Odtojan v Condon (No 2)

THE COURT: On 9 June 2023 the Court dismissed Ms Odtojan’s application for leave to appeal from orders of the District Court which struck out her pleading whilst granting her leave to replead: Odtojan v Condon [2023] NSWCA 129. The amended statement of claim had alleged a conspiracy to pervert the course of justice on the part of the respondent, a senior counsel. The Court also made this order:

Ms Marie Odtojan was the plaintiff in the District Court and the applicant for leave to appeal. Mr Artem Bryl is her husband. Both are legal practitioners. Ms Odtojan appeared for herself in the District Court, and signed the written submissions in this Court in support of her application for leave. Mr Bryl conducted the oral submissions in this Court, and confirmed that he accepted responsibility for the written submissions.

Paragraphs 80-85 of the Court’s earlier judgment explained the basis for order 3:

Slightly after the 14 days permitted, an affidavit of Ms Odtojan of 15 pages excluding annexures, and submissions of 12 single-spaced pages signed by both Ms Odtojan and Mr Bryl, were filed on 27 June 2023. We have had regard to both documents, notwithstanding the minor breach of the timetable.

There is nothing in the submissions or affidavit to suggest that Ms Odtojan or Mr Bryl have obtained the advice of any other legal practitioner.

The submissions do not contain any statement that that they seek to be heard orally. Accordingly, we are dealing with the issue on the papers.

Much of the contents of the affidavit are repeated in the submissions. In large measure both documents are directed to points about what did and did not occur at the hearing in the District Court and in this Court, and the merits of this Court’s determination of the leave application. Nothing useful is served by summarising those aspects of the submissions, which travel well beyond the direction to show cause why the judgment and papers should not be referred to the Legal Services Commissioner. Many of the allegations discussed in the earlier reasons of this Court are repeated. That repetition is irrelevant to the only issue remaining before the Court, being the referral issue, save to the extent that the fact of repetition militates in favour of the referral now occurring.

What follows in these reasons is directed to the minority of the submissions which directly bear upon whether the referral should occur.

We do not accept the correctness of paragraph 10(m), which is as follows:

As recorded in [32]-[33] of our earlier reasons, the written submissions in the District Court filed on behalf of Ms Odtojan were critical of a submission put against her, namely, that “Ms Odtojan, as a solicitor, has engaged in conduct unbecoming of a solicitor by abusing ‘absolute’ privilege”. Ms Odtojan’s submissions in response said that to make “such unfounded allegations is a breach of his duties and misleads the court”. The reference to “unfounded allegations” is to be understood as extending to r 32 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 which is headed “Unfounded allegations” and prohibits allegations against other Australian legal practitioners or unsatisfactory professional conduct or professional misconduct unless made bona fide and with a proper basis.

The unfounded allegation of conspiracy was central to the hearing before Norton DCJ. It was the principal subject of Ms Odtojan’s submissions and the judge’s questions at transcript pp 23-35 of the hearing on 16 February 2023. After ascertaining what the conspiracy was said to be, her Honour said at transcript p 26:

There was the following exchange at transcript p 27:

The exchanges concerning the allegations of conspiracy and what was not pleaded continued over the next few pages, when her Honour said at transcript p 32:

It is, thus, incorrect to submit that the unfounded allegations regarding Ms Odtojan’s claims in conspiracy were not matters raised and addressed in the District Court.

It would and should have been clear to those involved in the hearing in the District Court that Ms Odtojan and Mr Bryl, as legal practitioners, were under heightened obligations when invoking legal process. The written submissions in the District Court on that topic are referred to at [11] above. Further, at the outset of his submissions to that Court, the first thing said by senior counsel for Mr Condon was:

At the outset of Ms Odtojan’s submissions, immediately after she referred to an allegation of gross dishonesty, her Honour said:

However, the written submissions are correct insofar as they state that the ethical obligations of legal practitioners were much more directly raised in this Court. Those obligations were not only raised by each member of this Court in the course of the hearing, as some parts of the submissions and affidavit may tend to suggest. They had been raised in correspondence sent to Ms Odtojan on more than one occasion by the solicitors for the respondent, which correspondence was before this Court (see, for example, the letter of 18 May 2023 quoted at [68] of our earlier reasons). Moreover, as noted at [67] of our judgment, an affidavit from the solicitor on the record for the respondent, Mr Berg, was read at the leave hearing without objection. In that affidavit Mr Berg said that “[t]he applicant, either directly or through Mr Bryl, has made numerous allegations of misconduct by me, Mr McInerney SC and the respondent’s legal team generally”. He then said that “[n]otwithstanding my letter of 18 May 2023 and the fact the serious allegations made by or on behalf of the applicant are without factual or evidentiary foundation, the applicant continues to make such allegations as is evidenced in the Reply”.

This paragraph states:

That is incorrect. There was a final hearing of Ms Odtojan’s application for leave to appeal from an interlocutory decision striking out her pleading and granting her leave to replead. There has not been a final hearing of any of the allegations of dishonesty or fraud or conspiracy made in Ms Odtojan’s struck-out pleading, still less has there been any determination of those issues, either in the District Court or in this Court. We do not agree that there has been any want of due process.

More generally, other parts of the affidavit and the submissions suggest that the Court “made pre-judgments” in relation to the concerns raised about the conduct of Ms Odtojan and Mr Bryl. The basis of the concerns outlined in the earlier reasons were set out in that judgment, where the issue of the propriety of making serious allegations without proper foundation had squarely been raised in the course of the hearing of the leave application, having been raised earlier by the respondent’s solicitor. In any case, the point of order 3 was to give the two practitioners an opportunity to provide reasons why a referral should not be made.

Paragraph 14 states:

There is much in that submission which is incorrect. First of all, Ms Odtojan has not been “threatened” in any sense other than being given notice of a right to be heard against a contemplated course of action. And the potential referral relates not to the exercise of her legal rights but the manner in which she and Mr Bryl have conducted themselves. The same point applies to paragraph 14(e).

As to paragraph 14(b), Ms Odtojan and Mr Bryl continue to be under the impression that the Australian Solicitors’ Conduct Rules do not apply to them. In the case of Ms Odtojan, that is because she is a self-represented litigant acting for herself, rather than acting for a client. In the case of Mr Bryl, that is because his is acting as a McKenzie friend. That belief is incorrect, for the reasons explained in [32]-[35] of our earlier judgment, which included the following:

Rules 5 and 32 were reproduced in the earlier reasons. The words in r 5 “in the course of legal practice or otherwise” are unambiguous. The rule is not confined to cases where the solicitor is acting for a client. The prohibition in r 32 likewise is not restricted to cases where a solicitor is acting for a client.

The earlier reasons for judgment said at [35]:

Significantly for present purposes, it is clear from the submissions signed by Ms Odtojan and Mr Bryl that each continues to contend that neither rule applies to him or her, in connection with Ms Odtojan’s own litigation.

The submissions state at paragraphs 28-30 that:

No legal practitioner ought to be under any misapprehension about the application of these rules. However, even after what was said in this Court’s earlier reasons for judgment, Ms Odtojan and Mr Bryl continue to maintain that the rules were inapplicable to them.

We reiterate that a solicitor who appears for herself is bound by rules 5 and 32. A solicitor who appears as a McKenzie friend is bound by rules 5 and 32. Those rules apply to all of the conduct of solicitors, irrespective of whether they are acting for a client or acting for themselves or acting as a McKenzie friend. The submissions which continue to be advanced by Ms Odtojan and Mr Bryl that they are not so bound, and that their being held to those professional rules is somehow wrong or unjust, is a matter of serious concern.

As for the point raised at paragraph 14(c) – along with a similar point made at paragraph 43 of the submissions – the issue relating to the manner in which Ms Odtojan and Mr Bryl had made allegations was one which had been raised prior to the hearing, as has already been noted. Moreover, this Court exercises a supervisory jurisdiction over legal practitioners, and its role extends in appropriate case to referring legal practitioners to the regulators of the profession.

Paragraph 14(d) repeats serious allegations without proper foundation that are in any event irrelevant to the referral issue.

Paragraphs 41-42 and 44-46 of the submissions also raise matters which should be addressed. Paragraphs 41 and 42 state that:

The only issue for the Legal Services Commissioner is whether any steps should be taken in light of the conduct of Ms Odtojan and Mr Bryl. The Legal Services Commissioner will not deal with the serious allegations made against Mr Condon, and there could be no suggestion that the Legal Services Commissioner is “placed higher” than the courts. Ms Odtojan does not have an unqualified entitlement to a final hearing merely because she makes serious allegations. Before there can be a final hearing, the defendant is entitled to a properly pleaded and particularised case. This has not hitherto occurred.

Paragraphs 44 and 45 state:

The meaning of the first paragraph is not apparent. As for the second paragraph, the transcript indicates that Mr Bryl was not “constantly” interrupted, and was in fact permitted to address the Court for an extended period, as set out in the earlier reasons at [4]. Beyond that, the criticism made is not relevant to the issue at hand.

The concluding submission is paragraph 55:

Ms Odtojan was given leave to replead, and extended time within which to do so. So far as we are aware, that has not occurred. Nor was any interlocutory relief sought within that time. It may be open to Ms Odtojan to seek to replead out of time, but if and when that occurs, that will be a matter for the District Court to resolve, and no doubt much will turn on the quality of the proposed pleading. We say this because insofar as the issues concern Mr Condon, there is not (so far as we are aware) any pending pleading in the District Court. The contention that by making an allegation which pertains to criminality Ms Odtojan is without more entitled to a final hearing misconceives basic aspects of the legal system. It also manifests a continued failure to grasp the need to have a proper basis for making serious allegations within the court system before those allegations are made.

More generally, the materials provided by Ms Odtojan and Mr Bryl do not show cause why this Court’s judgment and the papers in this Court should not be referred to the Legal Services Commissioner. If anything, they reinforce that such a referral is appropriate given their reiteration of serious allegations without any apparent proper foundation and the apparent ongoing misunderstanding by Ms Odtojan and Mr Bryl of their obligations as legal practitioners.

The whole of the papers will be referred to the Office of the Legal Services Commissioner. They are quite voluminous, but it is better that all of the materials be provided, noting that the most important are the pleading which was struck out by the District Court, the transcript of the hearing before Norton DCJ on 16 February 2023, Ms Odtojan’s email to her Honour’s Associate dated 24 February 2023, the transcript of the hearing in this Court on 31 May 2023, the reasons for judgment of this Court of 9 June 2023 and today, and the affidavit and submissions dated 27 June 2023.