Sanjiv v Coleman Greig Lawyers Pty Ltd

1. [1]

   HIS HONOUR: By notice of motion filed on 18 August 2025, Coleman Greig Lawyers Pty Ltd seeks the following orders:

2. [2]

   That application arises in the following circumstances.

Background

1. [3]

   Reshka Sanjiv is a former client of Coleman Greig which she engaged in about June 2018 to act for her in a family law property matter that had been by that time on foot for approximately three years. Coleman Greig continued to act for Ms Sanjiv until May 2019 when it ceased to do so due to her failure to pay tax invoices rendered for professional fees or to provide instructions to implement orders made in the Family Court.

2. [4]

   In around July 2019, Coleman Greig commenced proceedings in the District Court against Ms Sanjiv for the recovery of its outstanding fees of $258,490. Judgment by default was obtained by Coleman Greig in November that year for $266,860. Attempts to recover this judgment were unsuccessful.

3. [5]

   In due course, in April 2022, Ms Sanjiv retained alternative solicitors to act for her on the sale of the matrimonial home in Epping. A dispute arose with respect to the sale. Ms Sanjiv’s former husband obtained a warrant for possession of the property from the Family Court. In June 2022, Ms Sanjiv attempted to retain Coleman Greig to assist her with respect to her husband’s application and to finalise the sale of the property. She paid their outstanding fees in July 2022. Ms Sanjiv did not thereafter provide instructions to Coleman Greig to assist her either with the sale of the property or her family law proceedings.

4. [6]

   On 31 August 2023, Ms Sanjiv commenced proceedings in the NSW Civil and Administrative Tribunal against Ms Karina Ralston personally seeking copies of all trust account statements and itemised invoices. Ms Ralston was an employed solicitor at the time of Ms Sanjiv’s Family Court proceedings and is now a principal and director of Coleman Greig. Ms Sanjiv withdrew the NCAT proceedings on 18 September 2023 after copies of the statements and invoices were provided.

5. [7]

   Ms Sanjiv then commenced proceedings in this Court by summons filed on 20 September 2023 naming Coleman Greig and Ms Ralston as the defendants (“the First Supreme Court Proceedings”). She sought the following orders:

6. [8]

   Meek J commenced to hear those proceedings on 26 September 2024. The list of agreed issues for determination by his Honour were originally formulated as follows:

7. [9]

   Prior to the commencement of the hearing, Ms Sanjiv indicated that she would no longer press for Orders 1 or 5 in her summons. However, on the evening before the hearing commenced, Ms Sanjiv proposed a series of amendments to her summons. On 26 September 2024, Meek J refused that application. The hearing then commenced on that day but was not finalised until a further two days of hearing on 7 and 8 April 2025. His Honour published his reasons for judgment on 26 May 2025: Sanjiv v Coleman Greig Lawyers Pty Ltd [2025] NSWSC 528.

8. [10]

   On 30 September 2024, less than two days after the first day of the hearing, Ms Sanjiv commenced her second proceedings in this Court by summons naming Coleman Greig as the only defendant (“the Second Supreme Court Proceedings”). By that summons, Ms Sanjiv sought the following relief:

9. [11]

   On about 12 November 2024, Coleman Greig filed a motion seeking to strike out the summons in the Second Supreme Court Proceedings on the basis that it was an abuse of process or otherwise had a tendency to cause prejudice, embarrassment or delay.

10. [12]

    In her written submissions responding to that application, Ms Sanjiv raised various complaints and claims including that the costs sought by Coleman Greig were excessive because the quality of their work was poor, it included fees incurred unnecessarily and were otherwise not fair and reasonable in the circumstances. Meek J heard the motion and on 10 December 2024 dismissed the summons with costs: Sanjiv v Coleman Greig Lawyers Pty Ltd [2024] NSWSC 1675. At [85] of his judgment, his Honour said this:

11. [13]

    The present proceedings were commenced by Ms Sanjiv by statement of claim filed on 2 April 2025, shortly before the commencement of the second day of the hearing in the First Supreme Court Proceedings. Coleman Greig is the only defendant.

12. [14]

    In addition to the agreed list of issues prepared for the First Supreme Court Proceedings, Ms Sanjiv raised the following further issues and matters to which Meek J referred at [49]-[51] of his principal judgment as follows:

13. [15]

    With the exception of the s 173 issue, his Honour permitted Ms Sanjiv to raise those additional issues which he dealt with in the final judgment. However, Ms Sanjiv belatedly raised a number of other issues including:

14. [16]

    Meek J dealt with issues (e), (f) and (g) in his final judgment but said it was too late for Ms Sanjiv to raise issue (a) which was related to issue (c) and what his Honour described as allegations of negligence, issue (b) or issue (d). In her closing submissions filed on 14 April 2025, Ms Sanjiv said, “I respectfully request for findings and conclusions that do not create issue estoppel or issue preclusion or Anshun estoppel or res judicata in relation to my claim for negligence against defendants in 2025/126128 where assessed costs are claimed as damages.”

15. [17]

    In her further closing written reply submissions filed on 26 April 2025, Ms Sanjiv said:

16. [18]

    Before delivering his judgment in the First Supreme Court Proceedings, Meek J relisted the matter on 22 May 2025 to deal with these paragraphs. Ms Sanjiv asked his Honour at that time to defer judgment so that he could take over case management of her matters, including her common law claims. His Honour gave Ms Sanjiv an opportunity to clarify why she wished to adjourn the matter before judgment so that no issue estoppel or res judicata arose in respect to her negligence claims in the Common Law proceedings. He also asked her why she had not previously raised these new proceedings with him:

17. [19]

    In the result, his Honour was not satisfied that he should postpone the delivery of his judgment in the First Supreme Court Proceedings to allow the common law matter to be dealt with concurrently or to defer judgment for any significant length of time based on the existing litigated issues. His Honour then indicated that he proposed to deliver judgment on 26 May 2025, which he did, dismissing Ms Sanjiv’s claim with costs.

18. [20]

    Paragraph [97] of his Honour’s judgment in the First Supreme Court Proceedings should be noted:

19. [21]

    Three days after the publication of that judgment, Ms Sanjiv filed a motion in the First Supreme Court Proceedings seeking, amongst other things, an order that the judgment be set aside or varied under UCPR 36.15 and 36.16(3A) and that the proceedings be transferred to the Common Law Division. McGrath J heard that application on 11 July 2025 and on 13 August 2025 dismissed it as “meritless”. He made an indemnity costs order against Ms Sanjiv.

20. [22]

    Ms Sanjiv has not appealed against Meek J’s decision in the First Supreme Court Proceedings.

Anshun estoppel

1. [23]

   Coleman Greig made the following submissions.

2. [24]

   It is well-established that the Anshun estoppel doctrine may operate to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of an earlier proceeding to have made it unreasonable in the context of that earlier proceeding for the claim not to have been made or the issue not to have been raised. Considerations of finality and fairness inform the doctrine.

3. [25]

   The causes of action do not need to be the same. Anshun itself involved the same set of facts but completely different causes of action. One involved a claim for indemnity, the other was a contractual claim. McColl JA in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [81] said:

4. [26]

   The party invoking the Anshun estoppel doctrine bears the onus of establishing the unreasonableness of the other party’s choice not to make claims or raise issues in the earlier proceedings. Determination of the reasonableness (or otherwise) of the second party’s conduct of the earlier proceedings involves “a value judgment to be made referable to the proper conduct of modern litigation”. That value judgment is to be made objectively, considering any facts relevant to the proper conduct of those earlier applications and is not limited merely to considering the pleadings.

5. [27]

   As noted by Gleeson JA in Inghams Enterprises Pty Ltd v Hannigan [2021] NSWCA 309 at [15], “the relevant question is not whether it would have been reasonable to have made the subject claim in the first proceedings; rather, the question is whether the failure to do so was unreasonable in the context of the first proceeding.”

6. [28]

   There nevertheless remains a “special circumstances” exception to the application of the Anshun principle which comprehends situations where, for broad discretionary considerations relating to notions of justice, the principle will not be applied with full rigour: Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 296 citing the Privy Council in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 at 590; BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [30]; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242 at [38].

7. [29]

   Ms Sanjiv submitted that, after making forensic decisions not to consent to an adjournment, it would be a substantial miscarriage of justice for Colemen Greig now to assert that it is an abuse of process for her to allege negligence in separate proceedings. She contended that Colemen Greig must themselves be estopped from asserting such a position. Ms Sanjiv drew attention to the following passage from the 22 May 2025 proceedings before Meek J:

8. [30]

   It is reasonably apparent that Ms Sanjiv embraces Meek J’s comments at [97] of his judgment in the First Supreme Court Proceedings as some indication or implied indorsement of her position that she had not in some way been precluded or estopped by his decision from thereafter litigating issues of negligence against Coleman Greig. Put another way, Ms Sanjiv was at pains to emphasise that Meek J was not making any determination that she could not later plead a separate case in negligence against Coleman Greig simply because he declined to entertain her attempt to raise such a claim in the proceedings then before him.

9. [31]

   Although Ms Sanjiv does not say so in terms, I also assume that she would wish to contend that in her legally unrepresented state in the proceedings before him, there were “special circumstances” that ought to translate to the exercise of a broad discretion not to apply the Anshun point strictly against her now.

Consideration

1. [32]

   The question must necessarily distil to whether it was unreasonable for Ms Sanjiv not to have raised the allegations of negligence against Coleman Greig in the First Supreme Court proceedings. In my opinion it was unreasonable. This is for the following reasons.

2. [33]

   It is clear that Ms Sanjiv was alive to the possibility of suing Coleman Greig for negligence by no later than April this year when these proceedings were commenced. I consider that she would in fact have been cognisant of the matters she wished to agitate in these proceedings well before that. It is not as if Ms Sanjiv only became aware of or somehow coincidentally alerted to the prospect that she could complain about Coleman Greig’s professional competence as the result of some issue that emerged in the course of the First Supreme Court proceedings.

3. [34]

   The hearing of those proceedings commenced on 26 September 2024. Having regard to the plethora of issues that Ms Sanjiv much later attempted, both with and without success, to have Meek J determine, it cannot reasonably be accepted that she was not aware of the matters she wished to allege were breaches of duty by Colemen Greig in the performance of their retainer. Meek J adverted to that on a number of occasions at the hearing on 22 May 2025.

4. [35]

   Nor can it be said that the allegations are unconnected with the subject matter of the First Supreme Court Proceedings. Ms Sanjiv pleads that Coleman Greig gave advice to her on or about 30 April 2019 to enter into an agreement with her former husband that resulted in consent orders being made by Harper J in the Family Court. Other similar iterations of alleged failures by Coleman Greig are also pleaded, to the effect that their services were professionally unsatisfactory. There is a direct connection between Ms Sanjiv’s assertions that Coleman Greig’s work was poorly performed and unsatisfactory and her contention that she was not obliged to pay their fees for that work.

5. [36]

   Even if there were no such direct connection, the First Supreme Court Proceedings concerned litigation between Ms Sanjiv and Colemen Greig, whether in the context that she was defending their claim for costs relating directly to her Family Court litigation on the one hand or her level of satisfaction with their performance of the services for which the fees were being charged on the other hand. There was a legal and factual connection or overlap between the matters touching and concerning resolution of both disputes.

6. [37]

   The fact that Meek J refused Ms Sanjiv’s application to amend to add the negligence issues to the First Supreme Court Proceedings does not alter the position. The effect of a refusal to amend does not mean that the Anshun principle has no application. Paragraph 8.36 of Spencer Bower and Handley: Res Judicata, 6th Ed says this:

7. [38]

   That principle was recently applied in Fairfield Pastoral Holdings Pty Ltd as trustee of the Piney Ridge Trust v Van Niekerk [2025] FCAFC 25 at [43]-[44]:

8. [39]

   In my opinion, Ms Sanjiv’s claims that Coleman Greig negligently breached their duty of care or the terms of their retainer when acting for her in Family Court proceedings, for which professional services Coleman Greig charged fees which Ms Sanjiv actively disputed, are intimately connected or arise out of the same circumstances. Ms Sanjiv’s complaint that Colemen Greig were negligent when acting for her properly belonged to the First Supreme Court Proceedings and could and should have been litigated there. It is unreasonable for her to attempt to litigate them now. The present proceedings are an abuse of process and should be dismissed.

UCPR 14.28

1. [40]

   Coleman Greig maintains for a number of reasons that Ms Sanjiv’s statement of claim is defective and should be struck out on the basis that it tends to cause prejudice, embarrassment or delay in the proceedings.

2. [41]

   First, it bundles multiple points in a single large paragraph and does not give proper particulars. That requires the defendant to guess what the claim is. That is not an acceptable way to proceed, even allowing for the fact that Ms Sanjiv is not legally represented.

3. [42]

   Second, it does not include any reference to matters required by the Civil Liability Act 2002. Such matters are fundamental to understanding the legal basis of the claim. For example, there is no identification of the existence and scope of the retainer at each relevant time, the scope and content of any duty, the alleged risk of harm, the basis relied on to say the defendant knew or ought to have known of the risk, or what precautions Coleman Greig ought to have taken.

4. [43]

   Third, paragraph 8 of the statement of claim pleads nothing about what advice should have been given. The remaining paragraphs identify the content of the proposed advice, but not the circumstances relied on for why that advice would have been given by a reasonable person: s 5B(1)(c). There is no pleading of any of the matters in s 5B(2) or any other relevant circumstances relied upon.

5. [44]

   Fourth, there is no pleading that the alleged negligence was a necessary condition of the harm or that it is appropriate for the scope of liability to extend to the harm caused (s 5D). There is also no pleading of the circumstances relied upon for either s 5D (3) or s 5D (4).

6. [45]

   Fifth, there is no pleading of the losses claimed and therefore no proper pleading of causation. Without legally recognised compensable harm, the claim has no legal basis and no prospect of success.

7. [46]

   Sixth, it is similarly fundamental that the alleged breach caused the claimed harm. This is not pleaded.

8. [47]

   Seventh, Ms Sanjiv has failed to plead all relevant facts and circumstances relied upon or to give adequate particulars.

9. [48]

   Eighth, there is inadequate pleading of what Ms Sanjiv alleges would have happened had that advice been given. The allegation that she would have accepted the advice is only the first step: there is no reference to what would have happened if the “correct” advice had been given and acted upon.

10. [49]

    Ninth, there are no facts or circumstances pleaded to support causation or that the scope of liability should extend to the losses.

11. [50]

    Ms Sanjiv submitted that access to justice is a fundamental aspect of the administration of justice and that the Court should be vigilant to guard against the rigid application of principle at the expense of facilitating the just resolution of matters properly brought forward for judicial determination. To that end, a degree of flexibility and even indulgence might appropriately be afforded to a self-represented litigant in a proper case: see Re Attorney-General; ex parte Skyring (1996) 70 ALJR 321; [1996] HCA 4.

12. [51]

    I take Ms Sanjiv’s response to be at least a tacit acceptance of the fact that her statement of claim is inadequate and that she should be given an opportunity to replead it in proper form.

Consideration

1. [52]

   There is in my opinion no question that Ms Sanjiv’s statement of claim is wholly inadequate and should be struck out. Resorting to purely non-technical language, it would not be possible to know from any reading of the statement of claim precisely, or even generally, what advice Ms Sanjiv says Coleman Greig should have given to her in place of the advice that she actually received. Presumably Coleman Greig recommended that she enter into the agreement represented by the consent orders. If Ms Sanjiv alleges that that advice was negligent or inadequate or faulty, at the very least she would be required to describe or explain what was wrong with it. What advice should she have been given? It is not possible to know what Coleman Greig failed to do which they allegedly should have done.

2. [53]

   Equally fundamental is Ms Sanjiv’s failure to explain what she has allegedly lost as the result of the advice she was given. Ms Sanjiv was in a property dispute in the Family Court. It may be accepted for present purposes that she came away from that contest disappointed with the outcome. What does Ms Sanjiv now say is the outcome that Colemen Greig could and should have secured for her in contradistinction to the outcome they achieved? Ms Sanjiv does not articulate the nature or extent of her loss by any comparison between what she got and what she wanted. Nor does she come to terms with the fact that the achievement of any different result for her in the Family Court was necessarily constrained by the parameters of adversary litigation in which she was engaged: the extent to which Colemen Greig could or should have achieved a different result is to a considerable extent a function of factors beyond their control. Would Ms Sanjiv’s former husband have agreed to any other result? Was the outcome reasonably aligned with the forensic risks that she faced? These things are not adverted to in the statement of claim in any way at all.

3. [54]

   I have already indicated that these proceedings are an abuse of process and should be dismissed. But for that conclusion, I would have been prepared to afford Ms Sanjiv an opportunity to re-plead her case. However, in so saying I remain pessimistic that any statement of claim that Ms Sanjiv might prepare without legal assistance would not offend in the ways described above.

Vexatious Proceedings Act 2008

1. [55]

   Following my conclusions with respect to the Anshun issue, these proceedings are to be dismissed. I am confident that Ms Sanjiv, who has highly regarded academic qualifications, will appreciate the force of those conclusions. It is preferable that she not be burdened with the stigma as a vexatious litigant if that can be avoided. It is to be hoped that Ms Sanjiv will accept the fact that it is in nobody’s interests for further hopeless litigation between her and Coleman Greig to be pursued.

Orders

1. [56]

   I make the following orders:

   1. (1)

      Dismiss the proceedings.

   2. (2)

      Order the plaintiff to pay the defendant’s costs.