Preston v Nikolaidis

[2022] NSWSC 549

Supreme Court

New South Wales

Medium Neutral Citation:

Preston v Nikolaidis [2022] NSWSC 549

Hearing dates:

17 September 2021

Date of orders:

6 May 2022

Decision date:

06 May 2022

Jurisdiction:

Equity

Before:

Lindsay J

Decision:

Order, with ancillary orders, that the Plaintiff’s notice of motion filed on 14 May 2021 be dismissed.

Catchwords:

PRACTICE AND PROCEDURE — Inherent jurisdiction — Abuse of process — Collateral allegations of fraud made by means of a Notice of Motion in long running proceedings.

Legislation Cited:

Uniform Civil Procedure Rules 2005 NSW

Limitation Act 1969 NSW

Cases Cited:

Preston v Nikolaidis [2017] NSWSC 1527

Preston v Nikolaidis [2020] NSWSC 776

Preston v Nikolaidis [2021] NSWSC 36

Preston v Nikolaidis [2022] NSWSC 521

Preston v Nikolaidis (No 2) [2021] NSWSC 174

Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324

Category:

Procedural rulings

Parties:

First Plaintiff: John Preston
Second Plaintiff: Western Suburbs Constructions Pty Ltd (formerly Preston Erections Pty Ltd)
First Defendant: Leon Nikolaidis in his capacity as the executor of the estate of the late Mitrofanis Demetrius Nikolaidis
Second Defendant: Leon Nikolaidis trading as MD Nikolaidis & Co
Third Defendant: Michael Zwar

Representation:

Counsel:
Plaintiffs: self-represented
Defendants: TS Hale SC

Solicitors:
Plaintiffs: self-represented
Defendants: Diamond Conway Lawyers

File Number(s):

1993/00023395

Judgment

1. Before the Court is a notice of motion filed by the defendants on 25 June 2021. It seeks three types of relief:

1. First, it seeks an order for summary dismissal of a notice of motion filed by the plaintiff on 14 May 2021, said by the defendants to be an abuse of process.

2. Secondly, it seeks an order that the plaintiff be restrained from filing any further notice of motion, or other court process, relating to the subject matter of the notice of motion filed by him on 14 May 2021 without the leave of the Court.

3. Thirdly, it seeks an order (pursuant to rule 4.15 of the Uniform Civil Procedure Rules 2005 NSW) that parts of affidavits filed in the Court by the plaintiff be quarantined as scandalous, frivolous, vexatious, irrelevant or oppressive.

2. The principal proceedings commenced life in 1993 as a dispute between a firm of solicitors (for present purposes, as a matter of convenience, identified with the defendants) and a client (the plaintiff) about fees and disbursements charged by the firm in the sum of $95,749.40.

3. On 17 November 2017, for reasons published at [2017] NSWSC 1527, Slattery J declared that the defendants’ entitlement to costs (the subject of bills of costs referred to in orders made by the Court in 2014 in related proceedings) had been extinguished by the operation of the Limitation Act 1969 NSW, sections 14 and 63.

4. That declaration largely determined the original dispute between the parties, but it left open the question whether the defendants were entitled to maintain a lien over files they held relating to the plaintiff’s affairs.

5. On 19 June 2020 Williams J, in a judgment reported at [2020] NSWSC 776, dismissed a notice of motion filed by the plaintiff seeking access to documents produced to the Court by the Council of the Law Society of New South Wales on subpoena.

6. On 2 February 2001 her Honour produced a second judgment, reported at [2021] NSWSC 36, in which she refused the plaintiff leave to file a statement of claim, the effect of which would have been to re-agitate questions earlier determined.

7. On 2 May 2022 Slattery J published a judgment, at [2022] NSWSC 521, in which his Honour determined that the plaintiff had not (as the defendants contended) elected to abandon his claim for the return of files the subject of the defendants’ claim of a lien.

8. His Honour listed the principal proceedings before himself on 8 June 2022 for directions designed to isolate and prepare remaining issues for hearing.

9. His Honour’s judgment goes some way to rendering otiose the notice of motion filed by the plaintiff on 14 May 2021, which is the subject of the defendants’ application for summary dismissal.

10. The plaintiff’s notice of motion contains several different types of claims for relief including, principally, claims for:

1. Orders for the defendants to pay large amounts of costs to the plaintiff and to the NSW Government.

2. Orders (including ancillary orders) for the defendants to return files relating to the plaintiff’s affairs over which the defendants have maintained a lien.

3. Damages.

4. Orders apparently designed to subject the defendants, and lawyers who have appeared for them, to disciplinary or criminal proceedings.

11. Underlying the plaintiff’s notice of motion are persistent allegations by him that the defendants fabricated their claims for fees and disbursements, and otherwise engaged in fraudulent conduct, aided by lawyers who from time to time have appeared for them and judges who (he alleges) have failed to provide him with a proper remedy.

12. At the time the defendants’ notice of motion was heard (on 17 September 2021) Slattery J’s latest judgment (since published on 2 May 2022) was reserved, and a concern expressed by the plaintiff was that an order for summary dismissal of his notice of motion would interfere with the conduct of the proceedings before Slattery J. That concern, if it ever had any foundation, has evaporated in light of his Honour’s latest judgment.

13. In my opinion, the plaintiff’s notice of motion should nevertheless be summarily dismissed, but without prejudice to such, if any, entitlements the plaintiff might have to claim relief in the proceedings now being case managed by Slattery J. I am not to be taken as suggesting that the plaintiff has entitlements of some kind or other, only that dismissal of his motion is not intended to constitute a determination of substantive rights.

14. I do not intend to constrain Slattery J’s due consideration of what remains to be determined in the principal proceedings. The plaintiff’s notice of motion seeks orders which appear designed, not to facilitate a final determination of any outstanding disputes about the original dispute, but to advance collateral allegations of fraud or the like. In my opinion, it is an abuse of the processes of the Court.

15. The history of these proceedings, including the plaintiff’s persistence in making repetitive, collateral allegations of fraud or misconduct, persuades me that, for the better management of the processes of the Court, an order should be made (in exercise of the jurisdiction recognised in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324; (2011) 81 NSWLR 771) that, subject to further order, the plaintiff be restrained from filing any further notice of motion or other court process relating to the subject matter of the plaintiff’s notice of motion filed on 14 May 2021 without the leave of a judge.

16. Such an order is designed, not to deny the plaintiff access to the Court should he have a proper claim, but to facilitate an orderly conduct of any claim for relief he may legitimately seek to pursue.

17. Although I am sympathetic to the defendants’ complaint that affidavits filed by the plaintiff have included material that could properly be described as “scandalous” (in the sense of making indiscriminate allegations of wrongdoing against a range of people) I very much doubt the utility of making orders under UCPR rule 4.15 pending the final determination of the principal proceedings. In my opinion, the better course, which I propose to take, is to make an order, subject to further order, that no person other than a party to the principal proceedings (or a lawyer retained by such a party) have access to the Court’s file without the leave of a judge.

18. Accordingly, I make the following orders:

1. ORDER that the plaintiff’s notice of motion filed on 14 May 2021 be summarily dismissed without prejudice to such, if any, entitlements he may have to make other applications for relief to like effect.

2. ORDER, subject to further order, that the plaintiff be restrained from filing any further notice of motion, or any other court process, relating to the subject matter of the plaintiff’s notice of motion filed on 14 May 2021 without the leave of a judge.

3. ORDER, subject to further order, that no person other than a party to these proceedings (or a lawyer retained by a party to these proceedings) be granted access to the Court’s file without the leave of a judge.

4. ORDER that the defendants’ notice of motion filed on 25 June 2021 otherwise be dismissed.

5. ORDER that the plaintiff pay the defendants’ costs of their notice of motion filed on 25 June 2021 assessed on the indemnity basis.

19. In my opinion, the plaintiff should pay the defendants’ costs because they have been, in substance, successful on their motion and the usual rule that “costs follow the event” is appropriate to the occasion. Dismissal of the plaintiff’s motion as an abuse of the processes of the Court warrants an order that the costs of the defendants payable by him be assessed on the indemnity basis.

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Decision last updated: 06 May 2022