Stankovic v Magee t/as Armstrong Legal

[2014] NSWSC 448

Supreme Court

New South Wales

Medium Neutral Citation:

Stankovic v Magee t/as Armstrong Legal [2014] NSWSC 448

Hearing dates:

15 April 2014

Decision date:

15 April 2014

Before:

Harrison J

Decision:

1. Decline to make the order sought

2. Make no order as to costs

Catchwords:

PROCEDURE - professional negligence - futile application for expression by court of an opinion upon the meaning of "dismiss" - application dismissed

Category:

Procedural and other rulings

Parties:

Milovan Stankovic (Applicant)
Peter Michael Magee t/as Armstrong Legal (Respondent)

Representation:

Solicitors:
Applicant self represented
Armstrong Legal (Respondent)

File Number(s):

2013/229845

Publication restriction:

Nil

EX TEMPORE Judgment

1. HIS HONOUR: These proceedings were commenced by statement of claim filed on 29 August 2013. Michael Stankovic sues one of the partners of Armstrong Legal, a firm of solicitors practising in Sydney. The claim purports to be one for professional negligence and seeks, among other things, damages of $35 million, presumably arising out of the facts pleaded in the six paragraphs that make up the document.

1. Doing the best I can, it would appear that Mr Stankovic has concerns about the manner in which proceedings between him and his former wife heard by Cohen J in the Family Court were handled, including things allegedly done contrary to his instructions or not done despite instructions.

1. The statement of claim, which I observe does not appear to have been prepared with the benefit of legal advice, fails in significant respects to conform to the rules dealing with pleadings and otherwise fails conspicuously to disclose any cause of action known to the law. I am unaware whether or not any application directed toward the inadequacies of the pleading has been made or foreshadowed having regard to the matters to which I have just referred.

1. The proceedings come before me today by motion filed on 9 April 2014 by Mr Stankovic in which he seeks an order in the following terms:

"(1) That the Court issue a formal statement to clarify a specific point of law as to the definition and application of the word 'dismiss' when judge or magistrate orders the case is dismissed."

1. Mr Stankovic informs me that in support of his motion he reads and relies upon his affidavit apparently sworn on 28 March 2014 and filed in this Court on 9 April 2014. Omitting formal parts and Mr Stankovic's identification of himself as the deponent, the affidavit contains only one substantive paragraph, which for present purposes it is convenient to set out in full:

"(3) I truly believe that when a case in an Australian court is dismissed and there is a sealed order saying that the case is dismissed then, 'The cause is removed out of court without any further hearing' (Bouvier's Law Dictionary). This is consistent with the Oxford English Dictionary, Second Edition, Volume (IV), pages 795-6 saying dismiss means, 'To send away; disperse; dissolve; disband; remove from office; discharge; discard; expel; reject; lay aside; divest oneself of; get rid of; to put out of mind; leave out of consideration; cease to entertain; to have done with; bring to an end; law; to relieve or free oneself from (a legal burden); to deprive or exclude oneself from a legal advantage; to send out of court; refuse further hearing to; reject (a claim or action)".

1. Mr Stankovic does not rely on any additional evidence or material in support of the application notwithstanding the fact that the Court file contains several other affidavits filed on earlier occasions.

1. Mr Stankovic contends that, in the current social and financial circumstances in which he finds himself, which include ill-health and the unfortunate fact that he is living on the street, it is essential or at least beneficial for his purposes that the order sought in the notice of motion be made.

1. It is said without particular elucidation that there is a practical benefit to Mr Stankovic for the court to issue what he has described as "a formal statement to clarify a specific point of law". The context in which that application is made is, as I have indicated, not entirely clear. For example, there is no evidence before me about whether or not anybody, and if so who, might have used the term in a way that either adversely or in any way at all affected any rights to which Mr Stankovic claims otherwise to have been entitled.

1. It is therefore difficult in the circumstances to understand whether or not there is any relevant context within which it is possible to consider the application having regard to the nature of the claim energised in the statement of claim. It seems to me that this Court ought not to entertain applications made effectively at large or in isolation on the one hand and without an appropriate legal framework capable of giving them some substantial or meaningful effect on the other hand.

1. Doing the best I can it seems to me that this application is futile and can best be described as ill-conceived. I decline to make the order sought.

1. In the circumstances of this case it is also appropriate in my opinion to make no order as to costs.

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Decision last updated: 16 April 2014