshold that must be met and the fact that the courts exercise extreme caution in making any determination that judgment ought be entered on a summary basis.
Having set out the nature of the claims the plaintiff seeks to bring against the third defendant above, it is clear to me that even with a proper pleading, the plaintiff could not possibly succeed against the third defendant. The reasons are those submitted by the third defendant.
As Leeming JA stated in Perera at [52]-[54], Macfarlan and Simpson JJA agreeing (emphasis added):
[52] …There is a well recognised general rule that a litigant owes no duty of care to another litigant in the conduct of civil litigation. In the United Kingdom, see Customs and Excise Comrs v Barclays Bank plc[2007] 1 AC 181; [2006] UKHL 28, and Jain v Trent Strategic Health Authority[2009] AC 853; [2009] UKHL 4. In the latter appeal, Lord Scott said at [35]:
[W]here the preparation for, or the commencement or conduct of, judicial proceedings before a court, or of quasi-judicial proceedings before a tribunal such as a registered homes tribunal, has the potential to cause damage to a party to the proceedings, whether personal damage such as psychiatric injury or economic damage as in the present case, a remedy for the damage cannot be obtained via the imposition on the opposing party of a common law duty of care. The protection of parties to litigation from damage caused to them by the litigation or by orders made in the course of the litigation must depend upon the control of the litigation by the court or tribunal in charge of it and the rules and procedures under which the litigation is conducted.
[53] More recently, Lord Neuberger PSC referred to this as a ‘general rule’: Willers v Joyce at [157]. In this country, McPherson JA (with the agreement of Jerrard JA and Chesterman J) summarised the line of authority in The Beach Club Port Douglas Pty Ltd v Page at [17]-[20]. The proposition formulated and applied by his Honour at [19] was:
[A]part from remedies conferred by statute or by the common law in the form of malicious prosecution or collateral abuse of process, no duty of care in negligence is owed by one litigant or his solicitor for the negligent conduct of litigation that causes loss to the plaintiff.
[54] That statement of principle, with which I respectfully agree, is inconsistent with the duty for which Mr Perera contends. True it is that a general rule may be subject to exceptions, but the fact-based nature of the exception to which Mr Perera pointed does not accord with the principles of general application on which the Australian legal system is based.
The above principle is directly applicable to the Claim in the present case, even to the extent of referring to the type of loss alleged to have been suffered by the plaintiff, and including the solicitor acting for an opposing litigant.
That established principle is not one for which there is scope for the law to be developed incrementally by reference to notions of proximity, as was submitted by the plaintiff. I consider the principle to be both binding and fatal to the entirety of the plaintiff’s claims in professional negligence, including negligent misstatement, against the third defendant.
As to any other relief concerning orders made in the Family Court, including whether there was compliance with those orders, how those orders were brought about, or the consequences of any non-compliance with those orders, this Court plainly has no jurisdiction to entertain any application based on such a substratum of facts. Proceedings in the Family Court are regulated by that Court. There is no arguable case to the contrary.
These two uncontroversial legal hurdles of no duty owed and no jurisdiction mean that the complaints in their entirety lack any reasonable grounds and there is no means by which the plaintiff could plead an arguable case. The third defendant has thus established grounds under paragraphs (2)(a) and (2)(c) of r 1147 for summary judgment and it is appropriate that the Court so order.
Even if there were any arguable claim in negligence arising out of the previous proceedings in the Family Court, I would have also accepted the submissions of the third defendant that its conduct falls squarely, and unarguably, within the advocate’s immunity from suit, so that the third defendant has a complete defence to any such claim. The consequence is that the third defendant would also have established grounds for the exercise of the discretion under r 1147(2)(b) of the Rules.
Consequences for the proceedings
The first defendant has not filed any application for summary judgment. Being the plaintiff’s former legal representative, the first defendant is in a different position to the third defendant, in that it is at least arguable that a duty of care was owed through a retainer or the common law or both. The extent of that duty and whether the defence of advocate’s immunity from suit would apply are matters about which the Court does not have the benefit of any considered argument.
Accordingly, while the Court might summarily dismiss proceedings of its own volition, this is a case where the Court ought not make any finding in relation to the first defendant, with the result that the proceedings will continue as against it, and leave ought be given to the plaintiff to file a further amended statement of claim having regard to these reasons.
Vexatious Litigant
The third defendant drew the Court’s attention to Vatarescu v Commonwealth of Australia and Australian Capital Territory [2013] ACTSC 270; 285 FLR 1 where then Mossop AsJ considered the principles applicable to s 67A of the Supreme Court Act. Of relevance to the Court’s discretion here are [36]-[37] (citations omitted):
[36]…this section must be applied having regard to the fundamental principle of the legal system that every person has a right of access to a court to seek remedies as a consequence of an alleged infringement of his or her rights. Because an order made under a provision such as s 67A qualifies that right, it must be treated as a serious matter…
…the rule is designed to protect the Court’s own processes against unwarranted usurpation of its time and resources to avoid loss caused to those who face actions which lack substance. … Linked with that objective is the need to protect the community, including litigants who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings.
[37] …while those fundamental [principles] may be of some significance in interpreting the meaning of terms within the section, they will be of most significance at the discretionary stage once the threshold set by the statute has been passed. That threshold is still a very high one because it requires frequent institution of vexatious proceedings.
In the present case, the application for an order under s 67A is made by a party to litigation, expressly seeking protection from the institution of further claims arising out of the Family Court proceedings. The third defendant did not seek to argue there is a need to protect the community more broadly.
Entering summary judgment for the reasons given above would appear to deliver that protection. Questions of at least issue estoppel, if not res judicata might well arise if the plaintiff sought to litigate the issue further. In addition, the third defendant’s acceptance of an alternative remedy, namely entering judgment with appropriate costs orders, as being sufficient protective relief for present purposes renders the difficult task of examining whether the plaintiff’s conduct in litigation to date meets the very high threshold for a declaration under s 67A unnecessary. It would also have been relevant to the Court’s exercise of the discretion that at the ‘heel of the hunt’ as it were, a legal practitioner stood before the Court and indicated that in respect of the proceedings more broadly, he had identified a kernel of a reasonably arguable case.
In light of the sensible position adopted by the third defendant, it is preferable for the Court to refrain from expressing any view about the evidence directed to the issue of the frequent institution of vexatious proceedings, as the occasion may yet arise for its further consideration.
Costs
Costs are in the discretion of the Court. The third defendant has succeeded in a substantive manner as to the outcome of the proceedings in their entirety as against it. There is no reason to depart from the ordinary course that costs follow the event.
Further, I consider it appropriate to require that such costs be paid by the plaintiff prior to the commencement of any future proceedings against the third defendant arising out of, or in connection with, their provision of legal services to the plaintiff’s former wife.
Orders
The orders of the Court will be as follows:
1. The amended statement of claim filed 19 May 2017 is struck out.
2. Judgment is entered for the third defendant.
3. The plaintiff is to pay the third defendant’s costs as agreed or assessed.
4. Any future proceedings against the third defendant arising out of, or in connection with, their provision of legal services to the plaintiff’s former wife, may not be commenced without compliance with order 3.
5. The plaintiff is granted leave to file a further amended statement of claim in respect of the first defendant on or before 30 November 2017.
| I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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