Odtojan v Glynn t/as Glynns Lawyers

The applicant, Ms Odtojan, sought leave to appeal an interlocutory decision of the primary judge that struck out her Amended Statement of Claim, with limited liberty to replead. The Amended Statement of Claim asserted allegations of fraud and conspiracy against the respondent, Glynn t/as Glynns Lawyers. The appeal was heard by White JA and Basten AJA.

The central legal issues before the Court of Appeal were whether the primary judge erred in striking out the Amended Statement of Claim, and specifically, whether the applicant should have been permitted to allege fraud in the conduct of earlier Local Court proceedings. This involved considering whether such allegations constituted a collateral attack on a standing judgment, and whether the position differed where the standing judgment was allegedly procured by fraudulent collusion rather than fraud simpliciter.

The Court of Appeal found that there was no basis for the allegations of fraud and conspiracy. The Court reasoned that the applicant was seeking to impeach the standing judgment of the Local Court by alleging fraud in its procurement. This was considered a collateral attack, which is impermissible. The Court distinguished between fraud simpliciter and fraudulent collusion, but ultimately concluded that the applicant had not demonstrated any arguable error in the primary judge's decision to strike out the claim.

Consequently, the Summons for leave to appeal was dismissed with costs. Furthermore, Ms Odtojan and Mr Bryl were ordered to show cause within 14 days why the judgment and the papers in this Court should not be referred to the Legal Services Commissioner.