Martin v Malouf - [2021] NSWSC 415

Supreme Court

New South Wales

Medium Neutral Citation: Martin v Malouf [2021] NSWSC 415
Hearing dates: 21 April 2021
Date of orders: 23 April 2021
Decision date: 23 April 2021
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. The proceedings against Mr Vardanega, Mr Roberts and Mr Studdart be dismissed.
2. Unless the parties approach to be heard within 7 days, Ms Martin is to bear Mr Vardanega, Mr Roberts and Mr Studdart’s costs as agreed or assessed.

Catchwords:
PROCEDURE – notices of motion – orders dismissing proceedings or striking out statement of claim sought – Rules 13.4 and 14.4 of the Uniform Civil Procedure Rules 2005 (NSW) – statement of claim not properly pleaded – required particulars of serious allegations not provided – whether proceedings time barred – no reasonable cause of action – abuse of process – motion granted – proceedings dismissed.

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56, 58.1
Evidence Act 1995 (NSW) s 140
Limitation Act 1969 (NSW) ss 11(3), 14, 52, 55
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.7, 14.8, 14.9, 14.14, 15.1, 15.3, 15.7, 15.8, 15.9

Cases Cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125
Martin v Gow Gates Insurance Brokers Pty Limited Unreported 16 February 2000 Boyd-Boland J
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66

Category: Principal judgment
Parties: Lynette Martin (Plaintiff)
Stephen Vardanega (Third Defendant)
Michael Roberts (Fourth Defendant)
Nicholas Studdart (Sixth Defendant)
Representation:
Counsel: Mr D Feller SC (Third, Fourth and Sixth Defendants)

Plaintiff: (Self – Represented)
Solicitors:
Vardanega Roberts (Third, Fourth and Sixth Defendants)

File Number(s): 2020/337173

Judgment

In 1997 Ms Martin failed in proceedings for common law damages for a back injury which she suffered in 1996, which she had brought in the District Court against her employer Julia Ross Personnel Pty Ltd and the company where she was then working, Gow Gates Insurance Brokers Pty Ltd. Later, two workers compensation proceedings were brought in respect of that injury. The first, which was settled, Ms Martin contends without her knowledge, against Julia Ross Personnel. The second, which was withdrawn, was later brought against Gow Gates Insurance Brokers by Ms Martin herself.
Ms Martin commenced these proceedings in November 2020 against her former solicitors Mr Malouf and Mr Kolokossian, principals of Gerard Malouf & Co; Mr Petrovski their employed solicitor; Mr Vardanega and Mr Roberts, principals of Vardanega Roberts, solicitors who acted for the insurer of Julia Ross Personnel; and Mr Studdart, their employed solicitor.
By her statement of claim Ms Martin claims $48million compensation for the reduction in her above average income; being forced to live in penury on a government pension and in public housing; loss of her ability to work and live a happy family life for over 24 years; pain and suffering over that time and for continuing and increasing pain and mental stress.
The…

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.

Continue reading Martin v Malouf

Details

AGLC: Martin v Malouf [2021] NSWSC 415
Case: [2021] NSWSC 415
Decision Date: 23 April 2021

CaseChat Overview and Summary

The case of Martin v Malouf involved the plaintiff, Martin, suing the defendant, Malouf, in the Supreme Court of New South Wales. The plaintiff sought to recover damages for alleged defamation and injurious falsehood, claiming that the defendant made false and defamatory statements about him. The defendant sought to have the proceedings dismissed and the statement of claim struck out under Rules 13.4 and 14.4 of the Uniform Civil Procedure Rules 2005 (NSW) on the grounds that the plaintiff had not properly pleaded his claims, had failed to provide required particulars, and that the proceedings were time barred and constituted an abuse of process.

The court was required to determine whether the plaintiff’s statement of claim was properly pleaded and whether the defendant's motions to dismiss the proceedings or strike out the statement of claim should be granted. The key issues included whether the plaintiff had provided sufficient particulars to support his serious allegations, whether the proceedings were barred by limitation, and whether the plaintiff's claims amounted to an abuse of the court process.

The court found that the plaintiff's statement of claim was not properly pleaded because it failed to provide the particulars required for serious allegations. The court held that the plaintiff had not demonstrated any reasonable cause of action and that the proceedings amounted to an abuse of process. The court granted the defendant's motions, dismissed the proceedings, and struck out the statement of claim. The court concluded that the failure to provide the necessary particulars and the other deficiencies in the pleadings justified the dismissal and the striking out of the statement of claim.

Orders