Huang v Attapallil (No.2)

On 8 November 2016, the plaintiff, Ms Biru Huang, filed a Summons in this Court (“the current proceedings”) seeking relief in relation to unlawful and illegal conduct in which she alleged the defendants had engaged whilst acting for and against her in various Local and District Court matters, most notably District Court proceedings number 16/96823 (“the District Court Drumm proceedings”) and Local Court proceedings 15/22577 (“the Local Court Drumm proceedings”).

Ms Huang named Mr Alex Attapallil “… trading as a sole Principal Legal Practitioner as Lexes Lawyers” as the first respondent. He ought more properly to have been called the first defendant, but nothing turns on this, or any other, misdescription. I will refer to the respondents, so named, as defendants. Mr Joseph Assi was named as the second defendant, Mr Charles Thornley as the third defendant and Dr Geoffrey O’Shea as the fourth defendant.

Ms Huang claimed the following relief in the current proceedings:

In considering and dealing with the Summons, it is convenient to attempt to join the relief sought together by reference not to the type or nature of the relief sought but rather by reference to the underlying substance.

One matter of substance relates to the professional conduct of Mr Thornley, and a variety of relief sought by reference to the Legal Profession Uniform Law (NSW) to which I will refer as the Uniform Law, and associated legislation. These claims for relief are to be found in paragraphs 4, 5, 6(c) and 6(d). It will be convenient to refer to this as the “Thornley conduct claims”.

The Uniform Law is also the basis of the claims for relief sought with respect to the first, second and fourth defendants, variously in paragraphs 1, 2 and 3. Paragraph 4 also includes reference to the first defendant. It will be convenient to refer to these as the “Uniform Law claims”.

The last group of claims for relief relate to claims made for corrupt conduct contrary to s 319 of the Crimes Act 1900, and for perjury contrary to s 327 of the Crimes Act. These claims can be found in paragraphs 4, 5 and 6(a). Paragraph 2 also includes relief by reference to a breach of s 178BA of the Crimes Act. It will be convenient to refer to these claims as the criminal conduct claims.

In response to the third defendant’s Motion described below, Ms Huang sought the leave of the Court to file an amended Summons, dated 1 December 2016. I reserved my decision on this application to be included in this judgment.

By Notice of Motion filed on 17 November 2016, Mr Charles Thornley, the third defendant, sought an order pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) that the proceedings be dismissed as being vexatious and oppressive, and as an abuse of process.

In the alternative, he sought an order pursuant to rule 14.28 of the UCPR that the Summons filed in this Court by Ms Huang on 2 December 2016 be struck out on the basis that it was an abuse of process. In a further alternative, he sought an order pursuant to s 67 of the Civil Procedure Act 2005 (NSW) that the proceedings be stayed until Ms Huang pays the third defendant’s costs of proceedings number 2016/223849 in the District Court of NSW in the sum of $19,695.

The third defendant also sought an order that Ms Huang pay his costs on an indemnity basis.

At the start of the hearing of the third defendant’s Motion, each the first, second and fourth defendants made an oral application pursuant to r 18.6(2) of the UCPR for leave to permit them to pursue the same relief against Ms Huang as was sought by the third defendant. The first and fourth defendants did not seek to rely upon any additional evidence, but merely sought to embrace the arguments advanced by the third defendant. The second defendant sought to do so as well, but also relied upon an affidavit. I was persuaded that it was appropriate to grant such leave to the first, second and fourth defendants.

Before the hearing of the third defendant’s Motion commenced, Ms Huang sought an adjournment of three weeks in order to permit her to adequately prepare for the application made by all four defendants. I refused Ms Huang’s application for this adjournment, and provided reasons: see Huang v Attapallil [2016] NSWSC 1904. However, I allowed Ms Huang an opportunity, after the conclusion of the oral submission, to file any further evidence or submissions that she wished to. Ms Huang took advantage of this opportunity both to provide further evidence and to make additional submissions. This material has been taken into account.

Accordingly, this judgment deals with the third defendant’s Notice of Motion (in which the remaining defendants are joined) and Ms Huang’s application for leave to file an Amended Summons.

Ms Huang elected to file quite extensive evidence to justify her submissions, and her right to pursue the proceedings. The other parties also filed evidence. None of the deponents were cross-examined. What follows is taken from the evidence.

Ms Huang is the current trustee of the Corporate Consulting Services Trust (“the Trust”). Dr James Gibson is a discretionary beneficiary of the Trust who also acts in the course of her litigation as Ms Huang’s “Mackenzie friend”. The first defendant, Mr Alex Attapallil, acted as solicitor for Ms Huang between about April and July 2016.

Mr Charles Thornley is the solicitor on the record for Mr Bernhard Drumm, who is a former trustee of the Trust and a chartered accountant resident in New Zealand who is being sued by Ms Huang in the District Court Drumm proceedings and in the Local Court Drumm proceedings. Mr Thornley was at all relevant times a partner of Lander & Rogers, Solicitors. Mr Thornley’s client was at all times opposed to the interests of Ms Huang.

The declarations which Ms Huang seeks in relation Mr Thornley relate to, and derive from, her assertion that Mr Thornley knowingly swore a false affidavit in support of a Notice of Motion filed by his client in the District Court Drumm proceedings seeking orders for the transfer of the proceedings to New Zealand, and that Mr Thornley conspired with those representing her to disadvantage Ms Huang.

The first defendant, Mr Alex Attapallil, was at all relevant times a solicitor, who was the principal of a law firm called Lexes Lawyers. He was at different times, and in different proceedings, the solicitor on the record for Ms Huang.

The second defendant, Mr Joseph Assi, is the CEO of International Legal and Commercial Brokers Pty Limited (“ILCB”). Pursuant to an agreement dated 5 April 2016, Ms Huang entered into an agreement with ILCB. The terms of that agreement were:

The Recitals to the Agreement were as follows:

The legal proceedings listed in the Schedule to the contract were:

Supreme Court proceedings numbered 16/80143 were proceedings against Mr Drumm for contempt of court. They have no direct relevance to these proceedings.

Ms Huang deposed, at the time of entering into her agreement with Mr Assi, that Mr Assi represented to her that he and Mr Attapallil were both solicitors and that the Agreement related to their provision of legal services to her. Ms Huang also deposed that Mr Assi informed her that $3,000 of the total monthly fee that was payable by Ms Huang to ILCB was payment for Mr Assi’s “legal fee[s]”.

ILCB was engaged by Ms Huang from 5 April 2016 until mid-July 2016. Mr Assi’s evidence was that throughout this time, Mr Gibson was the main intermediary between ILCB and Ms Huang.

On 12 April 2016, Ms Huang paid the first instalment of $5,500 pursuant to her agreement with ILCB. The second and third instalments in the same amount were paid on 13 May 2016 and 14 July 2016.

The fourth defendant, Dr Geoffrey O’Shea, is a barrister who from time to time was retained by Lexes Lawyers to advise and appear for Ms Huang.

Ms Huang deposed that on 13 April 2016, she attended a meeting at Mr Assi’s office with Dr O’Shea, the fourth defendant, concerning a hearing which was to take place over two days starting on the next day, 14 April 2016. Dr Gibson was also present.

On 14 April 2016, Dr O’Shea appeared on behalf of Ms Huang and requested an adjournment of the hearing. That adjournment was granted by Bradd LCM, and the proceedings were stood over to 30 May 2016 for directions. The outcome of that hearing was emailed by Dr O’Shea to Mr Attapallil and Mr Assi on the afternoon of 14 April 2016.

On 30 May 2016, when the matter returned to Court, Atkinson LCM made the following orders:

On Monday 6 June 2016, Mr Nicholas Cohen of Lander & Rogers, the solicitors for Mr Drumm, sent a letter in which he articulated a claim for the costs which Atkinson LCM had ordered to be paid. However, the full details of the letter were not before the Court.

On Wednesday 8 June 2016, Mr Attapallil responded to Nicholas Cohen in these terms:

Mr Nicholas Cohen replied to Mr Attapallil’s email on the same day. He wrote:

On 1 July 2016, Mr Attapallil filed a Notice of Motion in the Local Court supported by an affidavit, on behalf of Ms Huang seeking the following orders in relation to this dispute over costs articulated in correspondence between the solicitors:

Notwithstanding Ms Huang’s affidavit evidence - that Mr Attapallil acted for her from 12 April 2016 onwards - a Notice of Appointment of Solicitor appointing Mr Attapallil as Ms Huang’s solicitor in this matter was first filed on 9 June 2016.

A Notice of Intention of Ceasing to Act was filed by Mr Attapallil on 19 July 2016.

By Statement of Claim filed on 30 March 2016 in the District Court Drumm proceedings, Ms Huang sought various forms of relief against Mr Drumm. Inter alia, Ms Huang pleaded that Mr Drumm had breached the fiduciary duty and the duty of care which he owed to the Trust in his role as trustee, and that Mr Drumm had also breached the Australian Consumer Law. The third defendant, Mr Thornley, is the solicitor on the record who was acting for Mr Drumm in the District Court.

On 29 April 2016, Mr Drumm filed a Notice of Motion seeking that the District Court Drumm proceedings be permanently stayed pursuant to s 17 of the Trans-Tasman Proceedings Act 2010 (Cth). Mr Thornley swore an affidavit on 28 April 2016 setting out matters relevant to that Notice of Motion, including matters obtained from his client’s instructions.

On 6 May 2016, Ms Huang sent the pleadings which she had already filed in the District Court Drumm proceedings via email to Mr Assi. Mr Assi deposed that this was the first time that he saw the pleadings, which had been filed by Ms Huang herself, in the District Court Drumm proceedings. Mr Assi deposed that the legal representatives listed on those pleadings was “Lexes Lawyers”.

In an earlier email, Ms Huang had sent those pleadings to the fourth defendant, Dr Geoff O’Shea.

I infer from the inclusion of the second defendant, Mr Assi, and the firm of solicitors Lexes Lawyers as addressees in that email of 6 May 2016, that ILCB had conducted research pursuant to its agreement with Ms Huang, and had recommended that she engage Lexes Lawyers to act for her in the District Court Drumm proceedings.

On 10 May 2016, Dr O’Shea sent an email to Ms Huang and Lexes Lawyers providing legal advice in relation to Mr Drumm’s Notice of Motion seeking a permanent stay of the District Court proceedings.

In essence, Dr O’Shea advised Ms Huang that he believed that Ms Huang would be unsuccessful in opposing the Motion and that, if it was possible for Ms Huang to “walk away” from the Motion, she should “favourably consider that course of action”. Dr O’Shea also advised that the adverse cost consequences against Ms Huang would be significant if Ms Huang was unsuccessful in opposing the Motion.

Also on 10 May 2016, Dr O’Shea sent to Mr Attapallil, the “principal solicitor” of Lexes Lawyers, a Disclosure and Costs Agreement which covered legal services that Dr O’Shea would provide from 10 May 2016 onwards with respect to the Notice of Motion in the District Court Drumm proceedings. I infer from this document that Dr O’Shea had been engaged by Lexes Lawyers to represent Ms Huang in the District Court Drumm proceedings, although the copy of that document before the Court was neither dated nor signed by a representative of Lexes Lawyers.

Dr O’Shea also commented in this letter:

On 12 May 2016, Dr James Gibson sent an email to Dr O’Shea, Mr Assi, Ms Huang and the general email address for Lexes Lawyers, directing some questions to Dr O’Shea about the advice that he had provided in his letter and email of 10 May 2016. These questions were responded to by Dr O’Shea in letter form and addressed to Mr Attapallil on 15 May 2016.

In mid-May 2016, Mr Assi deposed that he had a conversation with Dr Gibson, in which Dr Gibson said to Mr Assi:

Mr Assi deposed that, shortly after receiving Dr O’Shea’s advice about the Notice of Motion in the District Court Drumm proceedings, he had the following conversation with Dr Gibson:

Mr Assi deposed that, despite requests of Dr Gibson to provide documents that would support Ms Huang’s opposition to the Notice of Motion, Dr Gibson failed to provide those documents.

On 6 July 2016, Ms Huang sent an email to Mr Assi, the Lexes Lawyers general email address, and Dr O’Shea asking for an update on the District Court Drumm proceedings, and asking for confirmation as to whether her appearance on the Notice of Motion was required.

Mr Assi responded to Ms Huang’s email on the same day, confirming that Ms Huang was not required to come to Sydney for the hearing, but stating that it was necessary for Dr Gibson to provide the relevant documents to Lexes Lawyers in support of their opposition to the Motion. Mr Assi also confirmed that her “legal team” intended to apply for an adjournment to permit her barrister, “Charles” (a reference to Charles Alexander, another barrister retained to advise Ms Huang) to complete his legal advice to her regarding the further progress of the matter.

On 8 July 2016, Williams DCJ ordered that the District Court Drumm proceedings be permanently stayed pursuant to s 17 of the Trans-Tasman Proceedings Act. Ms Huang, although not present in Court for the hearing of the Motion, deposed in her affidavit that she believed that the permanent stay was granted due to the incompetence of Mr Assi and Mr Attapallil which lead to Mr Drumm’s application to be heard practically uncontested.

On 10 October 2016, Ms Huang filed a Summons Seeking Leave to Appeal the decision of Williams DCJ.

On 9 July 2016, Ms Huang sent a letter to Mr Attapallil requesting an explanation for the outcome of the hearing on 8 July 2016.

On 19 August 2016, McLoughlin DCJ ordered that the District Court Drumm proceedings be stayed until further order of the Court pending the determination of Ms Huang’s appeal against the orders made by Williams DCJ on 8 July 2016.

On 29 May 2017, at a directions hearing before the Registrar of the Court of Appeal, Ms Huang’s appeal to the Court of Appeal was allowed by consent, and orders were made in accordance with Short Minutes of Order, to the effect that:

On 28 June 2016, shortly before the hearing in the District Court before Williams DCJ, Mr Nicholas Cohen of Lander and Rogers Lawyers mistakenly sent an email to Dr James Gibson instead of to Mr Attapallil, who was the intended recipient. That email read:

It is not clear on which date Ms Huang was made aware of the contents of this email. Nevertheless, it was clearly the impetus for Ms Huang filing a Summons in the District Court against Mr Attapallil, Mr Assi and Mr Thornley in proceedings number 2016/223849 (“the Attapallil proceedings”) on 25 July 2016. The detail of these proceeding is discussed later in the judgment. It was also the imperative for these current proceedings.

According to her affidavit, Ms Huang deposed that it was her conclusion that:

This belief of Ms Huang that Mr Thornley on one hand, and her representatives, Mr Assi and Mr Attapallil on the other (later including Dr O’Shea), colluded to act against her interests in the District Court Drumm proceedings, including an allegation of perjury on the part of Mr Thornley in an affidavit he swore in the proceedings, is at the heart of the current proceedings. It is the basis for all the relief which is sought.

On 10 July 2016, Ms Huang sent a letter to Mr Assi describing her concerns about his conduct of her legal affairs, in particular the failure of Mr Attapallil to successfully contest Mr Drumm’s Notice of Motion in the District Court Drumm proceedings to transfer the proceedings to New Zealand.

Inter alia, Ms Huang expressed concern about the lack of expediency with which she perceived her matters had been attended to by Mr Assi and Mr Attapallil, and requested that Mr Assi contact her to arrange a meeting so that they could discuss the issues in person.

In this regard, Ms Huang requested that Mr Assi explain why affidavits that she had completed and signed had not been edited so as to comply with the Evidence Act 1995 and then filed in the District Court Drumm proceedings.

On 11 July 2016, Mr Assi sent a letter in reply to Ms Huang’s letter of 10 July 2016. In his letter, Mr Assi emphasised that he was not a lawyer, and that the agreement between Ms Huang and ILCB described his services as a broker sourcing legal representation, and not as a solicitor. Mr Assi also explained matters which he perceived to be relevant to the transfer of the District Court Drumm proceedings to New Zealand. Mr Assi said:

On 11 July 2016, Mr Attapallil also wrote a letter to Ms Huang in reply to Ms Huang’s letter dated 9 July 2016. Mr Attapallil wrote:

In a further letter dated 13 July 2016, Mr Attapallil wrote to Ms Huang, advising her of the status of the Local Court Drumm proceedings. He wrote:

On 15 July 2016, Ms Huang replied to Mr Attapallil’s letter of 13 July 2016. Ms Huang made the following complaint in her reply:

Ms Huang also made the following comments about the Notice of Motion to transfer the District Court Drumm proceedings to New Zealand:

Ms Huang also wrote a letter dated 17 July 2016, however it was not made available to the Court.

On 18 July 2016, Mr Attapallil wrote to Ms Huang, enclosing two Notices of Intention to File Notice of Ceasing to Act in the District Court Drumm proceedings and in the Local Court Drumm proceedings. In his letter, Mr Attapallil wrote:

On 22 July 2016, Mr Assi wrote an email to Ms Huang urging Ms Huang to obtain legal advice before she proceeded any further with her matters, and cautioning her against taking the advice of Dr Gibson over that of legal practitioners.

On 23 July 2016, Ms Huang wrote a letter in reply to Mr Assi’s email of 22 July 2016. In this letter, Ms Huang accused Mr Assi of:

Ms Huang also noted in her letter that:

On 25 July 2016, Mr Assi replied to Ms Huang’s letter of 23 July 2016, formally putting Ms Huang on notice that he would commence legal proceedings against Ms Huang for any loss and damage incurred by him as a consequence of Ms Huang’s allegations against him.

On 25 July 2016, the plaintiff filed a Summons in the District Court in the Attapallil proceedings, undoubtedly in response to the Cohen email and the correspondence which followed between Ms Huang, Mr Assi and Mr Attapallil. Similar allegations against the same parties as exist in the current proceedings were made in the Attapallil proceedings.

On 2 August 2016, Mr Thornley wrote to Ms Huang outlining various issues with the Summons filed in the Attapallil proceedings, inviting her to withdraw the Summons without costs being sought, and informing her that indemnity costs would be sought if she did not withdraw the Summons.

Mr Thornley also wrote in his letter of 2 August 2016, the following:

On 8 August 2016, Ms Huang replied to Mr Thornley’s letter of 2 August 2016, rejecting the contentions made by Mr Thornley in that letter and declining to withdraw the Summons.

The matter proceeded, and the plaintiff filed a number of Notices to Produce and an Amended Summons.

On 10 October 2016, Mr Thornley, the third defendant, filed an Amended Notice of Motion seeking orders that the Attapallil proceedings be dismissed or, in the alternative, that the Summons be struck out. He also sought an order for indemnity costs against the plaintiff in addition to an order that the two Notices to Produce be set aside.

On 8 November 2016, the plaintiff filed a Notice of Motion seeking orders to the effect that the Attapallil proceedings be stayed while the plaintiff pursued the matter in the Supreme Court or, in the alternative, an order that the Attapallil proceedings be transferred to the Supreme Court.

On 11 November 2016, Gibb DCJ dismissed the plaintiff’s Summons filed on 25 July 2016, dismissed the plaintiff’s Notice of Motion filed on 8 November 2016 seeking an order to transfer the proceedings to the Supreme Court, and ordered the plaintiff to pay the defendants’ costs of the Attapallil proceedings on an indemnity basis.

On 14 November 2016, the plaintiff filed a Notice of Motion seeking a stay of the costs orders made by Gibb DCJ on 11 November 2016. A Notice of Intention to Appeal against all of Gibb DCJ’s orders was also filed on that day. On 30 November 2015, Gibb DCJ heard the proceedings on the Notice of Motion dated 14 November 2016, and altered the orders that her Honour had made on 11 November 2016 to provide for the plaintiff depositing the moneys into the third defendant’s solicitor’s controlled money account.

On 17 July 2017, the Court of Appeal heard and determined Ms Huang’s application for leave to appeal against the orders made by Gibb DCJ. White JA (Meagher JA agreeing) refused leave to appeal, finding no error in the decision made by Gibb DCJ: see Huang v Attapallil & Ors [2017] NSWCA 181.

Mr Thornley alleged in his submissions that in the Summons filed in the current proceedings, Ms Huang seeks substantially the same relief as she sought in the Attapallil proceedings which were properly dismissed by Gibbs DCJ.

On 15 November 2016, solicitors for Mr Thornley wrote to Ms Huang concerning the Summons that she had filed in the current proceedings, making essentially the same invitation that was made to the plaintiff in the Attapallil proceedings. This letter also set out comprehensively the grounds upon which the third defendant’s solicitors objected to the Summons filed in the current proceedings.

It is convenient to first identify the relevant legal principles applicable to the relief sought by each of the defendants, namely that the Summons be summarily dismissed or else struck out.

The legal principles which govern the summary dismissal of proceedings are clear. I have discussed them fully in many other cases, some of which are: Hopkins v Governor General of Australia [2013] NSWSC 1068; Gillies v Eastlake [2014] NSWSC 611 and ANZ Banking Group Ltd v Evans [2016] NSWSC 1742. It is sufficient to say, in short, that before a proceeding can be summarily dismissed, a power which is to be sparingly exercised, the Court has to be satisfied that there is no arguable fact or matter in the proceedings which ought to be heard at a final hearing. The case must be a very clear one to justify the exercise of the discretionary power.

Because these current proceedings were commenced by Summons and not by a statement of claim, consideration of the issue of summary dismissal include considering the evidence placed before the Court on the motions but recognising that the nature of the proceedings is as described in submissions by the parties, rather than the nature being evident from the pleadings themselves.

It is appropriate to first consider the Thornley conduct claims and the Uniform Law claims. They can be considered together. Each involves a consideration of the Uniform Law.

Ms Huang submitted that the Supreme Court was empowered to make the declarations which she seeks in her Summons of 8 November 2016 due to the operation of the Court’s jurisdiction as defined in s 23 of the Supreme Court Act 1970 (NSW) (“Supreme Court Act”) as extending to “all jurisdiction which may be necessary for the administration of justice in New South Wales”.

Ms Huang also pointed to s 75 of the Supreme Court Act, which provides:

Ms Huang further submitted that Part 65A of the Supreme Court Rules 1970 (“Supreme Court Rules”) confers upon the Supreme Court a supervisory jurisdiction to uphold the obligations which are conferred upon solicitors and barristers of the Court. Part 65A is in these terms:

Although Ms Huang did not specifically refer to it, it is clear that this Court has inherent jurisdiction with respect to any lawyer whose name is on the Roll of Legal Practitioners held by the Court.

On the issue of standing, Ms Huang submitted that she has a special interest in the issues which she raises in her Summons of 8 November 2016 upon either of the two bases to which Buckley J makes reference in Boyce v Paddington Borough Council [1903] 1 Ch. 109 at 114:

In the High Court’s decision in Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493, Stephen J commented at 537, citing the above passage of Boyce:

Referring to those authorities, Ms Huang submitted that a private individual can be a plaintiff if the public law right “particularly affects him or her”, and therefore that she has standing to seek the orders which she seeks, because she is particularly affected by the inadequate, and corrupt performance of the defendants.

Mr Thornley’s primary submission in support of the Notice of Motion is that Ms Huang does not have standing, as a private citizen, to seek the relief which she claims in the current proceedings, and therefore that the proceedings are an abuse of process because they have no prospects of success: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; In the matter of Bevillesta Creditors' Trust [2013] NSWSC 162; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91.

As well, he submitted that the relief sought by declaration concerns conduct which would not be properly regarded as the proper subject matter for declarations e.g. breaches of the criminal law. The defendants also noted in their submissions, particularly with respect to the legislation relating to the legal profession that in so far as Ms Huang relied upon the Legal Profession Act 1987, and the Legal Profession Act 2004, as the basis for the relief which she claimed, both of those pieces of legislation had been repealed and were no longer in effect.

In relation to the Thornley conduct claims and the Uniform Law claims that Ms Huang makes, Mr Thornley submitted that Ms Huang is not permitted to commence proceedings for any breach committed under the Uniform Law due to her status as a private citizen, and that, further, Ms Huang has no standing to pursue such action in the absence of a statutory right to do so. Mr Thornley does not accept that there is any prospect that any breach by him of the Uniform Law would be established. The other defendants adopt a similar position.

In support of his principal argument about standing, Mr Thornley pointed to the comments of Gibbs J in Australian Conservation Foundation Inc at 526, namely:

Mr Thornley submitted that Ms Huang could not have and does not have a relevant interest as described by Gibbs J in Australian Conservation Foundation Inc at 530‑531:

Mason J, agreeing with Gibbs J, said at 548:

Attention was drawn to the fact that the rule in relation to standing as described by Gibbs J and Mason J was approved by the High Court in Shop Distributive and Allied Employees Association v The Minister for Industrial Affairs (SA) [1995] HCA 11; (1995) 183 CLR 552, where the majority (Brennan, Dawson, Toohey, Gaudron, and McHugh JJ) held at 558:

Mr Thornley submitted that it is clear that no private right of Ms Huang has been interfered with as a result of the conduct which she impugns in her Summons. Therefore, he submitted, Ms Huang would only have standing if she can establish either that she has statutory right to bring the action, or that she has a special interest in the action.

Mr Thornley submitted that Ms Huang “would gain no advantage, other than personal satisfaction, if the [fourth] declaration sought was made”, and therefore that Ms Huang has no special interest in the relief sought in respect of the Thornley conduct claims.

Moreover, the third defendant pointed to the provisions of the Uniform Law, and said that it provides for a clear mechanism for the consideration and investigation of complaints against the members of the profession which excludes private citizens from its operation. Therefore, he submits that Ms Huang does not have a statutory right to bring the action which she does.

Chapter 5 of the Uniform Law is, as Mr Thornley submitted, dedicated to “Dispute resolution and professional discipline”. Section 260 states that the objectives of the Chapter are:

Section 267 provides for a complaint process, whereby any person or body may make a complaint to the “designated local regulatory authority”, including the body itself. The “designated local regulatory authority” is defined in s 6 of the Uniform Law as “a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used”.

Section 11 of the Legal Profession Uniform Law Application Act 2014 (NSW) (the “Application Act”) provides that the designated local regulatory authority for the purposes of Chapter 5 of the Uniform Law is the “NSW Commissioner”, which is defined in s 3 as “the person holding office or acting as Legal Services Commissioner under Division 2 of Part 3”.

Section 282 empowers the designated local regulatory authority to investigate the whole or part of a complaint, and to appoint a suitably qualified person to conduct a complaints investigation generally, or in relation to a particular law practice, or in relation to a particular complaints investigation.

Section 300 of the Uniform Law further provides that the designated local regulatory authority may initiate and prosecute proceedings against a respondent lawyer in the designated tribunal if the designated local regulatory authority is of the opinion that either the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the designated tribunal, or the alleged conduct may amount to professional misconduct.

These sections, it is submitted, clearly establish differing statutory bodies whose purpose is to uphold the professional standards of the legal profession. The body in NSW is the Legal Services Commissioner, who is empowered to prosecute members of the profession for unsatisfactory professional conduct or professional misconduct, in addition to investigating complaints made against members of the profession. While a “suitably qualified person” can be appointed by the Legal Services Commissioner pursuant to s 300 of the Uniform Law, which is usually one of the two relevant professional associations, it makes no provision for the participation of private citizens in any of the above processes, aside from being the person who chooses to make the initial complaint pursuant to s 267. The right to make a complaint is given to the public at large.

On this issue, the fourth defendant, Dr O’Shea, also drew the Court’s attention to s 14 of the Uniform Law, which provides:

Dr O’Shea submitted that this section demonstrated a clear legislative intention that relevant complaints be directed to the Legal Services Commissioner, and therefore that Ms Huang did not have a statutory right to seek the declarations that she does in her Summons.

With respect to the Uniform Law claims, the second defendant, Mr Assi, submitted that if Ms Huang wished to allege against the second defendant that the second defendant had improperly provided legal services, and charged for them, when he was not legally permitted to do so, it would be open to her to commence an appropriate action in the Local Court against him seeking damages, or else monetary relief, articulated by Statement of Claim.

The second defendant also objected to the form of the order due to the manner in which the proceedings had been commenced, that is, that proceedings had been commenced against the second defendant in person, and not the defendant company, ILCB, and that they were rolled up with a number of unrelated matters.

The second defendant characterised that order as an action in the abstract which sought only hypothetical relief. The second defendant then took the Court to the decision of Ferguson J (as the Chief Justice then was) in Melbourne City Investments Pty Limited v Worley Parsons Limited [2014] VSC 303, which he cited as authority for the proposition that a declaration seeking an abstract order was an abuse of process. The second defendant drew particular attention to [6] of Ferguson J’s judgment, where her Honour said:

In support of her Honour’s conclusion that a court will not grant relief if a declaration will not produce any foreseeable consequences for the parties, her Honour drew attention in her judgment to Boyce v Paddington Borough Council at 114 (cited with approval by Gibbs J in Australian Conservation Foundation Inc), and noted that declaratory relief will also not be granted if the question is purely hypothetical: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 582.

The relevant passage of Ainsworth (per Mason CJ, Dawson J, Toohey J and Gaudron J) at 581-582 reads:

The decision in Ainsworth was applied by Hall J in McMillan & Anor v Director‑General of Communities NSW [2009] NSWSC 1440. Those proceedings concerned two complaints made by the Commissioner of Police and Manly Council that the quiet and good order of the neighbourhood in Manly was being unduly disturbed. The plaintiffs were the licensees of the two hotels which were subject of the complaints. The plaintiffs sought that a declaration be made that the complaint by the Commissioner of Police was not a valid complaint.

The plaintiffs submitted that that order had “utility” as described in the decisions of Ainsworth and Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82. In the plaintiff’s submission such an order would determine a matter which was not hypothetical but which involved the resolution of a legal controversy as to whether the complaint fell within s 79(1) of the Liquor Act 2007 (NSW).

In rejecting the plaintiffs’ submissions in McMillan, Hall J said at [17]-[18]:

The second defendant submitted that the Uniform Law relief was similar to that sought in McMillan and that the claims ought to be dismissed.

It is clear that the Uniform Law does not provide for the involvement of a private citizen in the prosecution of any relevant breaches of legal professional standards beyond the making of an initial complaint to the relevant regulatory body and then, if required, taking part as a witness in proceedings. Following the lodging of a complaint, the process is managed by the statutory bodies nominated in s 11 of the Application Act. There is no provision which obliges or permits (without specific invitation) a private citizen to make submissions to the relevant authority, or any other provision which would indicate a legislative intention to enable members of the community to participate in the decision making process surrounding disciplinary investigations as established by the Uniform Law and the Application Act.

The clear implication of this statutory framework is that it was the legislative intention that a private citizen would not have standing to pursue a legal professional for breaches of the Uniform Law.

I am also satisfied that Ms Huang does not have a “special interest” in the matters which she raises by way of the Thornley conduct claims and the Uniform Law claims. She has not made a complaint under s 267 of the Uniform Law to enliven the jurisdiction of the Legal Services Commissioner. The extent of Ms Huang’s interest in the relief which she seeks is that she is the plaintiff in the proceedings in which she alleges that the misconduct occurred.

The test to be applied as to whether this limited interest qualifies as a “special interest” of the kind needed to enliven Ms Huang’s standing to seek the order which she does is whether Ms Huang is likely to gain an advantage of a tangible kind other than merely an intellectual satisfaction, or that she is likely to suffer a real and not hypothetical disadvantage if her action fails (other than an order for costs) as described by Gibbs J in Australian Conservation Foundation Inc in the passage from his judgment set out above at [101].

If Ms Huang was granted the relief which she seeks in respect of these two sets of claims, she would gain no advantage apart from the righting of a wrong which she perceives to have occurred. her action was to fail, Ms Huang would not suffer a disadvantage which would go beyond the sense of grievance which she evidently feels as a result of Mr Thornley’s impugned conduct and the conduct of the other defendants.

As a result, I am satisfied that Ms Huang has neither a statutory right under the Uniform Law, nor a “special interest” sufficient to give her standing to seek the relief by way of the Thornley conduct claims and the Uniform Law claims.

This conclusion about the absence of standing of Ms Huang to seek relief under the Uniform Law, and that she does not have a special interest in seeking relief under the Uniform Law, is applicable to both the Thornley conduct claims and the Uniform Law claims because the relief sought in those claims is founded on the Uniform Law and the obligation of lawyers pursuant to that legislation.

The determination of the legal question is not attended by any factual controversy nor is it one about which there is any doubt. It is an entirely suitable matter to be dealt with by an application for summary disposal. No party contends otherwise.

It is also necessary to note that, with respect to the first, second and fourth defendants who were retained pursuant to an agreement, although inferentially different agreements for the provision of different services, this determination about the absence of standing does not affect any claim which may rest on a contractual or tortious basis. That is because no such claim is articulated in the current proceedings. Whether such a claim may in fact exist is not a matter upon which I express any view. It would be inappropriate so to do. The point to be made is simply that such causes of action form no part of the current proceedings.

The question, therefore, with respect to the relief which Ms Huang seeks in relation to the second defendant, is whether the subject matter of the declaration (that is, the second defendant’s conduct in providing services to Ms Huang which she contends were, in effect, legal services, when she alleges that the second defendant was not qualified to provide such services) is an act which carries with it either legal significance or practical consequences. Declaratory relief will only be granted if the relief is directed to the determination of legal controversies, and not to answering abstract or hypothetical questions.

In Ainsworth, reputational damage was a tangible enough consequence to prevent the declarative relief sought from being characterised as merely “hypothetical”. In McMillan, the question of whether a complaint was compliant with the relevant statute was characterised as not enlivening the Court’s jurisdiction to make the relevant declaration because the making of the declaration would have no “utility”. Aala’s case contrasts “utility” with a declaration which has “no legal effect” or from which no continuing legal consequences will flow.

The relief which Ms Huang seeks has sufficient similarities with McMillan, in the sense that it concerns a legal question (whether the services provided by either Mr Assi or ILCB were properly characterised as “legal services”). In other words, the relief sough in the Uniform Law claims against Mr Assi, is hypothetical and without utility.

In the current proceedings, with one exception, the relief arising from the Uniform Law claims relate to the payment of costs in proceedings which have already been determined adversely to Ms Huang and in which costs orders have been made. That relief does not relate directly to the declarations sought with respect to the Uniform Law claims and can, and ought, properly be sought if it is legally soundly based in those proceedings by application to the judge who heard the proceedings, or else on appeal from those proceedings. Such relief is not appropriate in proceedings of this kind where this Court is asked, in effect, to set aside substantive orders of the other Court when it has no jurisdiction so to do.

The only definitive order standing apart from issues of costs which is sought by Ms Huang with respect to the Uniform Law claims is that seeking an order for the second defendant be restrained from providing legal services. This order is unconstrained and applies by its terms to benefit the public at large. For the reasons expressed earlier with respect to the Thornley conduct claims, Ms Huang has no standing to seek such relief and no sufficient interest over and above a member of the general public.

The Thornley conduct claims and the Uniform Law claims cannot be brought by Ms Huang because she has no standing so to do, and are hypothetical. They are without merit and ought be summarily dismissed pursuant to the Court’s discretion in r 13.4 of the UCPR.

If I had not reached such a conclusion, having regard to the nature of the application including claims of corruption, it would have been appropriate to have ordered that the plaintiff plead fully her allegations by way of a statement of claim.

It is necessary now to consider whether the criminal conduct claims are liable to be summarily dismissed.

Some of the relief sought by Ms Huang include declarations that the conduct of the defendants variously breached ss 319 and 327 of the Crimes Act.

The second declaration sought by Ms Huang relates to the second defendant and claims that he acted contrary to s 178BA of the Crimes Act and obtained money by deception. The difficulty for Ms Huang with her reliance on this statutory provision is that it was repealed with effect from 22 February 2010 by Schedule 2 of the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009. Any reliance upon a contravention of this section is entirely misplaced.

Section 319 of the Crimes Act is the provision dealing with perversion of the course of justice. It is in the following form:

Section 327 of the Crimes Act is the provision creating the offence of perjury. It reads:

In support of his argument that Ms Huang does not have standing to seek relief in relation to the offence of perjury, Mr Thornley drew attention to s 338 of the Crimes Act, which is in the following terms:

The third defendant submitted that Ms Huang has not sought the leave of the trial Judge who heard the District Court Drumm proceedings, neither has she sought leave of this Court to prosecute either Mr Attapallil or him for perjury. The third defendant accepted that subject to first obtaining an appropriate grant of leave and the giving of due notice to the Director of Public Prosecutions, it was open to Ms Huang to privately prosecute by information either defendant for perjury: s 14 Criminal Procedure Act 1986 (NSW).

Nevertheless, the third defendant submitted that Ms Huang did not have standing to bring these civil proceedings seeking relief in the Summons and that, accordingly, the maintenance of the proceedings, are an abuse of process particularly where Ms Huang had been put on notice that the various orders that she sought were not maintainable at law.

In a letter sent to Ms Huang by solicitors for the third defendant on 2 August 2016, the third defendant addressed the deficiencies which it perceived with the Amended Summons which Ms Huang had filed in the Attapallil proceedings. That letter read as follows:

Solicitors for the third defendant also sent a further letter to Ms Huang on 16 September 2016, outlining issues with the Amended Summons filed in the Attapallil proceedings which raise identical issues to those raised in the current proceedings. The relevant parts of that letter were as follows:

The third defendant submits that the correspondence adequately articulated sufficient reasons for the summary dismissal of the proceedings and that Ms Huang had been put on notice with regards to the issues with her Summons in both the Attapallil proceedings and the current proceedings, leaving aside any jurisdictional issues which were dealt with by Gibb DCJ when the Attapallil proceedings were dismissed in the District Court for want of jurisdiction.

It is on this basis that the third defendant puts its argument that the Supreme Court proceedings constitute an abuse of process, with respect to the criminal conduct claims.

Speaking generally, the breach of a criminal law, if able to be proved results in a criminal prosecution which if successful, produces a conviction (or else an order under s 10 of the Crimes (Sentencing Procedure) Act 1999). Where a conviction ensues the individual is sentenced to an appropriate punishment which may, or may not, include a term of imprisonment. It is in this way that a civilised society addresses criminal behaviour.

Such criminal proceedings are resolved by applying the criminal onus of proof, namely proof beyond reasonable doubt. As well, the laws of evidence which apply to criminal proceedings have some provisions which differ from those applicable in civil proceedings.

The current proceedings are civil proceedings. The onus of proof is and remains one on the balance of probabilities, upon which it is significantly easier for a plaintiff to succeed. That is why, except for some particular Estate proceedings, or else proceedings related to some insurance policies, courts generally do not make declarations about the commission of criminal conduct.

If Ms Huang were to succeed in obtaining any of the declarations sought with respect to criminal conduct they would be meaningless. A different onus will have been applied by the Court in considering whether the acts justified the conclusions underlying the declarations sought.

No conviction would result. The Court could not do any act consequent upon such declaration in either is criminal or civil jurisdiction. The declarations would not bind the Director of Public Prosecutions to prosecute any of the defendants. Of themselves, they would not necessarily be persuasive to the Director. The fact of the declarations, without more, would not engage the jurisdiction of the Legal Services Commissioner, unless a complaint was made about the substantive conduct. But such a complaint can be made without the necessity to obtain any declarations.

Any declaration made with respect to commission of perjury would not require the plaintiff to follow any of the procedural steps set out in s 338 of the Crimes Act.

In all of the circumstances, the seeking of the relief with respect to the criminal conduct claims is doomed to fail. There is no basis for Ms Huang to bring the current proceedings with respect to the criminal conduct claims.

For these reasons, I conclude with respect to all of the relief sought in the current proceedings that Ms Huang cannot succeed, and the whole proceedings against all defendants should be summarily dismissed.

During the course of proceedings on 2 December 2016, Ms Huang sought leave to file in Court an Amended Summons.

The effect of that Amended Summons is to add some further orders to those which are presently sought by Ms Huang. The additional orders are that:

The second order present in the initial Summons, that the second defendant be restrained from providing legal services, is also amended to have the words “as a matter of public good and in further protection of the community” added to the end of the order. It is not clear that these words add anything of substance to the existing order.

Ms Huang submitted that the Court has power to exercise its discretion to permit an amendment of pleadings pursuant to s 64(3) of the Civil Procedure Act. The propose amendments do nothing to cure the fundamental defects in the existing Summons. They do not address any matters of substance. It is not in the interests of justice that Ms Huang ought to be allowed to amend, in the way proposed, an already defective pleading.

The application by Ms Huang to file an Amended Summons must be dismissed.

It is appropriate to add an additional basis for my conclusion to summarily dismiss the proceedings.

Consistently with the remarks of White JA in Huang v Attapallil [2017] NSWCA 181 at [6], the current proceedings are properly to be described as “satellite litigation”. They relate to, and arise from the unfavourable result which Ms Huang obtained in the District Court Drumm proceedings. The various allegations relate to the conduct of the defendants in undertaking their respective roles in those proceedings, which Ms Huang asserts caused her to lose those proceedings.

As a result of the appeal to the Court of Appeal by Ms Huang from the decision in the Drumm District Court proceedings, the adverse result obtained by Ms Huang has been set aside, and the proceedings have been transferred to this Court.

They have not yet been determined. They will be determined fully on the evidence presented and Ms Huang will have a proper opportunity to put such submissions as she may wish to.

In those circumstances, even if the current proceedings were to be heard, it would not be appropriate to do so until after the District Court Drumm proceedings are finally determined in this Court. The proceedings as presently formulated bear no relationship to any future, and at present unknown, outcome of the substantive proceedings.

At all times, satellite litigation of the kind in the proceedings must be carefully scrutinised to ensure that the overriding purpose in s 56 of the Civil Procedure Act is promoted. As well, it needs also to be carefully examined to ensure that it is not vexatious or oppressive. Particularly is this so where the underlying substantive proceedings are yet to be finally determined.

These remarks indicate that, had I not reached the conclusions earlier expressed, I would have concluded that in all the circumstances the continuation of these proceedings in their current format was vexatious and an abuse of process. Such conclusion would also lead to their dismissal.

The Court orders: