Odtojan v Ford

[2023] NSWCA 277

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Odtojan v Ford [2023] NSWCA 277

Hearing dates:

11 October 2023

Decision date:

21 November 2023

Before:

White JA at [1];
Basten AJA at [24]

Decision:

(1) Summons for leave to appeal dismissed with costs.

(2) Within 14 days Ms Odtojan and Mr Bryl show cause why this judgment and the papers in this Court not be referred to the Legal Services Commissioner.

Catchwords:

APPEALS – Leave to appeal – Leave to appeal from interlocutory decision striking out applicant’s Amended Statement of Claim with limited liberty to replead – Where Amended Statement of Claim asserted fraud and conspiracy on part of respondent – Where no basis for allegations of fraud and conspiracy – Leave to appeal refused

Legislation Cited:

Limitation Act 1969 (NSW)

Cases Cited:

Odtojan v Glynn [2023] NSWCA 276

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Category:

Principal judgment

Parties:

Marie Jossane Odtojan (Applicant)
Nicholas George Ford (Respondent)

Representation:

Counsel:
Applicant appeared in person with Mr A Bryl
Mr Lloyd (Respondent)

Solicitors:
Applicant in person with Mr A Bryl
Colin Biggers Paisley (Respondent)

File Number(s):

2023/131242

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

28 March 2023

Before:

Norton SC DCJ

File Number(s):

2022/273977

Judgment

1. WHITE JA: This is an application for leave to appeal from a judgment of the District Court (Norton SC DCJ) in which the primary judge struck out the applicant’s Statement of Claim with only limited liberty to replead. Her Honour also required that the applicant serve a paginated and indexed bundle of documents on which she relies with regard to her proposed further amended statement claim.

2. The application for leave to appeal raises the same issues as were raised in the application for leave to appeal from orders made in favour of a Mr Thomas Patrick Glynn. Judgment in the Glynn matter is being delivered at the same time as these reasons (Odtojan v Glynn [2023] NSWCA 276).

3. Mr Glynn is a solicitor. Mr Ford is a barrister. They were retained by Ms Odtojan to act for her in proceedings in the Local Court brought by Credit Corp Services Pty Ltd (“CCS”) for a debt allegedly owed by Ms Odtojan arising from credit provided by the St George Bank to Ms Odtojan through the use of a credit card supplied by that bank. CCS was the assignee of the alleged debt.

4. Ms Odtojan was unsuccessful in her defence of the claim and a substantial order for costs was made against her. Much later, but (so the primary judge held) within the limitation period, she brought proceedings against Mr Ford and Mr Glynn and also Mr Condon SC alleging that the judgments against her in the Local Court were the result of fraud on the part of Mr Ford and Mr Glynn, conspiracy between them and CCS or its lawyers and, in some respects, acts of “intentional negligence”.

5. In proceedings brought against Mr Condon, Ms Odtojan alleged that he became a party to the conspiracy in giving advice in relation to her prospects of appeal.

6. The primary judge gave Ms Odtojan leave to replead her allegations against Mr Ford only so far as they related to the provision of advice as to the merits of an appeal. It follows that she does not have leave to replead allegations made against him in relation to the conduct of the proceedings in the Local Court. As in the case of Mr Glynn, that is tantamount to the summary dismissal of her claims against Mr Ford in relation to his conduct of the proceedings in the Local Court.

7. The primary judge held:

“[41] Ms Odtojan, in these proceedings, is seeking to re-examine Magistrate Freund’s finding that there was a contract and Ms Odtojan had attended at the bank and signed a declaration to the effect that she had been made aware of the conditions of the loan and accepted them. Under the guise of allegations as to the conduct of Mr Glynn and Mr Ford she is seeking to relitigate her claim that the signature on the document is a fraud and that Her Honour had not accepted arguments based on the application of the relevant Legislation.

[42] The allegations of conspiracy between the lawyers for the plaintiff and lawyers for Ms Odtojan are fresh claims. No evidence is supplied to support the allegations that there were any such conspiracies on foot at the time of he hearing in the local court and those alleged fellow conspirators have not been made parties to any proceeding.

[43] It is often appropriate to grant leave to a plaintiff to replead if a Statement of Claim is struck out. Ms Odtojan has been given the opportunity to replead these allegations and the Amended Statement of claim suffers from the same lack of clarity. The allegations are serious ones and Ms Odtojan was present in court during the proceedings in the local court. The matters she seeks to raise in the present pleadings are the same as those considered by the Magistrate. Once the offensive parts of the Amended Statement of claim are removed there is very little left other than matters which have been decided in the court below.

[44] I find it would be manifestly unfair to the defendant's [sic] that the same issues be relitigated and to permit these allegations to go forward would bring the administration of justice into disrepute. Ms Odtojan was supplied with a draft summons to commence an appeal and chose not to proceed. If necessary the summons could have been amended to add additional matters.”

8. The primary judge is correct in her observations at [42] that no evidence was supplied to support the allegations that there were any conspiracies on foot at the time of the hearing in the Local Court between the lawyers for CCS and the lawyers for Ms Odtojan.

9. I do not accept that the matters that Ms Odtojan sought to raise in the District Court proceedings were the same as those considered by Magistrate Freund in the Local Court (para [43]). It is true that in the District Court proceedings against Mr Ford, Ms Odtojan contends that she was not liable to CCS because there was no credit agreement between her and the St George Bank, whereas the magistrate held otherwise. However, in the District Court proceeding against Mr Ford, Ms Odtojan contends that this was because the alleged “central issue” between her and CCS was not raised by Mr Ford, and therefore it was not addressed by the magistrate. In respect of par [44], because the particular issues Ms Odtojan seeks to raise against Mr Ford were not decided in the Local Court, it would not be manifestly unfair to him for them to be raised in the District Court proceeding, if there were a proper basis for the allegations. If there were a proper basis for the allegations, the raising of them would not bring the administration of justice into disrepute.

10. Nor should the pleading be struck out without liberty to replead on the ground that Ms Odtojan was present in court during the hearing in the Local Court. She alleges that she was required to sit at the back of the court where it was hard to hear and did not discover the matters on the basis of which she alleges fraudulent conduct on the part of the lawyers until she reviewed the court files after judgment had been given. That raises a triable issue as to whether the facts alleged to constitute fraud were newly discovered (Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538).

11. However, apart from the allegations of collusion with the lawyers for CCS, the claim based on alleged fraud and deliberate negligence, which is tantamount to fraud, could not be brought without impeaching the judgments of the Local Court. Unless the judgments of the Local Court can be treated as a nullity, they cannot be impeached in collateral proceedings (see Odtojan v Glynn at [79]). It is only in the case of a judgment obtained by collusion of the parties together practising a fraud on the court that it is arguable that the judgment can be treated as a nullity in collateral proceedings (Glynn at [80]-[93]).

12. It is clear beyond argument from the pleadings, the transcript, and the judgments in the Local Court that there was no collusion between CCS or its lawyers and the lawyers for Ms Odtojan in the conduct of those proceedings. The primary judge was therefore right to limit the leave to replead in the way her Honour did.

13. Two matters particular to Mr Ford warrant emphasis. The first is referred to at par [39] of the reasons in Glynn, where in cross examining Mr Carpenter, Mr Ford asked the question:

“Q. In fact, the defendant’s position is that the first time she received the contract documentation from the plaintiff was 12 January 2015. You’re aware that that is her assertion?

A. Yes that rings true, yes.”

14. The second is a statement made by Mr Ford on 19 July 2016 when he submitted that Ms Odtojan had not been cross-examined on evidence that she gave that she did not receive the contract documentation until after the proceedings were commenced and then on 12 January 2015 (after proceedings had been commenced).

15. Ms Odtojan contends that these were fraudulent statements. She admitted that she received the documents on 12 January 2015 that CCS contended were documents that related to the contract it alleged had been formed, but she denied that they were “contract documents”. In his submission on costs on 29 August 2016 (that is, after the magistrate had found that a contract had been entered into between Ms Odtojan and the St George Bank) in part relying upon the documents on which CCS relied as contract documentation, Mr Ford said:

“The offer of compromise of 17 December 2014 was served on my client, and on my case, Ms Odtojan did not receive the contract documentation until 12 January 2015.”

16. Ms Odtojan alleges that because Mr Ford referred to the documents which CCS claimed to be contract documents, and which the learned magistrate found to be contract documents, as contract documents, that was evidence of fraud.

17. That allegation is self-evidently baseless and improper.

18. As in the case of Glynn, in this application Ms Odtojan contended she was denied procedural fairness in the Local Court and that there was a breach of the “bias rule” (proposed notice of appeal, ground 1(b)). Although it does not appear from the proposed ground of appeal whether the bias alleged was actual or apprehended bias, it appears from her summary of argument that the bias alleged is actual bias.

19. That is a serious allegation that should not be made without proper ground: Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]-[74]. Mr Bryl, who appeared for Ms Odtojan with leave as her McKenzie friend, pointed to no basis for the allegation of actual (or apprehended) bias.

20. In relation to the denial of procedural fairness, Ms Odtojan relied upon the evidence that at the hearing before the primary judge, the primary judge had not, at that time, read Ms Odtojan’s written submissions. They had been filed only shortly before the commencement of the hearing. The primary judge reserved her judgment. It is clear from her Honour’s reasons that her Honour had read and considered the written submissions of the parties before she delivered judgment. Thus, at par [37] of her judgment, she referred to Ms Odtojan’s submission that the claim had been brought within the six year limitation period and her further submission that that as her claim was based on fraud, time did not run under the Limitation Act 1969 (NSW) until the time the fraud was discovered. The primary judge accepted the submission.

21. The reasons in Glynn apply mutatis mutandis to this application for leave to appeal, and are to be read with these reasons. For the reasons in Glynn as supplemented by these reasons, the summons for leave to appeal should be dismissed with costs.

22. Also, for the reasons in Glynn and these reasons, Ms Odtojan and Mr Bryl should be given 14 days to show cause in writing why the judgment of this Court and the papers should not be referred to the Legal Services Commissioner.

23. I propose the following orders:

1. Summons for leave to appeal dismissed with costs.

2. Within 14 days Ms Odtojan and Mr Bryl show cause why this judgment and the papers in this Court not be referred to the Legal Services Commissioner.

24. BASTEN AJA: I agree with the orders proposed by White JA, for the reasons he has given.

**********

Decision last updated: 21 November 2023