Odtojan v Condon

[2023] NSWCA 129

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

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68

Marie Odtojan v Credit Corp Services Pty Limited [2019] NSWDC 273

Minister Administering the Crown Lands Consolidation Act and Western Lands Act v Tweed Byron Local Aboriginal Land Council (1990) 71 LGRA 201

Muriniti v Kalil [2022] NSWCA 109

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48

Saltoon v Lake [1978] 1 NSWLR 52

Simpson v Hodges [2007] NSWSC 1230

The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Category:

Principal judgment

Parties:

Marie Odtojan (Applicant)
Miles Condon (Respondent)

Representation:

Advocates:

Artem Bryl (McKenzie friend for applicant)
Anthony McInerney SC and Winnie Liu (Respondent)

Solicitors:

DLA Piper Australia (Respondent)

File Number(s):

2023/103644

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

16 February 2023

Before:

Norton DCJ

File Number(s):

2022/00273980

JUDGMENT

1. THE COURT: The applicant, Ms Marie Jossane Odtojan, is a solicitor who has brought proceedings in the District Court against the respondent, a senior counsel. Both practise in Sydney. The claim involves very serious allegations that, in effect, the respondent conspired to pervert the course of justice when he provided legal advice to her in 2016. The amended statement of claim (ASOC) was struck out by the primary judge, Norton DCJ, who gave leave to replead and made some associated orders.

2. Given the nature of the allegations and the way they had been pleaded it was practically inevitable that the ASOC would be struck out. Nevertheless, and despite the facts that she was permitted to replead and seemed to concede in the Court below that the pleading was deficient, the applicant now seeks leave to appeal from these orders. Although she appeared for herself in the District Court, and the written submissions in this Court were signed by her, her husband Mr Artem Bryl (who is also a solicitor) appeared for her when the application was heard, in effect as a McKenzie friend. The Court sought and obtained confirmation with Ms Odtojan that she was content for her husband to do so. For his part, Mr Bryl confirmed that he had a substantial role in the written submissions and he expressly took professional responsibility for them. Ms Odtojan and Mr Bryl practise together as Odtojan Bryl Lawyers.

3. Leave to appeal is required because the appeal is from interlocutory orders: District Court Act 1973 (NSW), s 127(2)(a). Generally speaking, it is appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable: see eg The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]. Particular caution is called for in granting leave to appeal for decisions dealing with matters of practice and procedure: eg PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3].

4. Given the nature of the issues raised, along with our concerns about the manner in which the proceedings were being conducted, we permitted Mr Bryl to be heard for around triple the time which is normally allocated to matters for the determination of leave. He addressed for around an hour in chief, then Mr McInerney SC addressed for some 15 minutes on behalf of the respondent, after which Mr Bryl had some 20 minutes in reply. Both sides were given leave to supply references to authorities on one discrete point by 5pm on the day of the hearing. This judgment is of greater than usual length for an application for leave to appeal given the nature of the issues raised.

5. The applicant seeks to raise four core complaints in her draft notice of appeal:

1. that the primary judge manifested bias, both actual and apprehended;

2. that the applicant was not provided a fair hearing;

3. that the primary judge failed to provide reasons for her decision;

4. that the orders made were ultra vires.

6. None has merit. The applicant has not established that the case raises issues of principle, questions of general public importance or a reasonably clear injustice going beyond something that is merely arguable. What is more, there is very little utility in the appeal. Although the applicant submits to the contrary, the transcript records that she advised the primary judge that she wished to amend, and she was granted leave to do just that. In this Court, Mr Bryl ultimately, and very reluctantly, conceded that if the litigation were to proceed parts of the pleading would be amended. What follows from that is that all that is at stake is certain conditions placed by the primary judge upon the grant of leave to replead. It is true that those conditions are unusual, and in particular the applicant has been directed to supply all affidavits on which she proposes to rely and a paginated bundle of documents upon which she relies at the same time the amended pleading is served. Nothing we have seen in connection with this dispute suggests there is any appellable error in making that direction, let alone error warranting a grant of leave. Leave to appeal will be refused with costs.

7. The applicant’s four complaints will be addressed in turn below. Before doing so it is appropriate first to set out the context in which these issues arise, and then to consider the ASOC and its deficiencies.

8. There is a further matter requiring consideration: the demonstrated capacity of both Ms Odtojan and Mr Bryl to make allegations of serious criminality and misconduct without a proper foundation. Their attention was drawn to the obligations to which each was subject in correspondence from the respondent’s solicitors prior to the hearing, and by each of us during the hearing. We asked, repeatedly, for Mr Bryl to identify the basis upon which the unparticularised allegation was made in the ASOC that the respondent had “conspired to provide wilful false representations of material facts and issues in appeal advice and the grounds for appeal, premeditating to cause the Plaintiff to suffer loss and damages” [sic]. Despite being given several opportunities to do so, his response was in substance that this was to be inferred from the oral and written advice given. We address the consequences at the end of this judgment.

Background

The Local Court proceedings in 2016

9. The applicant had a credit card issued by St George Bank. The Bank’s rights under that contract were assigned to another company, Credit Corp Services Pty Ltd (CCS). That company brought proceedings in the Local Court against the applicant for unpaid credit and interest. The applicant was represented at the hearing by junior counsel, Mr Nicolas Ford. Shortly before the Local Court hearing a new instructing solicitor, Mr Thomas Glynn, was retained, where previously the applicant’s own firm had been acting.

10. In the proceedings the applicant agreed that she had received the credit card, had used it, and had made various repayments to St George. However, she disputed her liability to pay the amounts claimed.

11. The Local Court upheld the claim against the applicant. Magistrate Freund listed the issues she had to determine at [6] of her written judgment. The first three issues, and her Honour’s resolution of them, were as follows:

1. Did the applicant attend the Castle Hill branch of St George Bank on 25 February 2006, execute a bank declaration form and collect the credit card? She denied it. The Court held that she had done so.

2. Did the applicant receive an unsolicited credit card from St George Bank? The Court found that the credit card was not unsolicited.

3. Was the applicant provided with contractual documents, including the applicable terms and conditions, in relation to the credit card? The Court found that she had been provided with the terms and conditions applicable to the credit card on the day that she attended the bank to collect it.

12. The Magistrate’s decision was handed down on 16 August 2016. The applicant then wanted advice as to appeal prospects. According to the applicant’s ASOC, Mr Ford recommended that such advice be sought from the respondent, who had not hitherto had any role in the proceedings. It is said in the ASOC that the last day to lodge an appeal was on 13 September 2016. An email to the applicant from the respondent dated 9 June 2017, which was exhibited to the applicant’s affidavit and which responded to allegations made by her in a 16 page letter, included the following account of how and when he came to review the brief:

Turning to the speed with which I looked at your matter, I no longer have the brief; I suspect it was returned in the normal course. However, my emails would suggest that I received the brief on or shortly after 30 August; I read the brief on Sunday, 4 September; and on 7 September I sought to have a conference with Mr Ford. Mr Glynn was also invited. Mr Ford was unable to see me until late on Friday afternoon due to other court commitments.

I reiterate that the proposed appeal arose from a judgment where the magistrate had made detailed factual findings against you. I did not propose to state a final view until I have spoken to Mr Ford. He was the person I spoke to on that afternoon (9 September) and, so I recall, on 13 September.

13. The applicant and her husband met with the respondent and Mr Ford at about 8am on Monday 12 September 2016. The ASOC says that Mr Glynn did not attend. Mr Glynn did, however, send an email to the applicant at 6:35pm that evening summarising the advice that had been provided in conference that morning. The email included the following points:

1. Appeals to the Supreme Court from the Local Court can only be “on a question of error of law”, with any other grounds of appeal requiring leave of the Supreme Court.

2. The applicant had been asked to outline the errors she saw in the judgment but all of the matters raised were factual in nature.

3. The Magistrate had made credit based findings against the applicant, and credit based appeals are always difficult and generally cannot provide a basis for an appeal.

4. There were no reasonable prospects of success on any appeal, subject to the respondent checking one point relating to whether it could be argued that the bank had breached the Credit Code such as to render the contract unenforceable.

14. The next day, 13 September 2016, Mr Ford emailed the applicant a written advice, recorded as being a joint advice from him and the respondent. Amongst other things the advice noted that the Magistrate had not made a finding that “the documents were signed as required by section 12 of the Credit Code”. However, the advice concluded that a ground of appeal based on this point was not arguable.

15. The applicant did not file an appeal from the decision of the Local Court. The respondent sent an invoice to Mr Glynn for 6 hours 45 minutes work.

The proceedings below and the motion at issue

16. The applicant commenced the proceeding against the respondent in the District Court in 2022. Separate proceedings were commenced against each of Mr Ford and Mr Glynn. The respondent’s solicitors wrote to the applicant on 11 October 2022, after the proceedings had been commenced, saying amongst other things:

The allegations are outrageous. They are very serious allegations which include assertions of criminal conduct and should never be made without a proper foundation, particularly by a legal practitioner of the Supreme Court of New South Wales.

17. In the hearing at issue in the Court below the respondent moved on an amended motion seeking, amongst other things, summary dismissal or striking out of the whole of the claim against him; orders setting aside a notice to produce and notice to admit facts that had been issued to him by the applicant; consolidation of this matter with the claims against Mr Ford and Mr Glynn; and directions that the applicant produce all documents referred to in the ASOC, give verified discovery and produce all affidavits on which she relies within a particular time, implicitly prior to any defence being filed. It seems that similar motions were relied on by Mr Ford and Mr Glynn.

18. Her Honour made orders on the day of the hearing. Her Honour did not give reasons, in circumstances explained below. The orders made were as follows:

(1) The whole of the plaintiff’s Amended Statement of Claim filed 11 October 2022 be struck out pursuant to r 14.28 UCPR.

(2) Leave granted to the plaintiff to file a Further Amended Statement of Claim limited to allegations relating to the provision of advice with regards to appeal of the Local Court Judgment to the Supreme Court.

(3) Proceedings 2022/00273980, 2022/00273977 and 2022/00242555 be heard consecutively with evidence in one being evidence in each of the other two claims.

(4) The plaintiff’s Notice to Produce and Notice to Admit Facts served on 14 November 2022 be set aside under UCPR r 2.1 and/or s 61(1) of the Civil Procedure Act 2005, for her non-compliance with relevant rules for such notices.

(5) The plaintiff is to serve a draft Further Amended Statement of Claim by 30 March 2023.

(6) The plaintiff is to serve all affidavits on which she intends to rely in support of the Further Amended Statement of Claim by 30 March 2023.

(7) The plaintiff is to serve a paginated and indexed bundle of documents together with an itemised index identifying these documents by date, author, recipient and description on which she relies with regards to the Further Amended Statement of Claim by 30 March 2023.

(8) Plaintiff is to pay the costs of the motion and the costs thrown away by the filing of the Further Amended Statement of Claim.

NOTES

• The plaintiff has conceded that all 3 statements of claim do not conform with UCPR and has sought an adjournment.

• The plaintiff has accepted that the Statement of Claim makes very serious allegations and precise pleading is required.

• Note the Statement of Claim was filed 6 years after events said to give rise to these proceedings and has been amended once.

• The plaintiff has given an undertaking to obtain independent legal advice with regards to the Further Amended Statement of Claim.

19. The applicant did not originally seek a stay of these orders. So far as we can see a stay was not foreshadowed until 6 April 2023, when it was sought in an amended summons seeking leave to appeal filed on that day. By then the time imposed by the orders to supply a further amended statement of claim and supporting materials had already expired. In any event the dismissal of the application for leave to appeal renders a stay inappropriate.

The ASOC and its deficiencies

20. The ASOC against the respondent is pleaded over 22 pages. The pleading is repetitive, unclear and contains allegations the relevance of which is not apparent, such as complaints about when the respondent provided advice to the applicant. Allegations made include the following:

1. It is said at [12] that in July 2017, having reviewed the Local Court files, the applicant:

discovered the pre-meditated and concerted effort by Mr Ford and Mr Glynn conspiring with CCS and its legal representatives to defraud the Plaintiff at the final hearing, to conduct a trial by ambush on the Plaintiff with intent to eliminate the central issue of the alleged Credit Contract, perverting the administration and the course of justice in order to obtain an illegal judgment and costs order against the Plaintiff.

2. No particulars are provided in the ASOC for this remarkable, extraordinarily serious allegation.

3. It is said at [13] that the applicant “discovered that at the final hearing, there was no Credit Contract produced in evidence, the material issues of an alleged Credit Contract and breaches of Credit Laws were never ventilated nor determined by the court”. How it is that the applicant could have been unaware of these claimed points – although she was the litigant, is herself a solicitor and was present throughout the Local Court hearing (as was confirmed in the hearing in this Court) – is not explained.

4. At [26] it is said of the advice set out in Mr Glynn’s email of 6:35pm that it “contained intentionally dishonest representations with intent to mislead, confuse, distress and commit further improprieties in appeal advice and in appeal court proceedings in the event the Plaintiff had preceded with the appeal at the Supreme Court”. The particulars for this paragraph identify a series of statements in the email said to be false and misleading, but do not identify any basis for the allegation that they were false and misleading. The last particular states that the respondent, Mr Ford and Mr Glynn “in concert falsely referred to a Credit Contract when they are aware there is no contract in evidence and where they never sighted nor reviewed any contract in giving the appeal advice to the Plaintiff”. No basis is given for the serious allegation that the three practitioners had acted in concert to deceive the applicant. Nor is there any explanation, again, of how the applicant would have been deceived about the case she had run in the Local Court, being a case in which the respondent had not been involved.

2. At [29] it is said that the written advice of 13 September 2016 “provided intentionally false material facts and issues for grounds of appeal with intent to mislead the plaintiff and prevent her from discovering the material facts and issues and prevent her from appealing the judgment as follows”, then listing various claimed flaws. For example, it is said that the advice “[i]ntentionally omitted the material fact and issue of the existence of the alleged Credit Contract and the issue that there was no Credit Contract in evidence”.

3. As noted above, the ASOC states at [30] that the respondent, Mr Ford and Mr Glynn “had conspired to provide wilful false representations of material facts and issues in appeal advice and the grounds for appeal, premeditating to cause the plaintiff to suffer loss and damages” [sic]. No particulars are provided for this extremely serious allegation.

4. At [32] the ASOC says the “advice was made with intent to commit further acts of fraud against the Plaintiff in the appeal proceedings where false material facts and issues in the appeal advice dated 12 and 13 September 2016 falsely referred to a Credit Contract where the Defendant, Mr Ford and Mr Glenn knew no contract was ever provided and they did not cite nor review any contract in making the appeal advice they provided to the plaintiff”. Again, no particulars are provided.

21. The ASOC goes on to make numerous further allegations of a similar, serious, unparticularised kind. Damages, including exemplary and aggravated damages, of hundreds of thousands of dollars are sought. The compensatory damages include the amount of the Local Court judgment and the costs awarded against her.

22. Although not entirely clear, it seems that the applicant’s claims are based upon the torts of deceit, conspiracy by unlawful means and negligence. The theory seems to be that had the misconduct by the respondent not occurred then the applicant would have appealed from the Local Court decision, that appeal would have been successful, and the result would be that she would not have to repay any sums to the bank’s assignee, nor would she have to pay the costs of the Local Court trial. The difficulties with this are considerable, as was made plain in the respondent’s advice. The applicant was cross-examined before the magistrate on her recollection of what had occurred a decade earlier when she acquired the credit card. The magistrate found that her evidence “was both self serving and unreliable” (at [49]) and “evolving and self serving” (at [56]), that her memory was “clearly fallible”, by reason of her denial that she had attended Epping on 25 February 2006 but she “had to concede that she had done so once she had been shown the Account Statement evidencing the ATM withdrawal from her account” (at [51]-[52]). The magistrate stated that ultimately the applicant conceded she was not 100% sure she received the credit card by post, and summarised her conclusion thus (at [56]):

[the concession and evidence] left me quite frankly with a witness of very little memory of a day that only took on significance much later in life who has in my opinion reconstructed those details accordingly. It is of note that phone records put her in Castle Hill in the morning of 25 February 2006 and she makes her first purchase on the Credit Card that afternoon in Homebush.

23. That in turn led to the conclusion that the applicant attended St George Bank at Castle Hill on 25 February 2006 and executed the “Card Collection/ Overdraft/ Get Set Checklist Declaration” form and declaration (at [66]).

24. No-one in this State is above the law, including solicitors and senior counsel. If the respondent has a case to answer then answer it he must. But he is entitled to a fair process in accordance with long-established principles of practice and procedure. The applicant seeks to make allegations against him, and others, of a very grave kind. The applicant seems to allege two conspiracies to pervert the course of justice, the first involving Mr Ford, Mr Glynn, CCS and its legal representatives; then a second involving the respondent, Mr Ford and Mr Glynn.

25. It is basic law that such allegations should not be made unless there is a proper basis for doing so. It “has frequently been said that fraud must be pleaded distinctly and with particularity and clearly proved”: Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573; [1995] HCA 68; note also UCPR, r 14.14. An “allegation of fraud, or participation in fraud, is not lightly to be made”: Saltoon v Lake [1978] 1 NSWLR 52 at 58. The ASOC does not come anywhere near to complying with these longstanding requirements. It was practically inevitable that the whole of it would be struck out if and when such was sought.

26. This Court sought to clarify what was said to be the basis of, for example, the conspiracy allegation at [30] of the ASOC. This involved the following exchange:

KIRK JA: Paragraph 30 of the ASOC, p 52 of volume 1 of the white book. Recognizing, of course, there's [sic – as] no doubt you do, but to make allegations, either in a pleading or in oral submissions in any Court, including this Court, without a proper basis for doing so is seriously unethical.

BRYL: Your Honour, I totally recognize that

…

KIRK JA: Come back to the conspiracy allegation at para 30. Conspiracies, I'm sure you’ll understand, involves people reaching an agreement. I understand Ms Odtojan is alleging a conspiracy by unlawful means. There has been no articulation of when that agreement was reached, by whom it was reached, what the purpose of it was, what the end of it was, what the nature of it was. Are you able to explain to us what Ms Odtojan says is the nature of this conspiracy and the basis on which this serious allegation is made?

BRYL: The nature of the conspiracy is that Mr Ford and Mr Glynn, I'll just start with them, have not acted genuinely for the applicant. They have not represented her best interests. In fact, in the proceedings against them, it’s alleged that they're acting against the best interests of the plaintiff at all times, not following instructions, filing false documents, falsifying evidence, tampering with evidence; that's alleged against Mr Ford and Mr Glynn. Upon them obtaining the judgment, which is against the best interest of the plaintiff in those proceedings, they sought to protect themselves through providing that appeal advice, where Mr Ford specifically stated that she needs to engage Mr Miles Condon of New Chambers, which the applicant did.

On 4 September, Mr Condon recorded that he received a brief and he read it. It took him until 12 September, one day before the expiry of the time to launch an appeal, 28 day timeframe, to meet with the applicant at his chambers at 8 o'clock on 12 September to confirm that there is no credit card contract that was ever provided from confirming with Mr Ford.

KIRK JA: Have you got any basis you can point to that Mr Condon agreed, met with, or in some way communicated with Mr Ford and Mr Glynn, to agree to conspire to undermine the administration of justice and defraud your client.

BRYL: These are overt acts which can be inferred through the conduct of the people who are participating in the conspiracy.

LEEMING JA: So what’s the conduct?

BRYL: The conduct is representing to the applicant, in her face at the meeting, that there is no credit card contract; it has never been produced.

LEEMING JA: The advice given at the conference, attended by you and your wife, that is the conduct from which an overt act conspiracy is to be inferred; am I correct to understand that’s the way you put the case?

BRYL: I'm trying to explain it because there is subsequent event next day, and the same afternoon on 12 September and the next day of 13 September, where the critical timeframe to file an appeal, and the applicant was in the Supreme Court on that day, with the paper in her hands, waiting for the appeal advice. At 3 o'clock, she receives an appeal advice that she should not appeal, and if she appeals, she should file the summons recording that there was unsigned credit card contract.

LEEMING JA: Is this right, the actual meeting on one day, the follow up email from the junior counsel on the following day, and then the formal advice on the last day before the appeal time expired. Those are the facts on which, you say, it should be inferred there was a conspiracy between solicitor and junior counsel and senior counsel to do the things you allege in the statement of claim. Is that the case that you're putting forward?

BRYL: Yes.

27. Mr Bryl was then asked if there was anything else relied upon as a basis. He referred to the applicant having asked the respondent in 2017 about the “alleged contract”, and also to some supposed admissions that Mr Glynn had made in the course of a subsequent costs assessment.

28. What emerges from this exchange is that the applicant and Mr Bryl are unable to point to anything approaching a proper basis for having made the conspiracy allegation at [30]. They seem to take the view that because they did not like the advice Ms Odtojan was provided then they are entitled to use court process to allege that the advice was fraudulent and made pursuant to some conspiracy without a shred of evidence for any such conspiracy or fraud beyond the fact that the advice was given. That involves a grave misunderstanding of the ethical obligations of legal practitioners.

29. To seek to invoke court processes to make such allegations without a proper basis is an abuse of process. No such basis has been articulated in the ASOC, nor in the answer to questions from this Court. The applicant’s conspiracy theories seem entirely speculative. Indeed, they appear difficult to reconcile with the facts, alleging attempts to mislead the applicant about the existence of a contract between the St George Bank and herself, where that was the very subject of dispute in the Local Court proceedings as the applicant must have known.

30. Relevant principles about alleging fraud were summarised by this Court in Minister Administering the Crown Lands Consolidation Act and Western Lands Act v Tweed Byron Local Aboriginal Land Council (1990) 71 LGRA 201 at 203-204:

In the pleading of fraud, some requirements of the law are clear beyond argument. These requirements are not only rules of pleading and practice established by decisions of the courts. They are rules of ethical conduct binding on members of the legal profession. It is a serious matter to allege fraud against a party in pleadings to which attach the privileges incidental to court proceedings. Reports of such allegations may be recounted in the community and through the public media. They may do great harm to a party before a word of evidence has been offered and submitted to the searching scrutiny of cross-examination or to rebuttal. It is for this reason, amongst others, that legal practitioners must take care to have specific instructions and an appropriate evidentiary foundation, direct or inferred, for alleging and pleading fraud. We say inferred, because it will sometimes be impossible to prove fraud by direct evidence. The tribunal of fact may be invited to draw an irresistible inference of fraud from the facts proved. Of its nature, fraud is often perpetrated covertly. The perpetrators of fraud will often take pains to cover their tracks.

Professional discipline may follow if allegations of fraud are made where the foregoing conditions are not satisfied. By such means, courts protect their process from the abuse which would follow from the too ready assertion of fraud against a party, in circumstances where it could not be proved to the high standard required of such allegations …

31. Recognising that fraud may be committed covertly does not diminish the need to have a proper foundation for making any such allegation. Lacking direct proof is one thing. Engaging in speculation is another. Nothing in the reasonably voluminous materials before this Court suggest that there is any foundation for the allegations the applicant seeks to make against the respondent.

32. The applicant is a solicitor. The fact that she is acting for herself does not excuse her from her ethical obligations. Nor does the fact that Mr Bryl sought to appear merely as a McKenzie friend excuse him from his. As indicated in the case just quoted, for a legal practitioner to make allegations of the kind made here without a proper foundation can lead to disciplinary proceedings against the practitioner. In the correspondence between the applicant and the respondent’s solicitors there are suggestions that the Solicitors’ Conduct Rules are inapplicable because the applicant acted for herself. The same theme appears to underlie the applicant’s submissions in response, which include (as written):

The Respondent had casted unjustifiable aspersions on the Applicant, her profession as a legal practitioner and her firm. Despite notice to cease threatening and referring to the Applicant’s profession where she is not in capacity of a legal practitioner in these proceedings, the Respondent and his legal representatives wilfully continued to refer to and threaten the Applicant’s profession.

33. A footnote to that submission refers to the respondent’s written submission to the Court below which say that “Ms Odtojan, as a solicitor, has engaged in conduct unbecoming of a solicitor by abusing ‘absolute’ privilege”. In her submission to that Court the applicant submitted in response that for senior counsel acting for the respondent to make “such unfounded allegations is a breach of his duties and misleads the court”.

34. The suggestion that Ms Odtojan is free from her professional obligations because she herself is a litigant misapprehends the obligations of a solicitor. It suffices to mention rules 5 and 32 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015:

5 Standard of conduct—dishonest or disreputable conduct

5.1 A solicitor must not engage in conduct, in the course of legal practice or otherwise, which—

5.1.1 demonstrates that the solicitor is not a fit and proper person to practise law, or

5.1.2 is likely to a material degree to—

(i) be prejudicial to, or diminish the public confidence in, the administration of justice, or

(ii) bring the profession into disrepute.

32 Unfounded allegations

32.1 A solicitor must not make an allegation against another Australian legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bona fide and the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it.

35. Both of those rules were applicable to Ms Odtojan when she was appearing for herself in the proceedings in the District Court. Both of those rules were applicable to Mr Bryl when he was speaking for Ms Odtojan in this Court. To be clear, in confining for present purposes our attention to those rules we are not to be understood as suggesting that no other rules were applicable.

36. We address at the end of this judgment how we propose to proceed in light of these and other concerns about the conduct of Ms Odtojan and Mr Bryl. We now turn to address the four complaints raised by Ms Odtojan in her application for leave to appeal.

Alleged bias

37. In her written submissions the applicant alleges that the primary judge manifest actual and/or apprehended bias, in particular as follows:

1. not allowing the applicant a fair opportunity to present her case, including by interjecting consistently in a way which she had not done with senior counsel appearing for the respondent;

2. manifesting prejudgment and a mind that was closed to the applicant’s arguments before she had presented them;

3. stating that she would make similar orders for the other two matters before they had been heard.

38. The test for apprehended bias asks whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. An allegation of actual bias involves suggesting that the judge in fact did not bring an impartial and open mind to bear on the issues in dispute. In our view it is not reasonably arguable that either test is satisfied here such as to warrant a grant of leave.

39. The hearing of the motions by the respondent, Mr Ford and Mr Glynn were listed for a day. The transcript is in evidence, and Mr Bryl confirmed in this Court that it was not suggested that there were any material omissions or corrections to be made to it. The transcript records the following.

40. Senior counsel appearing for the respondent went first, and spoke over some 19 pages of transcript. Part of that address involved explaining what the three proceedings were about. It is incorrect to say, as the applicant does in her written submissions, that the primary judge “allowed the Respondent/other parties to make their submissions uninterrupted, no questions nor clarifications were sought from them on any substantive matters”. Her Honour did ask counsel for the respondent questions and sought clarification of various matters.

41. When counsel for the respondent had finished the primary judge noted that she would normally take the morning tea break at 11.30am, but asked if the applicant would like to take the break “now [ie implicitly, early], so you can organise your thoughts before you start to address me”. The applicant said she would like to do so. Counsel for one of the other defendants then suggested that a different approach might be for the judge to hear from all of the defendants first, and then hear from the applicant. The judge said that was a matter for the applicant, who opted to proceed “one at a time”. That was the course adopted. In these ways the primary judge manifested a concern not to disadvantage the applicant.

42. After the morning tea break the applicant spoke in response to the respondent’s counsel. There was a further 19 pages of transcript until lunch was taken, and for most of that time the applicant was in address. Her Honour raised many queries and concerns in the course of that address. It cannot fairly be said that in so doing she prevented the applicant from properly presenting her case.

43. Nor can it be said that her Honour manifested prejudgment. She did raise concerns about the pleading, and some of these were quite strongly expressed. They were also entirely reasonable, as is reflected in what we have said above about the palpable and substantial deficiencies of a pleading which made serious and extraordinary allegations. In so doing her Honour was making clear what troubled her about the pleading so as to give the applicant a chance to respond. There would be few if any judicial officers who would not have been perturbed by the unparticularised contents of the ASOC.

44. Whether judicial interventions and observations exceed what is a proper and reasonable expression of tentative views is a matter of judgment taking into account all of the circumstances of the case: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [112]. That judicial statements are “[c]ritical, strong and candid” does not necessarily establish that they manifest a closed mind or bias: ibid at [180]. This case is nothing like Antoun v The Queen (2006) 80 ALJR 497; [2006] HCA 2, for example, in which the judicial officer was told that a particular application would be made the following day and responded “I see, well that application will be refused”. And as Kirby J said in that case at [27], “[f]or centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court's time or doomed to fail”. Her Honour’s comments in this matter were not as robust as that.

38. The following extract gives a flavour of the interactions:

HER HONOUR: The statements of claim are, with respect to a large number of paragraphs, very much the same. And they all suffer, in my opinion, from the same problem. What is the conspiracy? What is the purpose of the conspiracy? When was it formed? How can you prove that there was an agreement? What were the positive steps taken by each party in the conspiracy to advance the conspiracy? And at the moment, I can’t even see what benefit the conspiracy possibly could have been to any of the people that you have brought proceedings against. But that’s by and by.

PLAINTIFF: The case –

HER HONOUR: And you haven’t joined the solicitors from the credit company, who you say are part of the conspiracy.

PLAINTIFF: They’re not my legal practitioners.

HER HONOUR: But they’re part of a conspiracy that you say has led to a perversion of the course of justice. So –

PLAINTIFF: Yes.

HER HONOUR: So, why are they not joined?

PLAINTIFF: I haven’t joined them.

HER HONOUR: You’re not suing in contract. You’re suing in deceit and negligence and conspiracy.

PLAINTIFF: Yes, I am. I am suing in conspiracy. And Mr Ford and Mr Glynn have a special relationship to me. I am a client. And I also have a cause of action of intentional negligence and a tort of deceit.

HER HONOUR: I see.

PLAINTIFF: And in relation to, my evidence would be the court transcript, which shows that there are fraudulent conduct or representing a contract which doesn’t exist, entertaining that judgement by fraud. And because of that, I have suffered damage.

HER HONOUR: Well, if that’s your case, it does not emerge from the pleadings very clearly. And I don’t on what you’re saying, see how it could amount to a cause of action. Ms Odtojan, these are very serious allegations and if any of this has happened – and I’m not assuming that it hasn’t for this purpose, I’m taking your statement of claim at the highest. But at the highest, I don’t understand it.

46. The questions her Honour asked in the first quoted paragraph were all apposite. The exchange illustrates that the primary judge was making clear that she had serious doubts about what had been pleaded, she was exposing those doubts and allowing the applicant a chance to respond, and she listened to and manifest understanding of the response given. Neither the quoted passage, nor anything else in the transcript, exceeds permissible bounds or is such that a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the motion before her. There is certainly no evidence of actual bias.

47. As for the argument that the judge manifested bias by suggesting she would make similar orders for the other two matters before they had been heard, that only arose after lunch when her Honour proposed particular orders (as discussed below). Prior to lunch her Honour had already indicated that she was going to strike out the ASOC but give the applicant an opportunity to replead.

48. The allegations of actual and apprehended bias do not warrant a grant of leave.

A fair hearing

49. To a significant extent the applicant’s complaints about the lack of a fair hearing overlap with the bias allegations and should be rejected for the same reasons. The applicant was provided a reasonable opportunity to be heard.

50. Indeed, in one important point the respondent was unsuccessful. He opposed the applicant being given a chance to replead. But the primary judge rejected the submissions of the respondent that the matter should be summarily dismissed and gave leave to replead.

51. Immediately after an exchange in which the applicant said that her husband would like to be heard in addition to herself (to which her Honour said “No, one person speaks”), there was the following exchange:

HER HONOUR: Well, if he wants to have some input, he can have some input into drafting a statement of claim that complies with the rules. Do you wish an opportunity to do that, or do you wish to continue this hearing as it is

PLAINTIFF: Yes, I definitely would like to. Yes, your Honour.

52. Thereafter the primary judge indicated to the applicant near the end of the applicant’s submissions that she would “generally give people a chance to replead”, leading to the following exchange:

PLAINTIFF: Your Honour, I want to replead, if that’s what you are putting to me, to replead.

HER HONOUR: I’m not putting anything to you. I’m saying that it’s a matter for you. Do you want to ask for some time to replead?

PLAINTIFF: Yes, your Honour, I would.

HER HONOUR: Or do you say that these pleadings do encompass whatever it is you say is the cause of action?

PLAINTIFF: Your Honour, I would like to have time to replead because there is a cause of action here. And the evidence will show that it can be supported. And I understand that your Honour says it’s not pleaded to the rules. It’s not the easiest thing to plead. There is a lot of material. It’s very serious allegations, as you said, and I agree with that and I do – would like you to consider that I – my request for re-pleading so that it can comply with those rules or pleading of conspiracy.

53. That exchange appeared to involve a concession that the ASOC needed to be reformulated.

54. After the luncheon adjournment, the primary judge raised some indicative orders with the parties, the first of which was a note that “[t]he plaintiff has conceded that the statement of claim does not comply with the UCPR and sought an adjournment to replead”. (We interpolate that the applicant makes much of the fact that in the final orders that concession is expressed to extend to all three matters. But we are dealing only with the proceedings brought against the respondent.) If her Honour were incorrect in recording the concession, the applicant was given fair opportunity to say so. Indeed, when the applicant asked for the orders to be repeated, her Honour did so. At no stage did the applicant suggest that her Honour’s note of the concession was inaccurate.

55. A particular issue about two of the orders should be addressed. Order (3) was that the claims against the respondent, Mr Ford and Mr Glynn “be heard consecutively with evidence in one being evidence in each of the other two claims”. The applicant said in her written submissions that “the consolidation issue was neither ventilated, argued nor determined at the court hearing”. That statement is incorrect. Senior counsel for the respondent addressed the issue saying, for example, that “one has the usual problem of inconsistent findings and judgments from three different judges hearing, in effect, the same factual substratum three different times”. The applicant could have responded to these submissions if she had wished. In any case, she was provided a further opportunity to make submissions, as explained in what follows with respect to order (4).

56. That order set aside a notice to produce and notice to admit facts served on the respondent by the applicant. Such an order had been sought by the respondent in his amended notice of motion but the respondent’s senior counsel had not addressed the issue at any length in his oral submissions. When he asked the judge if he should address it or come back to the issue, her Honour said “[n]o, I think one set of issues at a time is probably enough for me”. As noted above, immediately after the lunch adjournment – by which time her Honour had indicated that she regarded the ASOC as needing to be repleaded – the judge read out some suggested orders, which in substance were the orders made in due course. The draft orders included orders (3) and (4). Before reading out the draft orders her Honour said that “these are some orders that I thought might be appropriate, and again, it’s just a ‘might be appropriate’, and so if everyone would listen to them and tell me what they think”.

57. Senior counsel for the respondent then made some submissions on the draft orders. The applicant then asked if they could be read out again, which her Honour did, after which the applicant sought some clarification and made some further submissions. After some exchanges, her Honour said the following:

Now, with respect, we’re just dealing with Mr Condon’s statements of claim against him now. Is there anything you wish to say against the making of the orders I’ve just read out in respect of that statement of claim?

58. There were then some further exchanges. However, the applicant did not address the order relating to setting aside the notice to produce and notice to admit, nor did she do so in relation to consolidation. She had the opportunity to do so. That she chose not to take it is as regards the notices is not surprising given that both notices could be considered premature in circumstances where the pleading was being struck out and no defence had yet been filed. There was no breach of procedural fairness in the making of the orders.

Reasons

59. The applicant’s written submissions emphasised the importance of the judicial duty to give reasons and complained that no reasons had been given. That her Honour did not provide reasons is explained by the following exchange after her Honour had clarified that, apart from costs, the matter involving the respondent had concluded:

HER HONOUR: Do you wish any further reasons on the making of the orders with respect to Mr Condon’s statement of claim? No?

PLAINTIFF: No, that’s fine, your Honour.

60. The next day, 17 February 2023, the applicant changed her mind and requested reasons in an email to the associate of the primary judge, although the email did not acknowledge that this constituted a change of position. On the afternoon of Friday 24 February the applicant sent a lengthy email of 55 numbered paragraphs to the associate which in effect took the form of submissions. The email raised much the same complaints as have been made in the application to this Court. It also said, amongst other things, that the respondent’s legal representatives had “wilfully misled the court”. The email sought that the orders made on 16 February 2023 be set aside under UCPR r 36.16(3B). The email requested a response by 3pm the following Monday 27 February 2023.

61. It was quite inappropriate for such an email to be sent without leave of the Court or the consent of the respondent. On 27 February 2023 the primary judge’s associate sent an email saying that the judge was currently on circuit presiding in a trial but would respond to the parties when she returned to Sydney. That intention was no doubt overtaken when a notice of motion was filed on 1 March 2023 seeking that the orders be set aside. That motion was heard by the judicial registrar of the Court below and dismissed on 17 March 2023. The application for leave to appeal to this Court was filed on 30 March 2023.

62. In this context the applicant has no basis for complaining about her Honour not providing reasons for making the orders that she did. The applicant gave up her entitlement to reasons at the hearing, and any subsequent possibility of reasons being provided was overtaken by the course pursued by the applicant in seeking to set aside the orders.

Argument that the orders were ultra vires

63. The applicant suggests that the primary judge did not have power to make orders 1-7, but the only particular ultra vires complaints – beyond the points addressed above – appear to relate to orders 2 and 5-7. Order 2 gave the applicant leave to replead “limited to allegations relating to the provision of advice with regards to appeal of the Local Court Judgment to the Supreme Court”. As the provision of such advice seems to lie at the heart of the applicant’s putative claim against the respondent, it is not apparent why such an order is said to be beyond power or inappropriate.

64. Orders 5-7 required that the draft further amended statement of claim, along with all affidavits and documents on which the applicant intended to rely, be served by 30 March 2023. Such orders fall within the power granted in UCPR r 2.1 to at any time “give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings”. Rule 2.3 provides that such directions may relate to the defining of issues, the service of affidavits, the filing of lists of documents and the provision of copies of documents. Given the serious nature of the allegations the applicant seeks to maintain, and where no proper basis for doing so had yet been identified, it is entirely understandable why such orders were considered appropriate in this matter (on the assumption that it was appropriate to give the applicant leave to replead at all, which is not an issue before this Court).

65. In her written submissions to this Court the applicant also suggests that the primary judge failed to give due consideration to s 58(2)(b)(vi) of the Civil Procedure Act 2005 (NSW) in making the orders, in particular by not considering “the degree of injustice that would be suffered by the applicant” as a consequence of the orders. There is no reason to conclude that her Honour did not in fact take into account ss 56-58 of the Act in making her orders, especially in the absence of reasons. In any case, it is not apparent that the applicant has suffered any injustice by virtue of the orders made.

Concerns about the conduct of Ms Odtojan and Mr Bryl

66. We have outlined above the lack of a proper basis for the serious allegations made in the ASOC. We have noted that the applicant has suggested, with no apparent proper basis, that the legal representatives of the respondent wilfully misled the District Court and otherwise breached their professional obligations (see [33] and [60] above). There are further reasons to have concerns about Ms Odtojan’s and Mr Bryl’s understanding of, and compliance with, basic ethical requirements.

Other allegations against the respondent’s legal representatives

67. The respondent read an affidavit of Mr James Berg, a partner of DLA Piper and the respondent’s solicitor on the record, sworn 30 May 2023. The point of the affidavit was to respond to and contextualise the allegations raised by Ms Odtojan and Mr Bryl against the legal representatives of the respondent. No objection was made to the affidavit or the associated exhibit.

68. What emerges from the affidavit, and the material exhibited to it, is that both Ms Odtojan and Mr Bryl have repeatedly accused the counsel and solicitors appearing for the respondent of misconduct. They have done so in written and oral submissions to the District Court, in written submissions to this Court, and in various other court documents. Mr Berg set out a long list of the various accusations in a letter sent to Ms Odtojan dated 18 May 2023, which includes the following summation:

47 As various times you, directly or through Mr Bryl, have asserted that the Legal Representatives have:

47.1 wilfully misled the Court of Appeal and District Court;

47.2 engaged in improper conduct, seemingly to mislead the Court through the making of misrepresentations to the Court;

47.3 disregarded Court rules and processes;

47.4 interfered with the administration of justice;

47.5 shown consistent intentional dishonesty in this matter; and

47.6 tampered with evidence.

69. No reasonable basis is apparent for any of these very serious allegations. The allegation about tampering with evidence relates to materials filed in this Court, and merits further explanation.

The complaint about the supplementary white folder

70. The applicant filed a document titled “Applicant’s Response to Respondent’s Response” on 29 May 2023, two days before the hearing. When asked, Mr Bryl said that was pursuant to a direction made by the Registrar. In fact, when the matter was listed for directions before the Registrar on 15 May 2023, the applicant was granted leave to file a reply of no more than 5 pages by 26 May 2023. Neither of the conditions of that grant of leave was complied with.

71. The eight page single-spaced document contains paragraphs which make fresh allegations of misconduct against legal practitioners. The supplementary white folder filed for the respondent is said to contain documents which were “misrepresented as the Plaintiff’s Exhibit documents”. Although the applicant’s Response document falls short of squarely alleging that either or both of the two named practitioners committed a crime, and states that counsel maintained that she did not file the white book and had nothing to do with it, the submission states that tampering with evidence with intent to mislead the Court is a serious indictable offence contrary to s 317 of the Crimes Act 1900 (NSW), as is an act or omission done with intent to pervert the course of justice. The implication is that a crime was committed.

72. The procedural background is this. The applicant filed a white folder which was wholly inadequate to permit the leave application to be determined. In particular, it did not include the Local Court judgment, the transcript of the hearing in the District Court or the ASOC. The respondent filed a supplementary white folder on 27 April 2023. On 26 May 2023 the applicant filed a more complete “updated” white folder.

73. The respondent’s supplementary white folder was said by the applicant to be defective in ten respects, identified in a further 3 page document in the updated white folder. The lengthiest complaints are the 4th and 5th points. The 4th point refers to a version of the statement of agreed facts in the supplementary white folder which is in different terms from that supplied to the Local Court. The version in the supplementary white folder is self-evidently an unsigned draft, including comments which appear to be from the client; that in the updated white folder is signed by the solicitors for both sides and appears to be in final form. The document says that the “said document is part of allegations of falsified documents created by Mr Ford … and Mr Glynn … in the claims made against them at Sydney District Court proceedings”.

74. It is very difficult to see how any of the differences between the draft document and that which appears to have been supplied to the Local Court could be material to the claims made by the applicant against her former solicitor and junior counsel, but it is no part of this Court’s function on the present application to address that issue. What is presently relevant is that (a) it is very difficult to see why anything could turn on this for the purposes of the present application for leave where the respondent’s senior counsel is not alleged to have had anything do to with the creation of the document in the Local Court, and (b) it is very difficult to see how this amounts to a “falsified” document, as opposed to the wrong document being inadvertently included in a folder. If there was an attempt to deceive, it was a very clumsy one, because the document included in the white folder was on its face not the document supplied to the Local Court.

75. The 5th point is that the supplementary white folder contains the judgment, signed by the Magistrate. That judgment appears to have been amended, in two respects. One is that the law firm then acting for Ms Odtojan was wrongly described on the coversheet as Odtojan Bryl Lawyers, when it should have been Glynn Lawyers. The other was that the judgment sum was stated as $45,299.75, rather than $40,597.74. Both of those amendments have been made in hand in the judgment supplied in the updated white folders.

76. Nothing whatsoever turns on these complaints about the respondent’s supplementary white folder. Save for the complaint which was made about it, that folder was superseded by the updated white folders supplied by the applicant. However, the applicant advances the complaint about the form of the judgment included in the white folder in these terms:

The Respondent has intentionally inserted the judgment front page which incorrectly records “Odtojan Bryl Lawyers” which Magistrate Freund recorded despite the Applicant’s law firm having not filed any notice of appearance and her handwritten notes on the court form records Mr T Glynn as instructing solicitor with no record of “Odtojan Bryl Lawyers”.

77. There is no basis for any allegation that there was any intentional tampering with the evidence or fabricating evidence. Again, it seems that if conduct occurs which is not to the liking of Ms Odtojan and Mr Bryl then they readily leap to making unfounded allegations of serious wrongdoing.

Bias allegation against other judicial officers

78. There was a dispute about the assessment of CCS’ legal costs after the Local Court case. An appeal by Ms Odtojan was filed in the District Court. In that Court Judge Strathdee ordered that Ms Odtojan provide security for costs in the sum of $5000. Subsequently Ms Odtojan sought to have that order set aside. That application was dismissed by Mahoney DCJ: Marie Odtojan v Credit Corp Services Pty Limited [2019] NSWDC 273. His Honour recorded at [15]-[16] that the numerous attacks on the decision of Strathdee DCJ included that her Hoour manifest “apparent/apprehended judicial bias” and the orders were made were made irregularly and in bad faith. These arguments were rejected at [41]-[44].

79. The fact that such arguments were raised and rejected does not of itself establish that they were made without a proper basis. Nevertheless, it is relevant to note the complaints as part of a course of conduct.

The appropriate way for this Court to proceed

80. What emerges from the above is that either or both of Ms Odtojan and Mr Bryl have:

1. accused the solicitor and junior counsel who acted for Ms Odtojan at the Local Court trial of a conspiracy with the opposing party and legal team to pervert the course of justice;

2. accused senior counsel who advised on appeal prospects of participation in a further conspiracy and of acting fraudulently;

3. submitted that a District Court judge who made a procedural order for a small amount of security for costs was biased and had acted in bad faith, which allegations were found to be unsubstantiated;

4. accused the District Court judge who struck out a pleading whilst granting leave to replead of actual and apprehended bias, even though the pleading was concededly defective;

5. accused those involved in the preparation of the application books of tampering with evidence and attempting to pervert the course of justice, without reasonable foundation; and

6. more broadly, repeatedly accused the legal representatives of the respondent of serious breaches of professional ethical rules, without any apparent reasonable basis.

81. During the course of the hearing in this Court, having raised concerns about there being any proper basis for various of the allegations being made by Mr Bryl and Ms Odtojan, we gave the parties leave to draw the Court’s attention to any relevant authorities as to how the Court should proceed if concerned about what had occurred. The respondent supplied references to Simpson v Hodges [2007] NSWSC 1230 at [266]-[268], Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082 at [89], Muriniti v Kalil [2022] NSWCA 109 at [105]-[107] and Day v Perisher Blue Pty Ltd (No 2) [2005] NSWCA 125. The first two decisions address what occurs when a court is of the view that an offence has been committed; they are not relevant to the position which arises if the Court formed the view that there had been serious and ongoing breaches of the rules of professional conduct. However, Muriniti v Kalil is apposite. There Brereton JA said:

[105] As has been noted, at various points of her Honour’s reasons, the primary judge made observations about various aspects of the professional conduct of Mr Muriniti and Mr Newell, and foreshadowed that the matter would be the subject of a referral to the Legal Services Commissioner. Her Honour’s formal orders included the following:

“Noted: These reasons are to be sent by the Registrar so that the matter may be referred to the Legal Services Commissioner to determine whether or not Mr Muriniti and/or Mr Newell have engaged in unsatisfactory professional conduct or professional misconduct.”

[106] It is conventional that when a judge has in mind referring a legal practitioner to a professional regulator for disciplinary investigation, the practitioner is afforded an opportunity to show cause why there should not be a referral. This practice was not followed in this case. This was not a private complaint to the Legal Services Commissioner, nor a decision to institute disciplinary proceedings, in respect of which at common law there might be no right to be heard, but a formal decision recorded in a published judgment to refer a practitioner to a regulatory authority for disciplinary investigation, which of itself has serious potential reputational consequences for a practitioner, such as to attract the principles enunciated in cases such as Mahon v Air New Zealand, Annetts v McCann and Ainsworth v Criminal Justice Commission. [footnotes omitted]

82. His Honour regarded what had occurred in that litigation as involving a denial of procedural fairness. Further, in Day v Perisher Blue Pty Ltd (No 2) an opportunity was given to the solicitors to show cause why the papers should not be referred to the Legal Services Commissioner.

83. Although during the course of the hearing Mr Bryl was squarely confronted with the possibility that this Court might find that there had been a breach of rule 32, it may be that he was under a misapprehension of the applicability of the rules of professional conduct to cases where a solicitor brings proceedings as plaintiff and acts for herself, or of the potential application to himself when acting as a McKenzie friend. It is also possible that the interests of Mr Bryl and Ms Odtojan are not wholly aligned on this issue. On balance, we have concluded that each of Mr Bryl and Ms Odtojan should be given a further opportunity to show cause why this Court should not refer this judgment and the papers in this application to the Legal Services Commissioner.

Conclusion

84. The orders of the primary judge were entered on 17 February 2023. The summons seeking leave to appeal was filed more than 28 days later, on 30 March 2023. An extension of time is thus required: UCPR, r 51.16. The delay is not extensive, no prejudice has been identified and in all the circumstances the extension should be granted. The application for leave to appeal should be dismissed with costs. In the circumstances outlined we consider it appropriate to order that the costs be payable forthwith.

85. Ms Odtojan and Mr Bryl should be provided with an opportunity to show cause why this judgment and the papers in this application should not be referred to the Legal Services Commissioner. Either or both of them may, if they wish, exercise that entitlement by filing submissions and affidavits and supporting materials within 14 days of today. If either of them seeks to be heard orally, that should be stated in the submissions. The materials should also be served on the respondent, but we do not at this stage intend to make a direction permitting him to be involved in that process, although we will review the position if and when any materials are supplied.

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Amendments

13 June 2023 -

13 June 2023 - "applicant" corrected to "respondent" in last line of [24]

14 June 2023 - references to “applicant, Mr Ford and Mr Glynn” amended to “respondent, Mr Ford and Mr Glynn”

Decision last updated: 14 June 2023