Preston v Nikolaidis

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

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.

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.

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.

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.

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.

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.

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

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.

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

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.

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.

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.

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.

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.

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.

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.

Accordingly, I make the following orders:

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.