Martin v Vardanega & Ors

1. [1]

   On 28 February 2025, Ms Lynette Martin filed a statement of claim against Mr Stephen Vardanega, Mr Michael Roberts, Mr Nicholas Studdert and Mr Danny Feller SC. The first three of these defendants are solicitors who appeared against Ms Martin in workers compensation proceedings which were settled in 2003. The fourth defendant, Mr Feller, appeared for those three solicitors in previous proceedings brought by Ms Martin against them in late 2020. By notice of motion filed on 15 May 2025, Mr Feller seeks the following orders:

   1. (1)

      That the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or the inherent jurisdiction of the Court;

   2. (2)

      In the alternative to order 1, that the whole of the statement of claim filed on 28 February 2025 insofar as it relates to the fourth defendant be struck out pursuant to r 14.28 of the UCPR;

   3. (3)

      Further, in the alternative to order 1, pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW) that the proceedings be stayed as against the fourth defendant until further order;

   4. (4)

      Pursuant to s 8(7)(c) of the Vexatious Proceedings Act that the plaintiff be prohibited from instituting any proceedings in New South Wales against the fourth defendant in relation to the subject matter of this proceeding without leave of the Court; and

   5. (5)

      That the plaintiff is to pay the fourth defendant’s costs of and incidental to these proceedings including with respect to the notice of motion.

2. [2]

   It should be noted at the outset that on 26 June 2025, Cavanagh J dismissed the proceedings in relation to the other three defendants: see Martin v Vardanega [2025] NSWSC 802. His Honour also made an order pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) (“the Act”) that Ms Martin not be permitted to commence proceedings against them arising out of any matter relating to her earlier compensation claim or any matter related to specific proceedings without leave of the Court. Regrettably, Mr Feller’s motion that comes before me for hearing today seeks substantially similar orders. It was not able to be heard by Cavanagh J at the same time as that motion because Ms Martin did not consent to that course being adopted.

3. [3]

   A second notice of motion that was filed on 17 July 2025 is before the Court as well today. By that notice of motion, the plaintiff seeks default judgment against Mr Feller in the amount of $48,003,000. The fourth defendant submits that that motion should be dismissed with costs as well.

The hearing

1. [4]

   At the hearing of the motion today, Mr Wong of counsel appeared for the fourth defendant. Ms Martin appeared unrepresented. I granted leave for friends of hers to sit with her at the bar table: Ms Sonia Kupchek for moral support, Mr Larry Shelley as a “McKenzie friend”, as well as Mr Paul Shelley.

2. [5]

   The fourth defendant relied on two affidavits of his solicitor, James Derek Burg. The first affidavit was sworn on 15 May 2025. Exhibit JDB to that affidavit was tendered. The second affidavit of Mr Burg sworn 4 August 2025 was also read. Ms Martin relied on her affidavit affirmed on 16 July 2025 which was read as well as other documents that were included in the court book. They were described by Ms Martin as her court book. I have marked them as Exhibit B in these proceedings.

3. [6]

   Both parties also provided written submissions.

4. [7]

   I have obtained the following chronology from those documents. In particular, I have relied on findings and summaries of the procedural history of the previous litigation commenced by Ms Martin from the decisions of Schmidt, Chen and Cavanagh JJ, which I will refer to below.

5. [8]

   Regrettably, the proceedings have had a long history.

6. [9]

   On 3 July 1996, Ms Martin suffered an injury to her back whilst lifting heavy boxes.

7. [10]

   In or around 1997, she commenced proceedings in the District Court against her employer, Julia Ross Personnel Pty Ltd (“Julia Ross”), and against the company where she was working, Gow-Gates Insurance Brokers Pty Limited (“Gow-Gates”). Ms Martin had been sent to work at Gow-Gates by Julia Ross, with whom she had registered for temporary employment. Ms Martin claimed damages for the injuries and loss alleged to have been suffered by her in consequence of sustaining her back injury.

8. [11]

   Ms Martin was represented by Gerard Malouf & Partners and Julia Ross was represented by Vardanega Roberts, who were appointed by its statutory workers compensation insurer Allianz Australia Insurance Ltd.

9. [12]

   Ms Martin was unsuccessful in the District Court proceedings before Boyd-Boland AJ. A co-worker gave evidence about the weight of the boxes Ms Martin claimed had resulted in her back injury when she had to lift them while at work. The evidence of the co-worker was preferred over that of Ms Martin: see Martin v Gow Gates Insurance Brokers Pty Ltd (District Court (NSW), 16 February 2000, unrep). There was no appeal from that decision by Ms Martin.

10. [13]

    Ms Martin subsequently commenced workers compensation proceedings in the Compensation Court against Julia Ross which were settled in September 2003. She was again represented by Gerard Malouf & Partners, who briefed Mr Philip Beale of counsel. Julia Ross continued to be represented by Vardanega Roberts. The proceedings were listed for hearing before Burg AJ on 11 September 2003, at which time the Court was advised that the matter had settled on terms which included payment of Ms Martin’s expenses under s 60 of the Workers Compensation Act 1987 (NSW), agreed at $9,400. Consent orders signed by Ms Martin on 11 December 2003 were made that day.

11. [14]

    Ms Martin later commenced workers compensation proceedings against Gow-Gates as well. Those proceedings were discontinued.

12. [15]

    There were no further legal proceedings brought by Ms Martin until November 2020. Since that time, she has brought a series of unsuccessful claims in this Court against her own solicitors and barristers and those who have appeared against her at various times. In these proceedings, she has made some far-reaching allegations including serious and unfounded allegations of fraud.

13. [16]

    In November 2020, Ms Martin commenced proceedings by way of statement of claim against Mr Malouf and Mr Kolokossian, principals at Gerard Malouf & Partners, and Mr Petrovski, their employed solicitor. The proceedings also named as defendants Mr Vardanega and Mr Roberts, the principals of Vardanega Roberts, and their employed solicitor, Mr Studdert. Mr Danny Feller SC appeared for Mr Vardanega (third defendant), Mr Roberts (fourth defendant), and Mr Studdert (sixth defendant) in those proceedings.

14. [17]

    On 23 April 2021, Schmidt J ordered that those proceedings be summarily dismissed and that the plaintiff pay the defendants’ costs: see Martin v Malouf [2021] NSWSC 415.

15. [18]

    For the avoidance of any doubt, Mr Feller’s first involvement in any of Ms Martin’s proceedings was when he appeared for Mr Vardanega, Mr Roberts and Mr Studdert before Schmidt J.

16. [19]

    On 7 July 2021, the successful defendants issued Ms Martin with an assessment of costs. She was not prepared to agree to them, so a formal costs assessment process was required. A draft application for assessment of ordered costs was subsequently prepared. Mr Feller did not prepare either of those documents.

17. [20]

    In an entry dated 18 March 2021 for the amount of $302.50 in the bill of costs, an item is described as follows:

18. [21]

    In another entry dated 25 March 2021 in that same bill of costs for the amount of $137.50 the description reads:

19. [22]

    In another document described by Ms Martin as “the 2004 document” but which appears to be another entry in the bill of costs dated 31 March 2021, the following entry is included:

20. [23]

    That entry then goes on to describe five categories of documents in relation to which a legal professional privilege claim had been made. Two of those categories are described as, “Requests for investigation reports from scheme agents to investigators and investigation reports received by scheme agents from investigators spanning the period 11 September 1996 to 12 April 2000”, and “Correspondence, including legal advice, between Vardanega Roberts and Julia Ross Recruitment (the insured employer) and scheme agents spanning the period September 1999 and 6 August 2004”.

21. [24]

    On 5 October 2022, Ms Martin filed two further statements of claim. The first of these sought $50 million from those associated with Julia Ross. The second statement of claim sought $30 million against six lawyers who acted for or against her in her previous proceedings. Those six defendants were Mr Vardanega, Mr Roberts, Mr Studdert, Mr Beale, Ms Deborah Moore and Mr Feller.

22. [25]

    Central to Ms Martin’s numerous complaints in those proceedings was an allegation as to the correct identity of her former employer, Julia Ross. She alleged an ongoing fraud by the defendants from the period between 1999 to 2021 in these terms:

23. [26]

    On 30 March 2023, Chen J summarily dismissed both of those proceedings: see Martin v Ross & Ors; Martin v Vardanega & Ors [2023] NSWSC 303. In doing so, his Honour considered Ms Martin’s central claim that Julia Ross had somehow changed its identity to avoid its obligations to Ms Martin and that the defendants had all conspired to keep that information from her. At [16] of that judgment, Chen J observed the following:

24. [27]

    At [48] of his judgment, Chen J set out the allegations made by Ms Martin on this issue in those proceedings which are the same allegations she makes in this court. His Honour noted that Ms Martin claimed:

25. [28]

    His Honour went on to set out the evidence contrary to those assertions at [49] as follows:

26. [29]

    His Honour concluded the following at [51]:

27. [30]

    It should be noted that in relation to the 2022 proceedings, Mr Feller had been removed as a defendant prior to the decision by Chen J. Mr Feller’s legal representatives had sent Ms Martin a letter on 4 November 2022 inviting her to reconsider agreeing to have Mr Feller removed from the proceedings on the ground that the pleadings did not disclose a cause of action against him. Mr Feller was subsequently removed as a party to those proceedings by consent orders on 10 November 2022.

28. [31]

    It should be noted that on 10 November 2023, Harrison AsJ dismissed proceedings brought by Ms Martin against Julia Ross, and Ms Martin was ordered to pay its costs of those proceedings. Those proceedings were brought by Ms Martin by way of statement of claim filed on 5 October 2022 against Ms Ross and six other defendants. Although Mr Feller was not part of those proceedings, they concerned the same subject matter, in that Ms Martin again alleged that Ms Ross had set up a company for the purpose of fraud and had commenced a fraud by “presenting that company as the second defendant in her District Court proceedings”. Harrison AsJ adopted the findings made by Chen J on that issue.

29. [32]

    On 5 June 2024, Ms Martin filed a statement of claim against Mr Feller as sole defendant claiming $48 million in damages. Prior to that, on 20 May 2024, Davies J had dismissed proceedings brought by Ms Martin on 7 December 2023 against Allianz. She was ordered to pay the defendant’s costs of those proceedings: Martin v Allianz Australia Workers Compensation NSW Ltd [2024] NSWSC 557.

30. [33]

    Although Mr Feller was not joined in those proceedings, Ms Martin again raised the same issue about the identity of her employer in them. Davies J referred to the 2023 judgment of Chen J and observed the following at [40] in relation to Chen’s J judgment on this issue:

31. [34]

    Following the commencement of proceedings against Mr Feller, on 17 June 2024, his legal representatives sent a letter to Ms Martin seeking particulars and inviting Ms Martin to either discontinue proceedings on the basis that the parties pay their own costs or, alternatively, provide particulars within 14 days. Ms Martin was advised that in the event that neither of those courses were taken by her, the solicitors would take instructions from their client as to whether he wished to bring an application for summary dismissal.

32. [35]

    On 3 July 2024, a notice of motion was filed on Mr Feller’s behalf seeking that Ms Martin’s claim be dismissed or struck out.

33. [36]

    On 11 July 2024, Ms Martin discontinued those proceedings by Notice of Discontinuance, on terms which included that she agreed that she was not permitted to commence any further proceedings against the defendant in relation to the subject matter of these proceedings without the leave of the Court.

34. [37]

    Despite Mr Feller agreeing not to pursue costs against Ms Martin when those proceedings were discontinued, in exchange for her agreeing not to pursue him again without the leave of the Court, on 28 February 2025, Ms Martin filed yet another statement of claim against four defendants: Mr Vardanega, Mr Roberts, Mr Studdert and Mr Feller. There is no evidence before the Court that she sought or was granted leave to commence the proceedings against Mr Feller.

35. [38]

    Ms Martin explained in her written submissions that she presumed she had leave to file it when the Registry accepted it for filing. As I have already indicated, Cavanagh J dismissed those proceedings as against the first three defendants on 26 June 2024. Mr Feller today seeks similar orders to those made by Cavanagh J in relation to the same proceedings.

36. [39]

    As Cavanagh J observed at [23] of his decision, Ms Martin’s statement of claim goes to approximately 59 pages, reads as if it is a submission and it is difficult to discern the nature of her case. His Honour went on to make the following observations about the pleadings at [24]-[26]:

37. [40]

    The allegations made specifically against Mr Feller are somewhat difficult to identify. At [8] of the statement of claim, Ms Martin asserts:

38. [41]

    I pause to note that it is tolerably clear that the reference to the Court of Criminal Appeal appears to be a reference to the initials “CCA” in the bill of costs extracted above, which is in fact a reference to the Compensation Court Act 1984 (NSW) (now repealed).

39. [42]

    At [25]-[26] of the statement of claim, Ms Martin asserts:

40. [43]

    Again, this appears to be a reference to the same extract from the bill of costs.

41. [44]

    Included in the statement of claim under a different heading, at [22], she asserts the following:

42. [45]

    There are other references to Mr Feller in the statement of claim, but they are repetitive. The nub of the allegations seems to be twofold: it is alleged that Mr Feller concealed material from Ms Martin as evidenced in documents disclosed in the bill of costs, and also that he somehow knew that Julia Ross had become a public company and concealed that as well.

43. [46]

    I note that Cavanagh J made this observation on this issue at [43] of his recent judgment:

44. [47]

    I am satisfied that the documents referred to are those in the bill of costs to which I have already referred.

45. [48]

    In addition to her written submissions, I invited Ms Martin in her oral submissions today to identify what her claim is as against Mr Feller.

46. [49]

    She submitted that he had concealed “an investigation report” from both her and Schmidt J, and that Ms Martin only learned of this when she received the bill of costs following judgment in that matter. With the assistance of Mr Wong of counsel, I was able to ascertain that what Ms Martin was referring to were the two entries entered by Mr Feller’s instructing solicitor in the bill of costs which I have already extracted.

47. [50]

    Ms Martin relied upon those two entries in the bill of costs to submit that Mr Feller knew that the proceedings in the Workers Compensation Commission in 2003 were illegal.

48. [51]

    The next document she relied upon was described by her as the “2004 document”. She referred to that document as a “scheme agent report”. She submitted this as further evidence that Mr Feller knew that Julia Ross had submitted the “wrong company” to the Court.

49. [52]

    When I inquired of her as to whether there were any other matters she relied upon in bringing proceedings against Mr Feller, she submitted that during the hearing before Schmidt J, Mr Feller referred to Ms Martin’s previous employer as “Julia Ross Personnel” instead of “Julia Ross Recruitment”.

50. [53]

    Overall, Ms Martin kept returning to the same two topics, that the 2003 proceedings were illegal because she was not aware of them, and that they were brought under an incorrect name. She submitted that if Mr Feller had not concealed that he knew about the incorrect name of Julia Ross she could have brought that material before Schmidt J. Instead, it was submitted, the judgment of Schmidt J is illegal, and it has been relied upon in subsequent decisions by other judges.

51. [54]

    Ms Martin also submitted that she did not agree to have this notice of motion heard by Cavanagh J at the same time as the motion for summary dismissal brought by the first, second and third defendants. When I inquired why that was the case, she was unable to give a satisfactory answer. She agreed that the subject matter was the same and that all proceedings concern her central complaint, which is that there has been a cover-up or fraud committed in concealing that the workers compensation proceedings had been brought against the wrong company.

52. [55]

    I inquired of Ms Martin whether she accepted that all of the proceedings she had commenced thus far arose from the same subject matter, namely, the identity of Julia Ross company as at the time Ms Martin brought proceedings against it. She replied that she could not understand why the judgments have found against her when the identity of the company has been concealed. She submitted that no matter how many hearings there were, she could not understand that. She repeated that if she had the information contained in the bill of costs prior to the hearing before Schmidt J, she would have had that evidence then.

53. [56]

    I drew Ms Martin’s attention to those portions of the decision of Chen J, which thoroughly deal with the issue of the proper identification of her previous employer. She did not appear to have ever read that judgment. I asked her whether she had read it, and she responded that she had only read part of it because she finds it “stressful”.

54. [57]

    I drew Ms Martin’s attention to [16] of that judgment, which I have already extracted. She initially would not agree with it and would not engage with questions I asked about it until she finally accepted what was in that paragraph.

55. [58]

    I inquired of Ms Martin whether, in the event that I dismissed the proceedings today but did not make an order under the Vexatious Proceedings Act, she would file another statement of claim raising the same issues. Her response was, “possibly.”

56. [59]

    As for agreeing to discontinue these proceedings before Mr Feller in 2024, she submitted that he had made a threat to her and pressured her to discontinue the proceedings. Specifically, she submitted that he used the legal fees against her and that she did not want to sign the notice of discontinuance.

57. [60]

    Mr Wong provided helpful written and oral submissions identifying the relevant legal principles. I have adopted some of those in my consideration below. He also assisted the Court throughout the hearing in identifying relevant documents when certain submissions were made by Ms Martin. As for the suggestion that Ms Martin had felt threatened to discontinue the proceedings, he identified the two letters which I have already extracted and noted that they contained nothing more than invitations to do so in both 2022 and 2024.

The notices of motion

1. [61]

   Before turning to consider whether I would summarily dismiss these proceedings, it is first necessary to consider Ms Martin’s motion that I would enter default judgment against the fourth defendant in the amount of $48,003,000. I do propose to dismiss that motion for reasons I will return to later in this judgment.

2. [62]

   The first order sought by Mr Feller is that the proceedings be summarily dismissed pursuant to r 13.4 of the UCPR. An alternate order is sought that the proceedings be struck out under r 14.28(a)-(c) of the UCPR.

3. [63]

   The power to grant summary relief is contained in r 13.4, which provides:

4. [64]

   The power to strike out a pleading in whole or in part is contained in r 14.28 of the UCPR. It provides as follows:

5. [65]

   When a pleading is unintelligible, ambiguous, vague or too general, the rule typically employed in those circumstances is that the pleading is struck out. The statement of claim filed by Ms Martin clearly falls into that category, but Mr Feller’s primary position is that no reasonable cause of action is disclosed in the statement of claim, and it is otherwise an abuse of process, so I will deal with that application first.

6. [66]

   The onus is on Mr Feller to establish that the proceedings should be dismissed. It is well recognised that the Court is cautious to either dismiss or strike out proceedings at an early stage. The principles which govern such an application are well known. Chen J set out the relevant principles at [38]-[40] of his 2023 decision as follows:

Consideration – summary dismissal

1. [67]

   Despite my best efforts to extract from Ms Martin her cause of action as against Mr Feller, she was unable to do so. She relied heavily on the bill of costs document I have extracted above to mount an argument that the result would have been different before Schmidt J had Mr Feller not concealed what she later discovered from that bill of costs.

2. [68]

   There are a number of problems with Ms Martin’s case against Mr Feller. First, the only possible proceedings which could be brought against Mr Feller would be for negligence. The fundamental difficulty with bringing such a claim is that Mr Feller at no time owed any duty of care to her. He was never retained by Ms Martin or on her behalf to protect her workers compensation entitlements, nor was he ever retained by her or on her behalf to protect her legal rights as an injured worker. The only involvement he has had is to be retained by the solicitors to appear on their motion to have the 2020 proceedings dismissed before Schmidt J.

3. [69]

   Secondly, even if such a duty existed, which it clearly does not, the entries in the bill of costs could never establish the facts that Ms Martin contends they do. The fact that Mr Feller requested that his solicitor conduct some research regarding the statutory power to reopen proceedings in the District Court and the Compensation Court is simply not capable of establishing that he knew about proceedings that had been brought against, allegedly, a wrong corporate entity back in 2003.

4. [70]

   Thirdly, it has been held on a number of occasions already that Ms Martin’s argument about whether Julia Ross was correctly named should be rejected. I have already referred to the findings of Chen, Davies and Cavanagh JJ as well as Harrison AsJ. I am satisfied for the reasons provided by Chen J that this is the case as well.

5. [71]

   I have afforded Ms Martin a degree of latitude given that she is self-represented, but it is simply impossible to ascertain from the statement of claim what case Mr Feller has to meet.

6. [72]

   Not only does the statement of claim fail to disclose any reasonable or arguable cause of action, I am also satisfied that there is no utility in allowing Ms Martin to replead her case as the proceedings could never disclose any reasonable cause of action.

7. [73]

   As such, even giving the most beneficial and generous approach to her statement of claim, it could not succeed.

8. [74]

   I have also had regard to the fact that Ms Martin did not seek leave to commence this proceeding, nor has she sought to demonstrate any basis upon which she should be permitted to bring the same claim in circumstances where, on two separate occasions, she withdrew them.

9. [75]

   The pleading is such that it should be struck out under r 14.28 of the UCPR, although, as I have already observed, I have taken the same view as Cavanagh J that there is nothing to be achieved by making such an order given that I am satisfied that the proceedings are an abuse of process, do not disclose any reasonable cause of action, and could not ever disclose any reasonable cause of action.

10. [76]

    In those circumstances, it is not necessary to resort to r 14.28. I am satisfied that the proceedings should be summarily dismissed pursuant to r 13.4 of the UCPR.

11. [77]

    I return to provide my reasons for not entering default judgment against the fourth defendant in the amount of $48,003,000 as sought by Ms Martin’s notice of motion. That motion is easily disposed of.

12. [78]

    The basis of the application is, apparently, that Mr Feller has not made any payments towards the amounts claimed by her and because he has not as yet filed a defence. There are understandable reasons why Mr Feller did not file a defence in these proceedings. No cause of action is disclosed. For all of the reasons I have already explained, the proceedings are baseless. Rather than filing a defence, which was simply not possible given the state of the pleadings, Mr Feller instead filed a notice of motion seeking summary dismissal, which I have already dealt with.

13. [79]

    Further reasons for not filing a defence include that the proceedings relitigate matters that have been discontinued as against him twice. That includes the occasion on which Ms Martin agreed to the discontinuation of proceedings on the basis that she would not commence similar proceedings without seeking the leave of the Court and then went on to do so.

14. [80]

    It is for those reasons that I dismissed Ms Martin’s motion.

Application under the Vexatious Proceedings Act

1. [81]

   Finally, Mr Feller seeks a declaration under s 8 of the Vexatious Proceedings Act.

2. [82]

   Mr Feller relied on the fact that this is the third set of proceedings brought against him which are:

   1. (1)

      The 2022 proceedings, which were discontinued as against him in the statement of claim summarily dismissed by Chen J;

   2. (2)

      The 2024 proceedings, which were discontinued against him; and

   3. (3)

      The current proceedings, which were summarily dismissed by Cavanagh J as against the other three defendants.

3. [83]

   I invited Ms Martin to make submissions as to why I would not make an order under the Vexatious Proceedings Act as sought by Mr Feller. I explained to her what the effect of such an order would be and what matters I had to be satisfied of before I could make such an order.

4. [84]

   Ms Martin submitted that all of the previous Supreme Court hearings related to a company that she did not work for. She agreed that the proceedings covered the same subject matter. She submitted that at no stage have any of the proceedings referred to the identity of Julia Ross. She submitted that Julia Ross “stole” her compensation entitlements.

5. [85]

   Later, when I invited Ms Martin to make submissions as to why costs should not be ordered against her, she returned to the question of why a vexatious proceeding order should not be against her. She submitted that she considers that there has been a fraud committed against her and that the “illegal hearing in 2003” was conducted without her knowledge and consent. She submitted that she is making the same argument because she did not work for that company. She is trying to get a resolution and has not been successful.

6. [86]

   Ms Martin apologised and submitted she would never behave like a vexatious litigant, but she objects to the abuse of power and false allegations made against her, and the fact that evidence has been kept from her. Again, she submitted that if that had not happened, she would not have had to go to these hearings.

7. [87]

   Mr Wong, again, provided helpful written submissions regarding the relevant principles in an application made under the Vexatious Proceedings Act, and their application to these proceedings. I have taken them into account in my consideration.

Consideration – application under the Vexatious Proceedings Act

1. [88]

   The relevant principles governing such an application are well established.

2. [89]

   Section 6 of the Act defines vexatious proceedings as including proceedings that are an abuse of process of a court or tribunal; proceedings instituted to harass or to annoy, to cause delay or detriment or for another wrongful purpose; proceedings instituted or pursued without reasonable ground; and, proceedings that are conducted to achieve a wrongful purpose or in a way that harasses or causes unreasonable annoyance, delay or detriment.

3. [90]

   Section 8 of the Act is in the following terms:

4. [91]

   In the usual case, consideration of whether vexatious proceeding order should be made involves four steps. Those four steps were identified in the decision of the Court of Appeal in Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 (“Zepinic”), in which Simpson AJ (with whom McColl and Macfarlan JJA agreed) identified the steps that need to be identified for the purpose of such an application at [13] and [15] of that decision as follows:

   1. (1)

      Identify the proceedings the subject of the application which are said to be vexatious;

   2. (2)

      Determine, applying s 6, which, if any, of those proceedings are an abuse of process or instituted without reasonable grounds;

   3. (3)

      Determine whether the person has frequently instituted vexatious proceedings in Australia; and

   4. (4)

      Determine the manner in which the Court’s discretion is to be exercised.

5. [92]

   Turning to these four considerations in turn, the proceedings the subject of this application have already been identified. They are matter number 2022/296130, matter number 2024/208153 and the present proceedings number 2025/80318. I have already considered the nature of those proceedings in my reasons. I am satisfied that those are the proceedings relied upon which are said to be vexatious.

6. [93]

   The second step is to determine which, if any, of those proceedings are an abuse of process or instituted without reasonable grounds. I have been assisted in that regard by the findings made by Chen and Cavanagh JJ. Although Mr Feller was not a defendant in the proceedings before Schmidt J, I have also been assisted with aspects of that finding, given that Mr Feller’s first involvement in this matter arose from representing the defendants in that case. I am satisfied that the three proceedings identified by Mr Feller are all an abuse of process and were instituted without reasonable grounds.

7. [94]

   Mr Feller appeared as counsel against Ms Martin in the proceedings before Schmidt J. As a result of that appearance, for reasons which have not properly been explained by Ms Martin, she has now included him in her long-standing grievances against both her own solicitors and those that appeared for the insurer nearly 25 years ago.

8. [95]

   It is abundantly clear that Ms Martin is dissatisfied with the resolution of her legal proceedings in the early 2000s, but Mr Feller had no involvement in those proceedings. His only involvement with Ms Martin was, as I have already indicated, to appear for the defendants she unsuccessfully attempted to sue in 2020. Although not strictly relied upon by the fourth defendant, I also consider it to be relevant that the same subject matter has been unsuccessfully litigated by Ms Martin in other matters concerning different defendants.

9. [96]

   The three identified proceedings are all an abuse of process and were instituted without reasonable cause. I am satisfied the second criteria necessary before an order under the Act can be made has been satisfied.

10. [97]

    The third criterion is to determine whether Ms Martin has frequently instituted vexatious proceedings in Australia.

11. [98]

    The question of what is meant by the word “frequently” in that statutory context was considered in Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 at [114]-[118] by Leeming JA (with whom Basten and Meagher JJA agreed):

12. [99]

    Ms Martin has commenced and discontinued proceedings against Mr Feller twice. On the last occasion, she agreed, as part of that discontinuance, that she would not bring further proceedings against him without the leave of the Court. She breached that agreement by bringing these proceedings against Mr Feller again. I note that she did not give an undertaking to the Court on the last occasion that she would not commence proceedings without first seeking the leave of the Court. If she had been asked to do so, then she would be in breach of that undertaking and potentially liable for contempt of court.

13. [100]

    I am satisfied that the third criterion is satisfied as well. Although there have only been three proceedings commenced against Mr Feller, I have had regard to the nature of them, the serious allegations made in them, and Ms Martin’s persistence over a relatively short time to relitigate matters that have been discontinued. For these reasons, I am satisfied that the third criterion is met.

14. [101]

    Finally, given that the making of such an order is discretionary, I must determine the manner in which it should be exercised.

15. [102]

    I am satisfied that an order should be made under s 8 of the Act. None of Ms Martin’s pleadings in the last three times she has pursued Mr Feller have disclosed a proper cause of action and all of them were an abuse of process. She has sought substantial sums of money without any proper basis. I consider it significant in the exercise of my discretion that Ms Martin has made serious and baseless allegations against Mr Feller.

16. [103]

    I have paid particular regard to some of the submissions made by Ms Martin in Court today. The effect of her submissions is that she will never understand why the courts have not accepted her argument that her employer was wrongly named. She admitted to not having read all of Chen J’s decision before bringing further proceedings on the same subject matter. The effect of her submissions today is that she feels compelled to keep pursuing her claim until she is successful. As I have already observed, when I inquired of her whether she would file a further statement of claim if I did not make an order under the Act, her response was “possibly”.

17. [104]

    It is most unfortunate that Ms Martin seems incapable of understanding why her arguments have been unsuccessful, and, also, that a litigant cannot simply keep coming back to the same court with the same arguments after being repeatedly unsuccessful. Ms Martin was at all times courteous to the Court, as were her friends who I permitted to sit with her at the bar table. Regrettably, she appears to have become fixated with a legal argument that she feels has great force when it simply does not.

18. [105]

    Section 8(7) of the Act provides that the Court has the power to make a number of different types of orders. Mr Feller does not seek an order that Ms Martin be precluded from issuing any proceedings in New South Wales of any nature. He only seeks that Ms Martin be precluded from issuing proceedings against him on a specified subject matter.

19. [106]

    I have had regard to the limited scope of the order sought. I have also had regard to the costs that have already been wasted in the multiple previous proceedings. I note that to date Ms Martin has not had indemnity costs ordered against her.

20. [107]

    Finally, I have had regard to the fact that Cavanagh J made similar orders prohibiting Ms Martin from commencing proceedings against the first, second and third defendants in this matter.

21. [108]

    For all of these reasons, I am satisfied that it is appropriate to make an order under s 8 of the Vexatious Proceedings Act as sought by Mr Feller.

Costs

1. [109]

   The defendants have succeeded on their motion and Ms Martin has been unsuccessful on hers.

2. [110]

   The defendants seek an order for costs.

3. [111]

   The plaintiff opposed such orders, stating that she has no means to pay any costs. Further, she submitted that these proceedings have placed a tremendous strain on her health. She has “taken a big hit” but considers that a fraud has been committed against her due to the illegal hearing in 2003. She repeated submissions similar to those I have already referred to.

4. [112]

   I am not persuaded that any proper basis has been put to the Court to depart from the usual rule that costs follow the event and that is the order I propose to make.

Orders

1. [113]

   Accordingly, I make the following orders:

   1. (1)

      The plaintiff’s notice of motion filed on 17 July 2025 is dismissed.

   2. (2)

      The plaintiff is to pay the fourth defendant’s costs of that notice of motion.

   3. (3)

      The proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules.

   4. (4)

      Pursuant to s 8(7)(c) of the Vexatious Proceedings Act 2008 (NSW), the plaintiff is prohibited from instituting any proceedings in New South Wales against the fourth defendant, Mr Danny Feller, in relation to the subject matter of this proceeding, or any matter relating to proceedings numbered 2022/00296130, 2024/00208153 and proceedings number 2025/00080318.

   5. (5)

      The plaintiff is to pay the fourth defendant’s costs of and incidental to these proceedings, including in respect to the notice of motion filed on 15 May 2025.

   6. (6)

      The directions hearings before the Registrar on 1 October 2025 is vacated.