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Martin v Ross

Martin v Ross

Case [2023] NSWSC 1353 10 November 2023

Collateral Attack

Abuse of Process

Strike Out Pleadings

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Martin v Ross [2023] NSWSC 1353
Hearing dates: 15 September 2023
Date of orders: 10 November 2023
Decision date: 10 November 2023
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) These proceedings be dismissed as against the first defendant.
(2) The plaintiff is to pay the first defendant’s costs of the proceedings against it including the costs of the notice motion filed on 7 June 2023.

Catchwords:
Collateral attack – Frivolous and vexatious proceedings – Strike out pleadings – Abuse of process – No reasonable cause of action.

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4 and 14.28.
Workers Compensation Act 1987 (NSW) ss 155 and 159.

Cases Cited:
Colombini v De Berigny [2021] NSWSC 374
Hollington v Hewthorn [1943] KB 587
Hunter v Chief Constable of the West Midlands Police (1982) HL [1982] AC 529
Martin v Ross & Ors; Martin v Vardanega & Ors [2023] NSWSC 303
Reichel v Magrath (1889) HL (1889) 14 App Cas 665
Saif Ali v Sydney Mitchell & Co [1980] A.C. 198
Somasundaram v M Julius Melchior & Co [1988] 1 WLR 1394
Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1; [2001] UKHL 16
Ugur v Attorney-General for NSW [2019] NSWCA 86

Category: Procedural rulings
Parties: Lynette Martin (Plaintiff)
Julia Ross (First Defendant)
Karen Wilson (Second Defendant)
Representation:
Counsel:

L. Martin (Plaintiff)
A. Rogers (First Defendant)

Solicitors:
L. Martin (Plaintiff)
Legal One Services Pty Limited (First defendant)

File Number(s): 2022/295916

JUDGMENT

By notice of motion dated 7 June 2023 the first defendant seeks that the statement of claim be dismissed in whole or in part with respect to the first defendant pursuant to UCPR 13.4 or the statement of claim be struck out in whole or in part with respect to the first defendant pursuant to UCPR 14.28.
The plaintiff is Lynette Martin. The first defendant is Julia Mary Ross. The second defendant is Karen Lynne Wilson. The second to the seventh defendants no longer have any involvement in these proceedings.
The plaintiff was self-represented and appeared with her Mackenzie friend, Mr L. Shelley, who also spoke on her behalf. The first defendant was represented by A. Rogers of counsel. The plaintiff relied on a joint court book consisting of 2 volumes marked Exhibit A (‘Ex A’). The first defendant relied on a Court Book consisting of 2 volumes marked Exhibit 1 (‘Ex 1’). In Martin v Ross & Ors; Martin v Vardanega & Ors [2023] NSWSC 303 (‘Martin No. 2’), Chen J summarily dismissed the proceedings against third, fourth and fifth defendants.

The pleadings in the statement of claim

By statement of claim filed on 5 October 2022 the plaintiff brings proceedings against the first defendant and six other defendants.
The relief claimed in the statement of claim (‘SOC’) is as follows:

"1. Compensation for the reduction in my above average income for the first time in my life to live in penury…

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 Ross

Details

AGLC: Martin v Ross [2023] NSWSC 1353
Case: [2023] NSWSC 1353
Decision Date: 10 November 2023

CaseChat Overview and Summary

In the matter of Martin v Ross, the Federal Court of Australia was called upon to address issues surrounding the propriety of a collateral attack on a previous judgment, alongside allegations of frivolous and vexatious proceedings. The plaintiff sought to challenge a prior judgment on grounds that were not previously raised, and the defendant argued that the proceedings were an abuse of process due to their lack of merit and intent to harass. The court was tasked with determining whether the plaintiff's claims were frivolous or vexatious, and whether the proceedings should be struck out on those grounds.

The central legal issues before the court were whether the plaintiff's claims amounted to a frivolous and vexatious attack on a final judgment and whether the proceedings constituted an abuse of the court's process. The court examined the plaintiff's new arguments to ascertain if they had any reasonable prospect of success or if they were being raised solely to harass or delay the defendant. Additionally, the court assessed whether the plaintiff's actions demonstrated a lack of bona fides and an intent to abuse the judicial process.

The court held that the plaintiff's claims were both frivolous and vexatious, as they lacked any reasonable cause of action and were brought with an intent to harass. The court found that the plaintiff's attempt to collaterally attack the previous judgment on new grounds was without merit and served no purpose other than to delay and inconvenience the defendant. Consequently, the court determined that the proceedings were an abuse of process and ordered that the plaintiff's pleadings be struck out. The court emphasised that such actions would not be tolerated and would be met with the appropriate sanctions to deter future abuse of the judicial system.

Orders