Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Odtojan v Condon [2023] NSWCA 129 Hearing dates: 31 May 2023 Date of orders: 9 June 2023 Decision date: 09 June 2023 Before: Leeming and Kirk JJA at [1] Decision: (1) Extend time for seeking leave to appeal to 30 March 2023.
(2) Application for leave to appeal dismissed with costs, such costs to be payable forthwith.
(3) Each of Ms Marie Odtojan and Mr Artem Bryl to have 14 days from today to show cause why this Court’s judgment and the papers in this Court should not be referred to the Legal Services Commissioner.
Catchwords: COURTS AND JUDGES — Bias — Apprehended bias — Actual bias — Primary judge raised many queries and concerns in the course of applicant’s oral address — Concerns about the pleading entirely reasonable — Did not prevent the applicant from properly presenting her case — Interventions did not exceed permissible bounds
CIVIL PROCEDURE — Fair hearing — Whether breach of procedural fairness in the making of the orders — Concession that amended statement of claim needed to be reformulated — Indicative orders raised with the parties — No breach of procedural fairness in the making of the orders — Reasons were not given where applicant agreed in oral submissions that she did not require reasons — Applicant gave up entitlement to reasons at the hearing
CIVIL PROCEDURE — Order below that applicant serve supporting affidavits and documents when serving draft further amended statement of claim — Whether orders made were ultra vires — Such orders fall within the power granted in UCPR r 2.1
CIVIL PROCEDURE — Pleadings — Fraud and conspiracy — Need for proper basis and articulation of any such allegations — Pleading was concededly and palpably defective
OCCUPATIONS — Legal practitioners — Applicant and solicitor acting as McKenzie friend have repeatedly accused range of persons, including legal representatives of respondent, of misconduct — No reasonable basis apparent for allegations — Solicitor acting for themselves or as a McKenzie friend bound by the Solicitors’ Conduct Rules — Possible breach of rr 5 and 32 of the Solicitors’ Conduct Rules — Opportunity to show cause why this Court should not refer this judgment and the papers in this application to the Legal Services Commissioner
Legislation Cited: District Court Act 1973 (NSW), s 127(2)(a)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rr 5 and 32
Uniform Civil Procedure Rules 2005, rr 2.1, 36.16(3B)
Civil Procedure Act 2005 (NSW), s 58(2)(b)(vi)
Crimes Act 1900 (NSW), s 317
Cases Cited: Antoun v The Queen (2006) 80 ALJR 497; [2006] HCA 2
Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082
Concrete Pty Ltd v Parramatta Design and
Day v Perisher Blue Pty Ltd (No 2) [2005] NSWCA 125
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
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- AGLC
- Odtojan v Condon [2023] NSWCA 129
- Case
- [2023] NSWCA 129
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal included whether the primary judge had demonstrated apprehended or actual bias during the applicant's oral address, whether the making of the orders breached procedural fairness, and whether the orders requiring the applicant to serve supporting affidavits and documents with a draft further amended statement of claim were *ultra vires*. The Court also considered the adequacy of the applicant's pleading of fraud and conspiracy, and the conduct of the applicant and her McKenzie friend, a solicitor, in making allegations of misconduct against others.
The Court found that the primary judge's interventions and queries during the applicant's oral address were reasonable and did not exceed permissible bounds, nor did they prevent the applicant from properly presenting her case, thus no apprehended bias was established. The Court also determined that there was no breach of procedural fairness, as the parties had been consulted on indicative orders and the applicant had conceded that her amended statement of claim needed reformulation. Furthermore, the applicant had, in oral submissions, agreed that reasons were not required, thereby relinquishing her entitlement to them. The orders made were found to fall within the power granted by UCPR r 2.1. The Court noted that the applicant's pleading of fraud and conspiracy was concededly defective. Finally, the Court expressed concern regarding the repeated and unsubstantiated allegations of misconduct made by the applicant and her solicitor, suggesting a possible breach of the Solicitors’ Conduct Rules, and provided an opportunity for them to show cause why the matter should not be referred to the Legal Services Commissioner.
The Court of Appeal ordered an extension of time for seeking leave to appeal, but dismissed the application for leave to appeal with costs payable forthwith. Additionally, Ms Odtojan and Mr Artem Bryl were each given 14 days to show cause why the judgment and papers should not be referred to the Legal Services Commissioner.
Orders
Orders of the court
(1) Extend time for seeking leave to appeal to 30 March 2023.
(2) Application for leave to appeal dismissed with costs, such costs to be payable forthwith.
(3) Each of Ms Marie Odtojan and Mr Artem Bryl to have 14 days from today to show cause why this Court’s judgment and the papers in this Court should not be referred to the Legal Services Commissioner.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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