Martin v Allianz Australia Workers Compensation (NSW) Ltd

1. [1]

   On 7 December 2023 the plaintiff filed a statement of claim seeking:

2. [2]

   The amount claimed was $50 million together with $5,000 each for filing and service of the statement of claim.

3. [3]

   Two defendants were named being Allianz Australia Workers Compensation (NSW) Ltd, ACN 003 087 545 and Allianz Australia Insurance Ltd, ACN 000 122 850.

4. [4]

   The plaintiff’s claim has its origins in a workplace injury which occurred on 4 July 1996. The second defendant, whose predecessor provided workers compensation insurance to the plaintiff’s employer, denied the plaintiff’s claim for compensation. That denial led to proceedings by the plaintiff against her former employer and a hosting employer in the District Court. Those proceedings were heard from 1 to 3 February 2000. The plaintiff was unsuccessful.

5. [5]

   The plaintiff later commenced proceedings in the Compensation Court of New South Wales (“NSWCC”) against her former employer. Those proceedings were resolved in 2003.

6. [6]

   In her statement of claim the plaintiff claims to have discovered on 23 September 2022:

7. [7]

   The present defendants are said to be liable because they “would have or should have been cognisant” of the fraud by the plaintiff’s employer. As best as can be determined, the claim made by the plaintiff against the defendants seems to be a breach of the duty of care which they are said to have owed to her by not advising the District Court, the plaintiff’s lawyers at the time and the plaintiff that the proceedings “had been rendered null and void” because of the fraud perpetrated by the plaintiff’s employer.

8. [8]

   By a notice of motion filed 26 March 2024, the defendants seek summary dismissal pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), alternatively, that the pleading in the statement of claim be struck out pursuant to r 14.28 UCPR.

The injury and the resultant proceedings

1. [9]

   On or about 28 June 1996, the plaintiff entered temporary employment with Julie Ross Personnel Pty Ltd (ACN 003 738 709) (“ACN 709”). That company placed relief staff with businesses requiring temporary personnel. The plaintiff was assigned to work for Gow Gates Insurance Brokers Pty Ltd (“Gow Gates”).

2. [10]

   On or about 4 July 1996, whilst lifting archive boxes at Gow Gates, the plaintiff suffered an injury to her back. She lodged a claim for workers compensation against ACN 709’s statutory workers’ compensation insurer, MMI General Insurance Ltd (now known as the second defendant). At the time, the present first defendant, then known as MMI Workers Compensation (NSW) Limited, provided claims management services in respect of the plaintiff’s claim.

3. [11]

   In June 1997, the second defendant denied the plaintiff’s claim.

4. [12]

   In 1997, the plaintiff commenced proceedings in this Court against Gow Gates claiming $150,000 for an alleged breach of Gow Gates’ duty of care to her. The proceedings were transferred to the District Court where the quantum of damages sought was increased to $750,000. ACN 709 was added as a second defendant by the filing of an amended statement of claim in about October 1999.

5. [13]

   The proceedings were heard in the District Court from 1 to 3 February 2000 by Judge Boyd-Boland. On 2 February 2000, Gow Gates and ACN 709 made a written offer to settle the District Court claim for $250,000 inclusive of costs. One of the allegations now made by the plaintiff is that the settlement offer was never conveyed to her by her former solicitors, Gerard Malouf & Partners Pty Ltd, or by the defendants or their directors.

6. [14]

   For whatever reason, the proceedings did not settle. On about 16 February 2000 Judge Boyd-Boland delivered judgment. While his Honour accepted that the plaintiff had been injured at about the time she alleged, he found that the plaintiff had failed to establish that the boxes she lifted were heavy. He did so by accepting the evidence of a Ms Maroney who was an employee of Gow Gates. His Honour said:

7. [15]

   In a supplementary judgment, Judge Boyd-Boland noted that further submissions had been received from the plaintiff without leave on the morning he was due to deliver his judgment referred to above. In that supplementary judgment his Honour said:

8. [16]

   The plaintiff did not appeal against the District Court judgment.

9. [17]

   On or about 27 November 2001, the plaintiff brought a claim in the NSWCC against ACN 709 seeking compensation of $450 per week plus expenses and interest. On 11 September 2003, the date the matter was listed for hearing, the claim settled for a sum of $9,400 being an amount referable to the plaintiff’s agreed medical costs pursuant to s 60 of the Workers Compensation Act 1987 (NSW) plus costs.

10. [18]

    On the settlement date two documents were filed in Court. The first was a document titled “Agreed Facts”, signed by the lawyers for the parties, which relevantly provided:

11. [19]

    The second document was headed “Applicant’s admissions”. This document bears the signatures of both the plaintiff and her solicitor.

12. [20]

    The relevant admissions were these:

13. [21]

    There is in evidence also a statutory declaration bearing the plaintiff’s signature and sworn on 11 September 2003 concerning whether the Commonwealth had paid eligible benefits in respect of the injury.

14. [22]

    A cheque payable to the plaintiff in settlement of the compensation claim was forwarded to her by her solicitors on 21 January 2004. The amount of the cheque was for $8,460, being the settlement amount of $9,400 less the 10% initially paid to the Health Insurance Commission. The plaintiff does not dispute that she obtained compensation of $9,400.

15. [23]

    The plaintiff claims, however, that she was not present at the NSWCC, that she did not know of the hearing, that she did not authorise her solicitors, Gerard Malouf & Partners nor her barrister, Philip Beale, to appear, or to sign any documents on her behalf. She claims that her signature is forged on the Admissions document and on the Statutory Declaration.

Subsequent proceedings

1. [24]

   On 27 November 2020 the plaintiff commenced proceedings in this Court against Gerard Malouf and Vrege Kolokossian (wrongly described in the statement of claim as Kolossian), the principals of Gerard Malouf & Partners, as well as their employed solicitor Sasho Petrovski. She also named as defendants Stephen Vardanega and Michael Roberts, the principals of Vardanega Roberts who were the solicitors acting for the insurer of ACN 709 (the present second defendant), as well as Nicholas James Studdert, an employed solicitor at Vardanega Roberts. The relief claimed was in identical terms to the relief sought in the present proceedings but the amount of the claim was $48 million together with $2,000 for filing fees, $5,000 for service fees and $25,000 for solicitors fees.

2. [25]

   Messrs Vardanega, Roberts and Studdert by a notice of motion sought orders summarily dismissing the proceedings under r 13.4 UCPR. The motion was heard by Schmidt AJ on 21 April 2021. On 23 April 2021, her Honour dismissed the proceedings pursuant to r 13.4 UCPR: Martin v Malouf [2021] NSWSC 415. In the course of her judgment, Schmidt AJ summarised the plaintiff’s allegations as follows:

3. [26]

   In the course of her judgment, Schmidt AJ made the following findings:

4. [27]

   The plaintiff did not appeal against this decision.

5. [28]

   On 21 October 2021, the plaintiff filed a document entitled “Further Amended Statement of Claim” naming only Messrs Malouf, Kolokossian and Petrovski as defendants.

6. [29]

   In this form of the statement of claim, the plaintiff asserted that Gerard Malouf & Partners did not tell her of the offer of $250,000 in the District Court proceedings, that they never pursued a workers compensation claim against Gow Gates and that they gave away her compensation rights when they settled the proceedings in the Compensation Court on 11 September 2003.

7. [30]

   On 13 April 2022, the Gerard Malouf defendants filed a notice of motion seeking that the plaintiff’s proceedings against them be permanently stayed.

8. [31]

   On 10 February 2023, Elkaim AJ permanently stayed the proceedings: Martin v Malouf [2023] NSWSC 71.

9. [32]

   In the course of the judgment his Honour said this:

10. [33]

    The plaintiff did not appeal against this decision.

11. [34]

    On 5 October 2022 the plaintiff filed two statements of claim in this Court. The first (2022/29516) named as defendants Julia Mary Ross and six other persons associated with her companies. The relief sought was in identical terms to what was sought in the present proceedings and claimed $50 million together with $3,000 for filing fees and $1,000 for service fees. Although the pleading in that statement of claim ranged over the matters contained in the present statement of claim in relation to the District Court and the NSWCC proceedings, the essence of this claim was the allegation of fraud against Julia Ross in relation to the naming and changes of names of her companies, leading to the assertion that the wrong company had been sued, and that was alleged to be why the plaintiff did not win her cases.

12. [35]

    The second set of proceedings filed on that day (2022/29613) named six lawyers who acted for and against her in the District Court and the NSWCC proceedings. The three defendants from Vardanega Roberts were sued again, in addition to Phillip Beale (the plaintiff’s barrister in the NSWCC proceedings), Deborah Moore (the barrister for the defendants in the NSWCC proceedings), and Danny Feller SC, a barrister who appeared on behalf of the Vardanega defendants before Schmidt AJ. The relief claimed was the same as in the present proceedings, with the addition of:

13. [36]

    The substance of the claim was the same, namely, that a fraud had been perpetrated on the plaintiff by Julia Ross personnel, with the lawyers said to be liable for not carrying out ASIC searches to ensure that the correct company was sued.

14. [37]

    Motions were brought in the proceedings against Julia Ross by three of the defendants for summary dismissal and by the Vardanega Roberts defendants in the proceedings against the lawyers. These motions were heard by Chen J who delivered judgment on 30 March 2023: Martin v Ross & Ors; Martin v Vardanega & Ors [2023] NSWSC 303. In both cases, the proceedings against the defendants were dismissed pursuant to r 13.4 UCPR.

15. [38]

    In his judgment Chen J dealt with the change of name of the plaintiff’s then employer as follows:

16. [39]

    In his judgment in relation to the proceedings against the Julia Ross defendants, Chen J said this:

17. [40]

    The findings at [56] and [57] are particularly apposite to the claim now made against the insurers. Apart from the fact that the wrong defendant was not sued in the District Court or the Compensation Court, contrary to the plaintiff’s assertion, there is simply no evidence that the insurers were involved in any sort of fraud at all. The insurer accepted that, if the insured entity was liable to the plaintiff, it (the insurer) would be responsible for compensating the plaintiff in accordance with any judgments. That makes the precise identity of the defendants in the two proceedings completely irrelevant in terms of any fraud. In any event, as is clear from the judgment of Judge Boyd-Boland, and from the judgments of Schmidt AJ and Chen J, the plaintiff did not lose her District Court case because of the identity of the defendants. She lost it on the facts because her evidence was not accepted and the defendants’ evidence was accepted.

18. [41]

    In relation to the proceedings against Vardanega Roberts, Chen J said:

19. [42]

    The plaintiff did not appeal against this decision.

20. [43]

    Subsequent to Chen J’s judgment, the first defendant in the proceedings against Julia Ross filed a notice of motion to have the proceedings against her dismissed pursuant to r 13.4 UCPR. On 10 November 2023 Harrison AsJ dismissed those proceedings against Ms Ross: Martin v Ross [2023] NSWSC 1353. Associate Justice Harrison dismissed the proceedings because they were an abuse of process and because no reasonable cause of action was disclosed. The claims made in those proceedings are detailed above in the reasons of Chen J.

21. [44]

    Her Honour made the following findings relevant to the present proceedings:

Legal principles

1. [45]

   The relevant principles for summary dismissal were summarised by the Court of Appeal in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [196]-[200] by Gleeson JA, Beazley P and Barrett JA agreeing, as follows:

2. [46]

   However, it is not only in cases where, taking the plaintiff’s evidence at its highest, it could not arguably give rise to the relief claimed, that proceedings may be summarily dismissed. Where one can say with confidence before a trial that the factual basis for the claim is fanciful because it is entirely without substance, that provides a basis for summary dismissal also: Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] UKHL 16 at [95]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [21]; Ugur v Attorney General for New South Wales [2019] NSWCA 86 at [118]-[119].

3. [47]

   The notion that relitigating an issue by a party against whom the issue had been determined in other litigation could not be permitted appears to have been derived from Reichel v McGrath (1889) 14 App Cas 665. In that case Lord Halsbury LC said at 668:

4. [48]

   In Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Lord Diplock referred to collateral attacks upon a final decision of a court of competent jurisdiction taking a variety of forms. One of those was the position, as described by Lord Halsbury LC in Reichel, being that an identical question sought to be raised has already been raised and decided by a competent court (see at 542).

5. [49]

   The High Court has followed both these decisions in Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 393 and Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 77 at 287-288.

6. [50]

   In Rippon v Chilcotin (2001) 53 NSWLR 198; [2001] NSWCA 142 the Court of Appeal was concerned with an attempt to litigate or relitigate issues which were either decided in or were barred by earlier proceedings. The party concerned was attempting to relitigate an issue on which it had lost in previous proceedings. The Court of Appeal first approved what had been said by Hunt CJ at CL in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414 and then set out with approval what had been said by Giles CJCommD in State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423 at 64089 as follows:

7. [51]

   This passage has been subsequently approved in other cases including O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; [2013] NSWCA 315 at 106-107; R v O'Halloran [2000] NSWCCA 528; (2000) 182 ALR 431; 159 FLR 260 at [110] and [112] and Hana v Shad Legal Services Pty Ltd [2021] NSWCA 258 at [43].

8. [52]

   More recently, in Massalski v The Owners SP 90255 & Ors [2023] NSWSC 23 at [54] & [56], Chen J has helpfully summarised the principles relating to abuse of process in the light of what was said in UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, as follows:

Consideration

1. [53]

   The defendants submitted that the plaintiff’s assertions in the proceedings could be distilled to four central allegations:

2. [54]

   I agree that this is a correct assessment of the claims being made by the plaintiff in the statement of claim.

3. [55]

   In relation to the Incorrect Defendant Allegation, the Settlement Offer Allegation and the Inadequate Compensation Allegation the defendants submitted that there were two reasons that the claims should be summarily dismissed. The first was that the claim amounts to an abuse of process because it is a collateral attack on the determinations made in the District Court and the NSWCC as well as the decisions of Schmidt AJ, Elkaim AJ, Chen J and Harrison AsJ. The second basis is that the claim does not disclose a reasonable cause of action because the defendants owed no duty of care to the plaintiff to ensure that a particular defendant was sued in District Court or the NSWCC or to ensure that a settlement offer conveyed by them to the plaintiff’s lawyers was passed on to her, or to ensure that she obtained compensation.

4. [56]

   In Martin v Ross [2023] NSWSC 1353 Harrison AsJ held that the proceedings brought against directors of the Julia Ross companies represented a collateral attack on the correctness of the District Court and the NSWCC proceedings. In my opinion, the Incorrect Defendant Allegation and the Inadequate Compensation Allegation in the present proceedings similarly amount to a collateral attack not only on those judgments, but also on the judgments of Schmidt AJ and Chen J. The same relief had been sought in all of the proceedings, with the only difference being the amount of money claimed. The same issues were raised by the plaintiff, namely, that a fraud had been perpetrated in relation to the identity of the defendant in the proceedings, and that she was not present at the settlement of the claim in the NSWCC. The fraud has been said to have been perpetrated by a number of people including the solicitors who acted for the present defendants. Indeed, it is arguable that the present defendants’ lawyers were privies of the present defendants so that an estoppel arises for the claims that are now being made against the defendants in the present proceedings in the light of the dismissal of those proceedings by Chen J. However, it is not necessary to decide that point because those claims constitute an abuse of process for other reasons which follow.

5. [57]

   The plaintiff did not appeal against the District Court decision, nor did she seek to set it aside on the basis of what she has described as an illegality. She has never sought to set aside the judgment in the NSWCC on the basis that she did not agree to it. To allege the fraud in relation to the District Court proceedings and to allege that she did not agree to the consent judgment in the NSWCC as she does in the present proceedings amounts to a collateral attack on those judgments.

6. [58]

   It is clear in any event that those issues themselves were raised by the plaintiff in the earlier proceedings and were determined adversely to her by Schmidt AJ, Chen J and in one respect by Elkaim AJ. It can be accepted that, apart from the findings made by Elkaim AJ at [25] and [37] of his Honour’s judgment (see at [32] above), his Honour was determining only if the proceedings should be permanently stayed, and not whether any reasonable cause of action was demonstrated.

7. [59]

   Determinations made in those cases are as follows:

8. [60]

   In Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44, McLelland J said at 46:

9. [61]

   This passage was approved in Nominal Defendant v Manning (2001) 50 NSWLR 139; [2000] NSWCA 80 at [11], [46] and [97]. Although by majority in Manning, a party was held entitled to make a second interlocutory application, that was because further evidence was put forward at the second application. The majority rejected (at [71] and [123]) the notion that an applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before.

10. [62]

    Nevertheless, Heydon JA said at [67]:

11. [63]

    Of course, Brimaud and Manning were concerned with second interlocutory applications being made by the same party. However, they provide some guidance to the approach of the Court where it is considering, as here, whether determinations made at interlocutory hearings are sought to be re-agitated by the respondent to those applications, and in a situation where that respondent offers no further evidence to demonstrate why the bringing of the fresh proceedings relying on the same bases as has been determined against her previously does not constitute an abuse of process.

12. [64]

    Nothing additional has been put forward to justify the present proceedings in the light of the determinations made against the plaintiff in the proceedings she has already brought. Applying the principles in Rippon, Stenhouse, Massalski, Brimaud and Manning, the maintenance of the present proceedings, to the extent that the Incorrect Defendant Allegation and the Inadequate Compensation Allegation issues are repleaded against the present defendants, amounts to an abuse of process.

13. [65]

    In my opinion, the claims constituting the Incorrect Defendant Allegation, the Settlement Offer Allegation, the Inadequate Compensation Allegation and the Unauthorised Disclosure Allegation should be dismissed on the basis that no reasonable cause of action is disclosed for the reasons which follow.

14. [66]

    The plaintiff was employed by Julia Ross Personnel Pty Ltd (ACN 003 758 709). On 5 August 1999 that company changed its name to Julia Ross Recruitment Pty Ltd. On 29 June 1999 Julia Ross Recruitment Pty Ltd (ACN 088 341 164) (“ACN 164”) was incorporated. On 5 August 1999 ACN 164’s name was changed to Julia Ross Personnel Pty Ltd.

15. [67]

    When the plaintiff’s amended statement of claim was filed in the District Court the second defendant that was added to the claim was described as Julia Ross Personnel Pty Ltd (ACN 003 758 709). So much is clear from what appears on the amended statement of claim. The plaintiff submitted that the second defendant was in fact ACN 164. She submitted that at some time after the filing of the amended statement of claim the second defendant changed to ACN 164. No evidence was provided of that change despite my attempts at the hearing to ascertain from the plaintiff what document showed that such a change had been made.

16. [68]

    Since the names of the two companies were effectively interchanged on 5 August 1999, the second defendant on the amended statement of claim should have been named as Julia Ross Recruitment Pty Ltd. However, that was simply a name change. There was never a change to the company that was named or continued to judgment as the second defendant. That company was always ACN 709. It seems likely that the plaintiff has not understood what occurred on 5 August 1999 when the names of the two companies were interchanged.

17. [69]

    Regardless, in any event, of which company was the second defendant, the present second defendant (Allianz) accepted that it was the insurer of the plaintiff’s employer for the purpose of the District Court proceedings and also the proceedings in the NSWCC.

18. [70]

    The plaintiff does not assert that Allianz knew about anything to do with the name change, let alone the fraud that the plaintiff alleges concerning which of the companies was sued, during the currency of the District Court proceedings or the proceedings in the NSWCC. So much is clear from paragraph 16 of the plaintiff’s statement of claim which pleads:

19. [71]

    As best as can be discerned, the plaintiff’s complaint appears to be that, having found out in 2004 of the change of second defendant, Allianz had a responsibility to notify the plaintiff, the District Court and the NSWCC. However, even if, contrary to what I have found, there had been a change in the second defendant to ACN 164, Allianz was under no duty to the plaintiff or any other person or body to notify them of that change. The proceedings had concluded. The plaintiff had been unsuccessful, not because of anything to do with who the second defendant was, but because, as Judge Boyd-Boland found, the plaintiff had not proved her case to show that the boxes were heavy in a way that gave rise to liability on the part of either of the defendants. There was also no such duty because Allianz had never denied that it was the insurer for the plaintiff’s employer, whichever company that might have been, and it ultimately paid a small amount of compensation.

20. [72]

    In relation to the Incorrect Defendant Allegation, it is not without significance that Schmidt AJ, Chen J and Harrison AsJ all found that there was no reasonable cause of action in respect of the allegation of fraud and wrong defendant when levelled against the insured’s directors and/or the solicitors acting on behalf of the insured retained by the present defendants. Given the way the fraud allegation is put against the present defendants, it must follow, a fortiori, that in those circumstances no reasonable cause of action is pleaded against the present defendants.

21. [73]

    The plaintiff submitted that the District Court case was null and void and it was illegal because the wrong defendant was sued. The submission is misconceived for the reasons I have given.

22. [74]

    The pleaded cause of action constituting the Incorrect Defendant Allegation does not disclose a reasonable cause of action and the factual basis for the claim is fanciful because it is entirely without substance.

23. [75]

    The pleading in relation to the offer of $250,000 is this:

24. [76]

    The letter of 11 September 2003 referred to in paragraph 39 of the statement of claim was a letter written by Nicholas Studdert, an employed solicitor at Vardanega Roberts, the solicitors for Allianz. The letter was addressed to the present first defendant reporting on the proceedings in the Compensation Court on 11 September 2003. The penultimate paragraph of the letter said this:

25. [77]

    The figure of $280,000 was made up by an offer of $250,000 to the plaintiff together with $30,000 for her costs.

26. [78]

    The present defendants tendered a letter dated 22 September 2003 from Gerard Malouf & Partners (the plaintiff’s solicitors in her District Court and NSWCC proceedings). The letter relevantly said:

27. [79]

    The offer itself was a handwritten offer saying:

28. [80]

    The document was dated 2 February 2000 and was signed by the solicitor for the first defendant (Gow Gates) and Mr Roberts for the second defendant (ACN 709).

29. [81]

    The handwritten offer has all the hallmarks of an offer made during the hearing of a case. It is clear from the letter of 22 September 2003 that Gerard Malouf was acting on a “no-win no-fee” basis. It is inconceivable in those circumstances that they would not have put the offer made to the plaintiff. The discrepancy between the amount in that handwritten offer and what appeared in Mr Studdert’s letter of 11 September 2003 was unexplained.

30. [82]

    The plaintiff said that she disagreed with what was contained in the letter of 22 September 2003. Having seen the handwritten offer, and noted the terms of the letter of 23 September 2003 which was written in response to an apparent complaint made by the plaintiff ten days earlier, I am satisfied that the contemporaneous nature of the letter establishes clearly that the offer of the $250,000 was made to the plaintiff at the District Court hearing. I note in particular what is contained in the last paragraph of the letter set out at [78] above.

31. [83]

    Even if the offer was not made to the plaintiff by her solicitors, there can be no basis for the plaintiff’s claim in her statement of claim against the present defendants in respect of that offer. The letter from Mr Studdert to the present first defendant establishes clearly that an offer was conveyed on behalf of the insurer to the plaintiff’s solicitors at the relevant time. The present defendants cannot have any liability for any failure on the part of the plaintiff’s solicitors to communicate that offer to the plaintiff. The plaintiff does not in her statement of claim, nor in the submissions made on the present application, identify what responsibility the insurer had for any failure on the part of the plaintiff’s solicitors in that regard.

32. [84]

    The pleading constituting the settlement offer allegation is misconceived. No reasonable cause of action is disclosed and the factual basis for the claim is fanciful.

33. [85]

    This allegation is contained in the following paragraphs of the statement of claim:

34. [86]

    In addition, the plaintiff pleaded (at paragraph 32) that her lawyers and the directors of both the present defendants “all violated their duty of care to me”. It is not apparent from the statement of claim what is said to be the breach of duty of care by the directors of the present defendants.

35. [87]

    The plaintiff’s claim in relation to the NSWCC appears to be twofold. First, the plaintiff repeats the allegation that the defendant in those proceedings was the wrong defendant and not her employer. Secondly, she asserts that the proceedings were settled when she was not present and that she was unaware of the hearing in the NSWCC. The documents suggest otherwise. In some of the earlier proceedings the plaintiff asserted that the proceedings in the NSWCC had been initiated and conducted without her knowledge. That claim is no longer made.

36. [88]

    There is no evidence that the wrong defendant was sued in these proceedings. In any event, the second defendant accepted that it was the workers compensation insurer and in fact paid the amount of the settlement to the plaintiff. That aspect of the plaintiff’s claim lacks any merit.

37. [89]

    As far as the settlement of those proceedings was concerned, two of the documents executed on 11 September 2003 bear the signatures of the plaintiff. The first is the document headed “Applicant’s admissions” (referred to at [19] and [20] above). The second document was a statutory declaration concerning Commonwealth benefits paid. The statutory declaration was witnessed by Mr Petrovski, the solicitor employed by Gerard Malouf & Partners acting for the plaintiff.

38. [90]

    Although the plaintiff denied that the signatures were hers, she obtained a handwriting expert, Melanie Holt, who said in her report dated 26 March 2021 that no conclusion could be reached regarding the authorship of signature on the admissions document, but in respect of the signature on the declaration:

39. [91]

    As noted earlier, Mr Studdert reported on the settlement of the compensation proceedings to Allianz later on 11 September 2003. That letter, amongst other things, said:

40. [92]

    In the letter from Gerard Malouf & Partners to the plaintiff of 22 September 2003 the following appears in relation to the compensation claim:

41. [93]

    It should be noted that the letter does not record any assertion by the plaintiff that she was not notified of the Compensation Court proceedings or that she was not present when they were settled. Indeed, the letter is powerful evidence that the plaintiff was present given that she alleged that Mr Petrovski made particular statements to her about whether she settled the case. Further, the fact that the matter was listed for hearing that day leads to the inexorable conclusion that the plaintiff must have been present.

42. [94]

    However, whether or not the plaintiff was present does not give rise to any liability on the part of Allianz. It is apparent from the evidence that both the plaintiff and the defendant were represented by lawyers at the NSWCC and that settlement was achieved. Neither Allianz nor its solicitors owed any duty to the plaintiff to ensure that she was properly advised about the matter. Apart from a situation where a party or their lawyers makes representations contrary to s 18 of the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law or similar statutory provisions, the position is that ordinarily opposing lawyers and their clients, owe no duty to the opposite party in litigation.

43. [95]

    The plaintiff’s claim in relation to the Inadequate Compensation Allegation is misconceived. No reasonable cause of action is disclosed, and the factual basis for the claim is fanciful.

44. [96]

    The paragraphs of the statement of claim relating to this matter are these:

45. [97]

    The letter of 2 May 2006 (referred to in par 49) is addressed to Stephen Spinak at a post office box in Edgecliff. The letter is headed as follows:

46. [98]

    The claim number, minus “033” on the end, is the workers compensation claim number. The letter says only:

47. [99]

    The second letter dated 3 May 2006 is addressed to:

48. [100]

    In his affidavit in support of the present motion, Matthew James Ellis, the solicitor for the defendants, says this:

49. [101]

    Mr Spinak is and was a solicitor in 2006 and his postal address was PO Box 822 Edgecliff to where the letter was addressed.

50. [102]

    The plaintiff denies that she ever retained Mr Spinak.

51. [103]

    The statement of claim says only that the plaintiff is entitled to a detailed explanation from the directors of Allianz why they allowed the theft and distribution of her personal injury records. I tried to ascertain from the plaintiff at the hearing what claim she was making in relation to the documents. The plaintiff said only that Allianz should not have allowed the documents to leave her files and that it was not ethical that they did so.

52. [104]

    In her affidavit of 4 April 2024 in response to the present notice of motion the plaintiff asserted that identity theft was involved and that she was a party to a current class action for identify theft.

53. [105]

    At the present time, there is no established tort for unjustified invasion of privacy, but the state of the law is uncertain, as noted by Basten JA (with the agreement of Allsop P) in Maynes v Casey [2011] NSWCA 156 at [34].

54. [106]

    If in fact what the plaintiff is claiming is for a breach of confidence in equity, the Full Federal Court in Optus Networks Pty Ltd v Telstra Corp Ltd (2010) 265 ALR 281; [2010] FCAFC 21 said that there are four elements which must be satisfied as follows:

55. [107]

    The letter does not say what the documents are, and the plaintiff in submissions said that nobody knew what documents were sent but they “would have been personal documents from my digital files”. In the absence of evidence about what documents were provided, the claim must fail. It is possible that the documents which were provided were already in the public domain such as the judgment of Judge Boyd-Boland or the settlement documents filed in the Compensation Court.

56. [108]

    It must be regarded as doubtful in the extreme that an insurer would hand over a client’s file or documents from it to a solicitor without that solicitor providing a written authority from the client to the insurer. It is equally doubtful that Mr Spinak would have sought a copy of the file without having an authority to do so. One might reasonably ask what interest Mr Spinak would have in seeking documents concerning the plaintiff unless he had been asked to do so by or on behalf of the plaintiff.

57. [109]

    However, whether the claim is one for a breach of privacy or a breach of confidence, the claim must fail because the plaintiff is unable to identify what documents were provided to Mr Spinak. The further difficulty for the plaintiff is that the plaintiff fails to identify what relief that she seeks that can be provided by law.

58. [110]

    No reasonable cause of action is disclosed in relation to this allegation.

Conclusion

1. [111]

   None of the claims pleaded discloses a reasonable cause of action. Further, the pleadings constituting the Incorrect Defendant Allegation and the Inadequate Compensation Allegation constitute an abuse of process because they amount to a collateral attack on the decisions of the District Court, the NSWCC and the decisions of Schmidt AJ, Chen J and Harrison AsJ.

2. [112]

   It is not necessary, therefore, to consider in any detail the alternative claim that the pleading should be struck out pursuant to r 14.28. It is enough to say that the pleadings ought to be struck out because they do not properly plead any reasonable cause of action. They do not comply with the UCPR in terms of pleading only material facts. They do not provide any particulars to justify the claim of fraud. The claim for $50 million is ridiculous, particularly because the plaintiff’s common law claim was transferred from this Court to the District Court where only that court’s then limit of jurisdiction of $750,000 was claimed. The plaintiff said only that she sought $50 million because she did not receive compensation, and everything “was done behind my back”. She was not otherwise able to say how the figure was calculated or assessed.

3. [113]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) the proceedings are dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs of the proceedings.