Valassis v Jones

[2001] NSWSC 911

CITATION:	Valassis v Jones [2001] NSWSC 911
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 11306/01
HEARING DATE(S):	8 October 2001 11 October 2001
JUDGMENT DATE:	19 October 2001
PARTIES :	Dennis Valassis Ian Robert Durston Jones
JUDGMENT OF:	Sperling J at 1

COUNSEL :	Plaintiff in person Defendant in person
SOLICITORS:	Plaintiff in person Gells Lawyers for the Defendant
CATCHWORDS:	Whether leave should be given to continue proceedings notwithstanding an order under Supreme Court Act 1970, s84(2) - No question of principle involved
LEGISLATION CITED:	Supreme Court Act 1970, s84
DECISION:	(1) The notice of motion filed on 10 July 2001 is dismissed; (2) The plaintiff is ordered to pay the defendant's costs of the motion on an indemnity basis.

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SPERLING J

Friday 19 October 2001

11306/01 Valassis v Jones Judgment

: On 22 November 1995, a Master dismissed an appeal by Mr Valassis against a taxation of costs as between himself and his former solicitors, M D Nikolaidis & Co (hereafter “the solicitors”). The costs related to earlier proceedings in which the solicitors had represented Mr Valassis.

2 On 29 March 1996, the Court of Appeal refused leave to appeal. On 3 May 1996, the Court of Appeal refused a motion to review the refusal of leave.

3 A further application to the Court of Appeal was dismissed by Mason P on 7 September 1998.

4 On 7 October 1999, a further notice of motion relating to the taxation of costs, filed in this division of the court, was dismissed.

5 A further notice of motion for reconsideration was filed in the Court of Appeal on 19 October 1999 and another in the Local Court on 25 October 1999. Both related to the costs which were the subject of earlier taxation and/or to subsequent applications in relation thereto.

6 On 12 May 2000, Simpson J delivered a reserved judgment in an application by the solicitors. She ordered, pursuant to s84(2) of the Supreme Court Act, that Mr Valassis shall not, without leave, institute any proceedings against the solicitors, and shall not continue any proceedings against the solicitors without leave.

7 A feature of the course of litigation identified by Mason P and Simpson J was Mr Valassis' persistence in seeking to re-litigate issues previously determined.

8 On 4 May 2000, shortly before Simpson J delivered her judgment, Mr Valassis commenced the present proceedings. The defendant is Mr I R D Jones. He is a solicitor, previously employed by the solicitors. He acted on their behalf as an employee in relation to the recovery of the taxed costs to which I have referred and in some, at least, of the various applications brought by Mr Valassis against the solicitors in relation to those costs.

9 On 10 July 2000, Young J, sitting in this division of the court, refused an application for leave to appeal from Simpson J’s decision and also refused other applications by Mr Valassis relating to the costs to which I have referred and relating to the various applications subsequently made. Mr Jones was a defendant in those proceedings. Young J ordered Mr Valassis to pay the defendants’ costs of the proceedings before him.

10 Mr Jones’ party and party costs against Mr Valassis were claimed in a sum of $6565.89. On assessment, that was reduced by $651.60. Mr Valassis sought a review. The review panel had not given its decision at the time of the hearing before me.

11 By his amended summons in the present proceedings, filed on 10 May 2001, Mr Valassis asserts, first, that Mr Jones was at fault in the way he conducted himself in relation to action on the original assessment of costs and in relation to the subsequent applications with, it is alleged, damage to Mr Valassis, in having to attend court, in having to prepare and lodge documents and in suffering shock. Mr Valassis claims compensation in the sum of $50,000.

12 Secondly, it is claimed that Mr Jones, by reason of his alleged acts and omissions, is responsible for Mr Valassis having incurred the costs of the various applications to which I have referred. Impliedly he claims indemnity from Mr Jones.

13 Thirdly, a stay is sought in relation to the assessment of costs in favour of Mr Jones arising out of the proceedings before Young J.

14 By notice of motion filed on 10 July 2001, Mr Valassis seeks the following orders

1. The Plaintiff to have leave to continue the Amended Summons, File No. 11306 of 2001 lodged to the court on 10th May with return date 28th May, 2001.
2. The Defendant’s Application for Assessment of Party/Party Costs, No. 92270 of 2000, Ian Jones, Applicant, Dennis Valassis, Respondent, to be stayed until these proceedings are finalised.
3. Such further or other orders as the court sees fit.

15 The notice of motion is supported by an affidavit sworn by Mr Valassis on 10 July 2001. Annexed to the affidavit is an earlier affidavit, sworn by Mr Valassis on 22 May 2001, in which Mr Valassis repeats and asserts on oath the matters alleged in the amended summons.

16 In a summary of argument, also annexed to the affidavit of 10 July 2001, Mr Valassis summarises his complaints against the solicitors concerning their conduct, as his solicitors in earlier proceedings dating back to 1983. He also refers to the taxation of costs in relation to those proceedings, being the taxation to which I have referred. Then follows a restatement of the matters asserted against Mr Jones in the amended summons and in the affidavit of 22 May 2001.

17 The first prayer in Mr Valassis’ notice of motion proceeds on an assumption, made for the purpose of the application, that leave is necessary to enable Mr Valassis to prosecute the proceedings against Mr Jones, notwithstanding that Simpson J’s order relates, in terms, to proceedings against the solicitors as distinct from proceedings against an employee such as Mr Jones. I record that Mr Valassis does not agree with that assumption. I will accept the assumption as being correct for the purpose of the application, as he requests me to do.

18 The gist of Mr Jones’ opposition is that the matters now sought to be litigated against him have previously been litigated unsuccessfully in other proceedings.

19 I have examined the process which is on the court file in the proceedings before Young J and I have read his judgment of 10 July 2000. It is apparent that the substance of the complaint against Mr Jones in those proceedings J was that Mr Jones was responsible in law for allegedly wrongful conduct as a solicitor in respects which had previously and unsuccessfully been the subject of complaint against the solicitors in earlier applications.

20 In some respects, Mr Valassis is now attempting to re-litigate against Mr Jones matters alleged against him in the proceedings before Young J. Not all of the matters previously alleged against the solicitors in earlier applications and now pleaded against Mr Jones in the present proceedings were pleaded against him in the proceedings before Young J, but there was the opportunity to do so. In view of the unsuccessful outcome of earlier applications against the solicitors, it is safe to assume that any such additional averments against Mr Jones would have been equally unsuccessful.

21 In these circumstances, I refuse leave to continue the present proceedings, on the assumption that leave is required.

22 No ground has been established to stay proceedings on the assessment of costs. That prayer is also refused.

23 The present application by Mr Valassis is without merit. He should pay Mr Jones’ costs on an indemnity basis.

24 On 17 July 2001, Mr Jones wrote to Mr Valassis, giving notice of his intention to request a variation of the order of Simpson J, by extending the order to cover proceedings against any present or past partner or employee of the firm M D Nikolaidis & Co. On the hearing of Mr Valassis’ notice of motion, Mr Jones moved for that order.

25 The curtailment of access to the courts is a serious matter. I do not think the court should entertain such an application otherwise than by notice in a formal and fully articulated manner. That would be by summons, supported by affidavit setting out the facts relied upon if Mr Jones wishes to pursue that remedy.

26 I make the following orders:

(1) The notice of motion filed on 10 July 2001 is dismissed.

(2) The plaintiff is ordered to pay the defendant’s costs of the motion on an indemnity basis.

-oOo-

Last Modified: 10/22/2001