Martin v Ross & Ors; Martin v Vardanega & Ors

These reasons deal with three notices of motion brought in connection with two proceedings brought by Lynette Martin (‘the plaintiff’).

The first proceeding, commenced by statement of claim filed 5 October 2022, claims $50 million from those associated with a company known as Julia Ross Personnel Pty Ltd (‘Julia Ross’). Only the third, fourth and fifth defendants have filed notices of appearance in the substantive proceedings. For ease of reference, I will describe these proceedings as the ‘Julia Ross proceedings’.

The second proceeding, commenced by statement of claim also filed on 5 October 2022, claims $30 million against six lawyers who acted for, or against, her in personal injury litigation arising out of an accident that is alleged to have occurred in July 1996. Only the first, second and third defendants have filed notices of appearance in the substantive proceedings. For ease of reference, I will describe these proceedings as the ‘Vardanega Roberts proceedings’.

Each motion seeks summary relief or, alternatively, that the statement of claim be struck out: in the Julia Ross proceedings, the motions are brought by the third, fourth and fifth defendants; in the Vardanega Roberts proceedings, the motion is brought by the first, second and third defendants.

In my view, the primary orders sought by the moving parties should be made.

I will cover the facts in five parts. The first part deals with the accident that occurred on or around 3 July 1996, and the common law and workers compensation proceedings that were commenced in consequence of the injury allegedly suffered in that accident. The second part deals with Julia Ross, and the individuals that have been involved in the Julia Ross proceedings. The third part deals with the 2020 proceedings. The fourth part deals with the allegations in Julia Ross proceedings. The fifth part deals with the allegations in Vardanega Roberts proceedings.

What follows reflects my findings across the matters of background.

On 3 July 1996 the plaintiff suffered an injury to her back whilst lifting heavy boxes. In or around 1997, she commenced proceedings in the District Court against her employer, Julia Ross and against the company where she was working, Gow Gates Insurance Brokers Pty Ltd (‘Gow Gates’), claiming damages for the injuries and loss alleged to have been suffered in consequence of sustaining that injury. The plaintiff had been directed to that place of work by Julia Ross with whom she had registered for temporary employment. (During the course of the hearing in the District Court, the plaintiff amended the statement of claim to allege that the injury suffered occurred on 3 and 4 July 1996. Nothing turns on the precise date of when the incident giving rise to this injury occurred).

The plaintiff retained a firm of solicitors, Gerard Malouf & Co to represent her. Julia Ross were represented by a firm of solicitors, Vardanega Roberts – and they were appointed by its statutory workers compensation insurer, Allianz Australia Insurance Ltd. The partners of that firm, and a solicitor who was employed by them at that time, are the first, second and third defendants to the Vardanega Roberts proceedings. (Unless necessary to distinguish between the solicitors who are defendants to the plaintiff’s claim, I will describe them as ‘the solicitors’).

By way of judgment delivered 16 February 2000, Acting Judge Boyd-Boland dismissed the plaintiff’s claim – essentially on the basis that it had not been established that the boxes the plaintiff lifted at the time that she suffered her injury were unreasonably heavy.

In 2001, the plaintiff filed an Application for Determination in the Compensation Court seeking compensation in connection with the injury that the plaintiff alleged occurred on 3 July 1996 whilst she was working for Julia Ross at Gow Gates. The plaintiff was represented by the same solicitors, and Julia Ross continued to be represented by Vardanega Roberts – who, again, had been appointed by Allianz.

The proceedings in the Compensation Court were listed for hearing before Judge Burke on 11 September 2003. The plaintiff was represented by counsel (who is the fourth defendant in the Vardanega Roberts proceedings), and Julia Ross was also represented by counsel (who is the fifth defendant in the Vardanega Roberts proceedings). The sixth defendant is a Senior Counsel who appears to have been joined in consequence of him appearing for the solicitors in proceedings before Schmidt AJ – discussed below. As I have earlier noted, the motions filed do not involve the fourth, fifth and sixth defendants.

On the date listed for hearing, the proceedings resolved by way of payment to the plaintiff the sum of $9,400 as medical expenses under s 60 of the Workers Compensation Act 1987 (NSW) (‘WCA’). (In addition to the settlement – and as part of it – agreed facts were prepared, as well as admissions: it is unnecessary to describe what had been agreed, and admitted).

On 13 November 2003, the plaintiff filed an Application against Gow Gates for permanent impairment compensation in the Workers Compensation Commission. The injury relied upon was the one that was allegedly sustained on 3 (or 4) July 1996.

It is necessary to say something about Julia Ross – the corporate structure, and the iterations of the business, as well as those connected to the business.

The plaintiff was employed by Julia Ross Personnel Pty Ltd (ACN 003 758 709) – the entity described in these reasons as ‘Julia Ross’. On 5 August 1999, Julia Ross changed its name to Julia Ross Recruitment Pty Ltd. In May, and later in August, 2000, that entity became an unlisted, but later a listed, public company. In 2003 it changed its name to Ross Human Directions Ltd – its current identity.

Neil Mitchell-Clark (the third defendant) worked for Julia Ross from around late November 1999 to mid-2005 as the Chief Financial Officer. For an extremely brief period of time – approximately 5 days in March-April 2000 – he was a director of Julia Ross. Mr Mitchell-Clark was also appointed company secretary in about April 2000. It is Mr Mitchell-Clark’s evidence that he was unaware of the plaintiff’s claim, emphasising that he had no need to be aware of the detail of what he described was a “routine matter”.

Fergus McDonald (the fourth defendant) was appointed a director of Julia Ross in April 2000. The evidence is silent on when he ceased holding that role. It is clear from his evidence, contained within his affidavit sworn on 3 December 2022, that he had no dealings with, or knowledge of, the plaintiff’s claim.

Frank Burke (the fifth defendant) was appointed a director of Julia Ross on 3 April 2000, and he ceased to be a director on 18 November 2005. Mr Burke was a non-Executive Director of the company, and he was not employed or engaged in the day-to-day management of its business activities.

Mr Burke suffers from Parkinson’s disease, and he has been afflicted with that condition since 1994; and he is also currently suffering from Lewy body dementia.

By statement of claim filed on 27 November 2020 in this Court, the plaintiff commenced proceedings, claiming $48 million in damages, against six defendants: three of the defendants were solicitors who she had retained to act for her in connection with her 1996 injury; and three of the defendants were the solicitors who represented Julia Ross in the District Court and workers compensation proceedings – the same three solicitors who are sued in the current proceedings as first, second and third defendants.

The “Relief Claimed” was expressed in these terms:

The plaintiff represented herself in those proceedings, and she drafted the statement of claim. It did not comply – even loosely – with the pleading requirements under the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’). It is not easy to follow what is alleged. It is unnecessary to attempt to do so, to any significant degree at the present time. That is because the claims against the first, second and fifth defendants were summarily dismissed by Schmidt AJ by orders dated 23 April 2021 (Martin v Malouf [2021] NSWSC 415), and the claims against the third, fourth and sixth defendants were permanently stayed by Elkaim AJ by orders dated 10 February 2023 (Martin v Malouf [2023] NSWSC 71). It is also because that task was undertaken, relevantly here, by Schmidt AJ.

Notwithstanding that the pleadings failed to disclose the basis for the claims made against the solicitors who represented Julia Ross, they were explained in the written and oral submissions, and in an affidavit in support filed by the plaintiff, on the solicitors’ application for summary relief. Schmidt AJ summarised and described the allegations in 2020 proceedings in these terms (at [13]):

In particular, as against the solicitors who represented Julia Ross, Schmidt AJ made the following further findings about the claims that were advanced against them by the plaintiff (at [23](11)-(12)):

Having distilled the claim against the solicitors who represented Julia Ross, Schmidt AJ went on to consider whether the proceedings disclosed a reasonable cause of action. Having found that the plaintiff had knowledge of the earlier workers compensation proceedings that resulted in the settlement in September 2003 (contrary to what the plaintiff alleged), Schmidt AJ made the following further findings (at [27]-[30]):

The dispositive conclusion of Schmidt AJ was then expressed in these terms (at [33]):

Schmidt AJ ordered that the proceedings against Mr Vardanega, Mr Roberts and Mr Studdert be dismissed (at [44]). No appeal was brought from the orders made by Schmidt AJ. At the hearing, the plaintiff advised that she had lodged an appeal “with the Gerard Malouf findings”: T25.14 – which I take to be that she has appealed from the orders made by Elkaim AJ.

The plaintiff has commenced proceedings against seven defendants in the Julia Ross proceedings.

As with the statement of claim filed in the 2020 proceedings and the statement of claim in the Vardanega Roberts proceedings, the plaintiff drafted the statement of claim in the Julia Ross proceedings. The pleading clearly fails to comply with the pleading requirements of the UCPR (like the statement of claim in the Vardanega Roberts proceedings: see [32]ff, below), and the pleading itself is not easy to follow, nor understand (also like the statement of claim in the Vardanega Roberts proceedings: see [32]ff, below). There are similarities between what has been claimed in these proceedings, and what is alleged in them, to what is alleged and claimed in the Vardanega Roberts proceedings – for example, the relief claimed is more or less the same, albeit that a greater amount of damages is claimed in these proceedings.

So far as can be discerned from the statement of claim, the ‘complaints’ and allegations of the plaintiff appear to be as follows:

The statement of claim filed in the Vardanega Roberts proceedings essentially seeks the same relief as the 2020 proceedings (see [22], above) – albeit that the lesser sum of $30 million is claimed, whereas in the 2020 proceedings the sum of $48 million was claimed.

As with the statement of claim filed in the 2020 proceedings and the statement of claim in the Julia Ross proceedings, the plaintiff drafted the statement of claim herself. As with the statement of claim filed in the 2020 proceedings and the statement of claim in the Julia Ross proceedings, the pleading is non-compliant with the pleading requirements contained in the UCPR, and what is alleged is not altogether easy to follow or comprehend.

The statement of claim was described, in the written submissions of the solicitors, as comprising “a series of discursive, rambling and incoherent allegations, made up of a mixture of contentions, submissions, references to (and extracts from) evidence, expressions of opinion and some statements of material facts” (submissions at [30]). I accept this to be a fair description of the pleading.

It appears, however, to involve the following essential allegations against the solicitors for Julia Ross:

The moving parties seek orders under rr 13.4(1)(a)-(c) of the UCPR – it is essentially said that no reasonable cause of action is disclosed or is otherwise an abuse of process – and, in the alternative, pursuant to rr 14.28(a)-(c) of the UCPR – the same arguments are deployed and, further, it is argued that the proceedings otherwise have a tendency to cause prejudice, embarrassment and delay by reason of the manner and form of the pleading.

The power to grant summary relief is contained in r 13.4 of the UCPR. It provides:

A purpose of r 13.4 is to “save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings” and to protect “the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications”: Ugur v Attorney-General for NSW [2019] NSWCA 86 at [70] (White JA, Meagher and Brereton JJA agreeing).

The relevant principles that govern summary relief are well-established: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; [1949] HCA 1; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129; [1964] HCA 69 (‘General Steel’). In General Steel, Barwick CJ put the matter thus (at 129):

The Court of Appeal summarised the relevant principles in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200] (per Gleeson JA, Beazley P and Barrett JA agreeing):

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

Where a deficiency in a pleaded claim is curable by amendment, the Court may strike out the proceeding.

When a pleading is “unintelligible, ambiguous, vague or too general”, the rule typically employed in those circumstances is r 14.28(1)(b): Gunns Ltd v Meagher [2005] VSC 251 at [57]. The rule is also available when a pleading does not comply within the general or specific principles of pleading such as those set out in rr 14.6-14.20.

In my view to resort to r 14.28 is unnecessary because summary relief, under r 13.4, should be granted.

The third defendant (Neil Mitchell-Clark), fourth defendant (Fergus McDonald) and fifth defendant (Frank Burke) are the moving parties: the third and fourth defendants filed a notice of motion on 5 December 2022 seeking dismissal of the plaintiff’s claim against them; the fifth defendant filed a notice of motion on 1 December 2022 seeking dismissal of the plaintiff’s claim against him.

The third, fourth and fifth defendants essentially argue that the allegations in the statement of claim do not disclose a reasonable cause of action, or are vexatious, because: (a) there are no facts which establish the cause of action against the fifth defendant – or indeed any of the directors of Julia Ross – either in fraud, negligence or breach of the Corporations Law; and (b) any claim is likely to be time-barred.

I have earlier set out the key allegations – so far as they can be distilled from the statement of claim – made by the plaintiff: see [31], above. They have as their starting point the allegation that there was, arising out of the period 2000-2004 (or possibly from 1999), a fraud perpetrated upon the plaintiff, and a failure to exercise “due diligence in the protection of [her] workers compensation entitlements and [her] legal rights as an injured worker”: SOC, par 4.

So far as the Julia Ross defendants are concerned, the allegations centre upon the plaintiff’s allegations:

It is useful to note the following matters, before dealing with the substance of what has been argued:

Before me, the plaintiff explained her case in these terms: the plaintiff argued that the wrong defendant had been joined to the District Court proceedings – notwithstanding what was alleged in the statement of claim, par 20 and notwithstanding that the amended statement of claim correctly identified her employer (see [49(1)], above) – and to the Compensation Court proceedings, and that ASIC searches demonstrated as much. This had the effect, so the plaintiff argued, of denying the plaintiff her proper entitlement to either damages or compensation, or both. The plaintiff also argued that she was unaware of the hearing that was conducted in the Compensation Court in 2003, and it was resolved without her knowledge and consent.

In my view the issue concerning the potential wrongly named defendant is inconsequential. That is for the following reasons:

Notwithstanding the above, as I have already noted, the plaintiff alleges that she has been denied her proper entitlement to damages and/or compensation, and the plaintiff levels a series of grave allegations against the director defendants – essentially that they engaged in a fraud, some 20 or so years ago, to deny the plaintiff her just entitlements for the injury and loss and damage that she suffered in the July 1996 incident. In the face of the disposition of the District Court proceedings – and why it failed – and the outcome in the Compensation Court proceedings – and the fact that the plaintiff recovered compensation – it is impossible to see how there could be any basis for such claims. That is particularly where the claims were conducted by the statutory insurer for Julia Ross (and the lawyers they had appointed), and not Julia Ross itself.

During the hearing, when invited to do so, the plaintiff was unable to pinpoint any evidence that might, even tenuously, support what is alleged, or be a step towards supporting what is alleged. All the plaintiff was able to identify – aside from her statement of claim and written submissions – was the fact that ASIC records show that there was, in the period 1999-2016 a company known as Julia Ross Personnel Pty Ltd that had a different ACN to the Julia Ross that employed her. The existence of that “fact” is patently insufficient to support what is alleged.

There is, in my view, no basis for (or a shred of evidence to support) the allegations made in the Julia Ross proceedings (as I have summarised them – see [31], above and as explained by the plaintiff – see [50], above), nor any step in the chain necessary to do so. Nor, in my view, is there likely to be: it is “possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance”: Ugur at [117] citing Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1; [2001] UKHL 16 at [95].

There are other issues as well, which the director defendants argued supported summary relief. One is “causation”. If, as the plaintiff alleges, there was a defect in the naming of the defendant in the District Court then that occasioned the plaintiff no loss whatsoever. That is because, as I have already noted, the plaintiff’s claim failed because she failed to persuade the District Court judge that the files that she lifted were unreasonably heavy: the claim did not fail because of the joinder of the wrong defendant, or some other technicality related to the joinder of the entity named as the plaintiff’s employer in the District Court proceedings. The same point may be made in connection with the proceedings in the Compensation Court: the plaintiff in fact secured an award of compensation in her favour.

Further, if, as the director defendants argued, the plaintiff also seeks to advance claims in negligence or, possibly, for breach of the duties that each owed as directors of the defendant, it is difficult to see how the plaintiff could possibly succeed in these claims. To the extent that these allegations rest upon each of the defendants being a knowing participant in the fraud, then the position in connection with establishing that involvement and knowledge is not different to the “fraud” claim earlier discussed: there is, to my mind, no basis to allege this, and no evidence whatsoever to support the allegations. To the extent that these allegations rest upon omissions – that acting reasonably each of them should have been aware of the fraud committed by others (and putting to one side there is no basis to allege this) – there is a complete failure of the plaintiff to identify how each of them ought to have been aware of the fraud, and point to any evidence that might tend to support any aspect of that allegation.

In relation to the plaintiff’s grievances that are anchored in her lack of awareness of the hearing in the Compensation Court in September 2003, and her related allegation that they were resolved without her knowledge or consent, it is inconceivable that these matters could be legally attributed to the directors of the plaintiff’s employer when, as I have earlier pointed out, the employer was represented by solicitors appointed by the statutory workers compensation insurer.

In my view, like the “fraud” allegations, these ancillary allegations are likewise clearly deficient, without substance and disclose no reasonable cause of action. In this respect as well, it is also “possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance”: Ugur at [117].

It is difficult to address limitation issues having regard to the allegations made, and the fragility of those claims. Mr Carolan and Mr Joseph fairly conceded that it was difficult – if not impossible – to do so in light of the way and manner in which the claim had been pleaded by the plaintiff. Each of them submitted that, almost inevitably, any proceedings against them would be time-barred.

There is considerable force in those submissions, but I do not think, in light of the way the matter has been pleaded, and the fact that in my view no cause of action is reasonably disclosed, it is possible to adopt a contrary position and determine that properly pleaded proceedings on those (hypothetical) causes of action would – or would not – be time-barred.

The solicitors initially raised three grounds to support an order that the Vardanega Roberts proceedings should be summarily dismissed – namely:

Ultimately, however, the third ground was submitted by Mr Philips to be an alternative form of relief available if the attempt to “relitigate” is found to be an abuse of process; that is, the proceedings could be the subject of an order staying the proceedings. In those circumstances, it is only necessary to deal with the first and third arguments advanced to justify summary relief. It is convenient to first deal with the “re-litigation” of the 2020 proceedings.

The solicitors argued that the current proceedings “in substance” involve the same allegations made against them that were made in the 2020 proceedings and as those proceedings were dismissed by Schmidt AJ the current ones are “subject to res judicata and cause of action estoppel and cannot be the subject of further or fresh proceedings” or are otherwise an abuse of process (submissions at [36](a) and (b)). During submissions, Mr Philips confined the argument to collateral attack and abuse of process.

In aid of the abuse of process argument, reliance was placed upon what was said in Twigg v Pitcher Partners Holdings Pty Ltd (No 4) [2023] NSWSC 109 (‘Twigg’), particularly at [22](k) – to the effect that categories where abuse had been found included where “a plaintiff seeks to make a collateral attack on an earlier judgment” and “the defendant in the current proceeding has been twice vexed over the same complaint”.

In Massalski v The Owners SP 90255 [2023] NSWSC 23 (‘Massalski’), I summarised the principles relating to abuse of process in light of the decision in UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45 (‘UBS’), as follows (at [54]):

In connection with a “collateral attack”, consistent with what was submitted by Mr Philips and the decision in Twigg, I explained this concept in Massalski at [56], in these terms:

To determine whether the commencement of the Vardanega Roberts proceedings amounts to an abuse of process, it is therefore critical to ascertain: (a) what was decided in the 2020 proceedings; and (b) compare that to what is alleged in the Vardanega Roberts proceedings: it is only then that a determination can be made about whether what is alleged in the later claim, and what is sought to be proved, is apt to bring the administration of justice into disrepute, or whether it can be justified.

I have earlier identified the findings made by Schmidt AJ as to the subject matter of the claims that were made by the plaintiff against the solicitors in the 2020 proceedings: see [24]-[25], above. The key finding is the one made by Schmidt AJ at [13]:

In my view, as the solicitors submitted, the current allegations – which I have summarised in [35], above – are not materially or substantively different to those contained in the 2020 proceedings, as found by Schmidt AJ. To the extent that there are differences, they are immaterial, and the product of the way and manner in which the plaintiff has pleaded each of these claims. I find that the claim is, in substance, the same.

To the extent that the plaintiff sought during submissions to suggest that, since the orders in 2020 proceedings were made, she “discovered” that there were differences between corporate numbers (ACNs) of Julia Ross, I do not accept that that is a basis upon which to distinguish between the 2020 proceedings, and the Vardanega Roberts proceedings, or provide a justification for them: the plaintiff at all times has been maintaining a position that the incorrect employer had been joined to the various claims that she had which had denied her damages and/or compensation that she argues she was justly entitled to arising out of the July 1996 injury, and it was clearly open for her to secure this material at any time.

It is, as well, important to emphasise that Schmidt AJ made a number of further findings about the 2020 proceedings:

Schmidt AJ concluded that this “situation simply provides no foundation for the serious allegations which [the plaintiff] seeks to advance against Mr Vardanega, Mr Roberts and Mr Studdart” (judgment at [31]), leading to the ultimate conclusion that “even taking her case at its highest, she has no reasonable cause of action against them”: judgment at [33].

Once it is accepted that: (a) the 2020 proceedings and the current proceedings are substantively the same – which I have found that they are; and (b) Schmidt AJ dismissed the 2020 proceedings as not disclosing a cause of action, then it might readily be thought that those matters, of themselves, demonstrate that the Vardanega Roberts proceedings are an abuse of process. That is what the solicitors argued – essentially, that to permit them to proceed further would bring the administration of justice into disrepute and, relatedly, that the advancement of the claims in the Vardanega Roberts proceedings would be incompatible with what had earlier been found and determined by Schmidt AJ.

Whether that conclusion follows, however, requires consideration of the orders made by Schmidt AJ and s 91 of the Civil Procedure Act 2005 (NSW) (‘the CPA’).

The order made by Schmidt AJ was that the proceedings against the solicitors “be dismissed”.

Section 91 of the CPA, which deals with the effect of dismissal of proceedings, provides:

In my view a dismissal of proceedings under r 13.4(1) of the UCPR would not be “determination on the merits”, so as to preclude the plaintiff, by s 91(2) of the CPA, from claiming any relief in respect of the same cause of action in subsequent proceedings: Poulos v Australia and New Zealand Banking Group Ltd (No 2) [2021] NSWSC 1620 at [33] (‘Poulos’). Further, by its terms, the order made by Schmidt AJ would be within s 91(1): Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd (2008) 72 NSWLR 160; [2008] NSWSC 185 at [57]; Poulos at [26]. Thus, s 91(1) would only “prevent the plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings” if the terms on which the order for dismissal was made otherwise provided. It is clear that the orders made by Schmidt AJ contained no term that precluded further proceedings.

In my view, notwithstanding s 91, the Court retains the power to prevent abuse of its procedure. The “power to rebuff an abuse of process is such an essential attribute of jurisdiction that it is properly described as a duty” and “judges have a duty to block abuse of process when detected. The protean nature of abuse of process may generate a band of remedial responses in which there is much room for the exercise of judicial discretion”: Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 at [5] and [16]; see also the analysis at [65], above.

I accept, of course, consistent with the terms of s 91(1) of the CPA, the bringing of fresh proceedings, or claiming the same relief in fresh proceedings, following summary dismissal of a claim would not, of itself, constitute an abuse of process. But it might. Whether the “fresh proceedings” ought to be so characterised will inevitably depend upon the circumstances.

The plaintiff – rather than challenging that decision by an appeal – has simply filed a further statement of claim upon the same “cause of action” that Schmidt AJ held did not disclose a reasonable cause of action. No attempt was made by the plaintiff to explain or justify the decision to do so – except based on what the plaintiff alleged was discovered from the ASIC searches. In my view, what was said to be shown in the ASIC searches was readily discoverable by the plaintiff long ago, and in any event provides no justification for the “further proceedings” in substantively the same form that were dismissed by Schmidt AJ. Put another way, the Vardanega Roberts proceedings are simply a repetition of the previously flawed statement of claim.

To sum up. The key circumstances here are: (a) the 2020 proceedings and the Vardanega Roberts proceedings are in substance the same; and (b) Schmidt AJ found that the case sought to be advanced in the 2020 proceedings, taken at its highest, disclosed no reasonable cause of action; (c) no appeal was brought against the orders made by Schmidt AJ; and (d) there is no explanation – or none that I accept – to justify the filing of “fresh proceedings” in these terms.

In my assessment, to allow this to occur would bring the administration of justice into disrepute and would be unjustifiably oppressive upon the solicitors: it would vex the solicitors with the same claim that was dismissed as disclosing no cause of action by Schmidt AJ; it would permit, in effect, a collateral attack upon that decision, as was submitted, and raise the spectre of conflicting decisions, when any challenge to that decision should have been made by appeal to the Court of Appeal: Van Gorp v Davy [2023] NSWCA 43 at [17]. In my view it would be an abuse of process to allow the plaintiff to maintain these proceedings in those circumstances. That outcome is, I consider, reinforced by the guiding principles in ss 56-60 of the CPA.

In the circumstances, I propose to order the summary dismissal of the Vardanega Roberts proceedings. Although, during argument, it was suggested that if an abuse of process was found, the Court could stay the proceedings, I am not inclined to make that order essentially because, first, the orders I propose to make have the same practical effect; and, secondly, the notice of motion did not in fact seek that order.

I now turn to the first argument raised to support summary relief – namely, that the proceedings are baseless, without merit and therefore doomed to fail.

In my view, the Vardanega Roberts proceedings are without foundation, and I am satisfied to the required degree that they cannot succeed such that it is appropriate to grant summary relief.

The “allegations” of the plaintiff were identified in [35], above. It is apparent, from the identification of those allegations, that there is considerable overlap between what is alleged in the Vardanega Roberts proceedings and the allegations made in the Julia Ross proceedings. The essence of the plaintiff’s complaints are: (a) the denial of the plaintiff’s “entitlements” in connection with the District Court and Compensation Court proceedings; (b) the failure to carry out ASIC searches by all the lawyers associated with the case on the plaintiff’s employer; and, (c) the hearing in the Compensation Court being conducted – and the settlement of those proceedings – without the plaintiff's knowledge and/or consent.

I have previously dealt with the complaints summarised in (a) and (b), above in connection with the Julia Ross proceedings (where identical allegations are made): see [48]ff. That reasoning applies equally here.

In connection with the Compensation Court hearing proceeding, and the settlement being reached, without the knowledge or consent of the plaintiff, it is, in my respectful view, inconceivable that any “liability” for this could be sheeted home to the solicitors: the plaintiff was represented by a barrister and solicitor at the hearing in the Compensation Court, and the settlement documentation (in particular the document described as “Short Minutes of Order”, which was signed by Judge Burke and resulted in the making of the orders made) was signed by the plaintiff’s counsel. The barrister and solicitor thus each had implied and ostensible authority to bind their client (the plaintiff) to a compromise of the proceedings: Donnellan v Watson (1990) 21 NSWLR 335, 342; Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; [2017] NSWCA 341 at [172]. There is nothing in the material (nor, for that matter, alleged in the statement of claim), taken at its highest, to suggest that the solicitors ought to have been on notice of the alleged irregularity: Donnellan at 342; Yau at [172].

Given the state of the plaintiff’s pleading, during submissions the plaintiff identified the evidence she relied upon to support the allegations that there had been fraud perpetrated upon her by the solicitors, as confined to two matters: (a) the plaintiff identified a change in the “ASIC numbers” of Julia Ross; and (b), a reference in a bill of costs related to Michael Roberts dated 7 July 2021 (referred to in paragraph 3 of the plaintiff’s written submissions dated 21 February 2023, filed 24 February 2023) as follows (Exhibit 2):

This material is patently insufficient to support the multiple allegations of fraud alleged to have been committed on the plaintiff by the solicitors for Julia Ross, or support any other action that is said to arise out of the “fraudulent conduct” set out in [35], above.

In my view, as the solicitors argued, the factual basis for the claim is entirely without substance, and they have demonstrated the high degree of certainty about the ultimate outcome of the Vardanega Roberts proceedings if it were allowed to proceed to trial. As with the claims against the directors in the Julia Ross proceedings, it is also here “possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance”: Ugur at [117].

For the above reasons, I make the following orders in proceedings 2022/295916:

For the above reasons, I make the following orders in proceedings 2022/296130: