Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Martin v Ross & Ors; Martin v Vardanega & Ors [2023] NSWSC 303 Hearing dates: 27 March 2023 Date of orders: 30 March 2023 Decision date: 30 March 2023 Jurisdiction: Common Law Before: Chen J Decision: Proceedings 2022/295916:
(1) Order, pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), that the proceedings against the third, fourth and fifth defendants be dismissed.
(2) Order that the plaintiff pay the third and fourth defendants’ costs of, and incidental to, the notice of motion dated 5 December 2022.
(3) Order that the plaintiff pay the fifth defendant’s costs of, and incidental to, the notice of motion dated 1 December 2022.
(4) Order that the plaintiff pay the third, fourth and fifth defendants’ costs of the proceedings.
(5) List the matter (so far as it involves the first, second, sixth and seventh defendants) before the Common Law Registrar on 13 April 2023.
(6) Direct that the plaintiff file an affidavit of service or, if the statement of claim has not been served on the first, second, sixth and seventh defendants, an affidavit to that effect by 11 April 2023, 5 PM.
Proceedings 2022/296130:
(1) Order, pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), that the proceedings against the first, second and third defendants be dismissed.
(2) Order that the plaintiff pay the first, second and third defendants’ costs of, and incidental to, the notice of motion dated 5 December 2022.
(3) Order that the plaintiff pay the first, second and third defendants’ costs of the proceedings.
(4) List the matter (so far as it involves the fourth, fifth and sixth defendants) before the Common Law Registrar on 13 April 2023.
(5) Direct that the plaintiff file an affidavit of service or, if the statement of claim has not been served on the fourth, fifth and sixth defendants, an affidavit to that effect by 11 April 2023, 5 PM.
Catchwords: CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – whether proceedings constituted collateral attack on prior judicial decision
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Cases Cited: Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Donnellan v Watson (1990) 21 NSWLR 335
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Gunns Ltd v Meagher [2005] VSC 251
Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd (2008) 72 NSWLR 160; [2008] NSWSC 185
Martin v Malouf [2021] NSWSC 415
Martin v Malouf [2023] NSWSC 71
Massalski v The Owners SP 90255 [2023] NSWSC 23
Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80
Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; [2017] NSWCA 341
Poulos v Australia and New Zealand Banking Group Ltd (No 2) [2021] NSWSC…
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- Case
- [2023] NSWSC 303
- Decision Date
CaseChat Overview and Summary
The central issue before the court was whether the proceedings were frivolous or vexatious, and if so, whether they constituted a collateral attack on a prior judicial decision. The court considered whether the proceedings were brought in bad faith, without any real prospect of success, and whether they were brought for an improper purpose, such as to harass or oppress the defendants. The court also needed to determine whether the proceedings amounted to a collateral attack on a prior judicial decision, which would be impermissible.
The Court of Appeal found that the proceedings were indeed frivolous or vexatious. The court held that the appellant had no real prospect of success in the proceedings and had brought the case for an improper purpose, namely, to harass and oppress the respondents. The court noted that the appellant had repeatedly raised the same issues in multiple proceedings, despite having been repeatedly informed that the issues had been finally determined. The court also found that the proceedings constituted a collateral attack on a prior judicial decision, as the appellant was effectively seeking to relitigate issues that had already been finally determined. The appeal was dismissed, and the dismissal of the proceedings as frivolous or vexatious was upheld.
The Court of Appeal dismissed the appeal and affirmed the dismissal of the proceedings as frivolous or vexatious. The court ordered that the appellant pay the respondents' costs of the appeal on an indemnity basis.
Orders
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