Combe v Ziade

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Professional Negligence List SIMPSON J

20091/00 20092/00 Faye D COMBE v Anthony ZIADE Judgment

HER HONOUR : 1 By notices of motion filed in identical terms in each of these proceedings the defendant, Anthony Ziade trading as Anthony Ziade and Associates (solicitors) seeks an order pursuant to SCR Part 13 Rule 5 that the proceedings be dismissed, or alternatively an order that they be permanently stayed; and in the further alternative, an order pursuant to SCR Part 15 Rule 26 that the proceedings be struck out. 2 The essential basis for each application is the same; it is that the proceedings constitute an abuse of process because they duplicate proceedings commenced in other jurisdictions, and raise identical, or substantially similar, issues. A further basis for the claim in relation to the proceedings numbered 20091/00 is that they are the subject to issue estoppel. 3 It was common ground that, between about 1990 and 1993, the defendant (as I shall continue to refer to the applicant) acted in his professional capacity for the plaintiff in three sets of proceedings. These were: an application for probate following the death of her father; a related application pursuant to the Family Provision Act 1982, to which the plaintiff was, as executor of her father's will, the nominated defendant, and proceedings in the Family Court of Australia related to the dissolution of the plaintiff's marriage. 4 The statements of claim were filed by the plaintiff herself. In their form they disclose that the plaintiff was, at the time of filing, unrepresented, and from this it may be inferred that she prepared and drafted the statements of claim herself. This creates considerable difficulties in appreciating precisely the causes of action which the plaintiff seeks to plead, but it is quite apparent that the substance of her claim in each case is an allegation that the defendant is liable to her in negligence and/or in contract, and, possibly, (in statement of claim 20091/00) for breach of trust. In each case the plaintiff claims damages, interest and costs. 5 Statement of claim No.22091/00 appears to be predominantly concerned with allegations against the defendant in relation to his representation of her in the Family Court proceedings. However, there are also references to the defendant's representation of, and advice to her in the equity proceedings (as I shall compositely refer to the Probate and Family Provision Act proceedings). The plaintiff pleads that, in relation to the proceedings in the Family Court of Australia, the defendant acted negligently in the discharge of his duty to her, and, (additionally or alternatively) was in breach of the implied terms and conditions of the contract of services which governed their relations. It is to be observed that in this statement of claim the plaintiff also alleges that, on 23 January 1992, she instructed the defendant not further to act for her, but that, in breach of that instruction, the defendant continued to take steps in relation to the Family Court proceedings. In the statement of claim the plaintiff has also purported to provide particulars of "breach of trust". 6 In statement of claim No.20092/00 the plaintiff makes essentially similar claims in relation to the defendant's performance of his duties with respect to the equity proceedings. Once again, the essence of the claim is that the defendant acted negligently and/or in breach of his contract constituted by his retainer. 7 It is these statements of claim that the defendant now seeks to have permanently stayed, dismissed, or struck out, as being, in effect, a duplication of proceedings before other courts. 8 SCR Pt 13 R 5 and SCR Pt 15 R 26 are in the following terms: "13.5 (1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1). 15.26 (1) Where a pleading - (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the Court, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1). 9 It is necessary to outline something of the history of the dealings between the parties.

In relation to the Family Court proceedings the defendant rendered accounts to the plaintiff which she disputed and which were subsequently the subject of taxation by the Deputy Registrar of the Family Court. The Deputy Registrar specified $16,996.86 as the amount for which she was liable. A certificate of taxation in that amount was issued on 7 December 1995. The plaintiff did not pay the account. On 18 December 1996 the defendant filed a statement of liquidated claim in the Local Court at Burwood claiming that sum. On 3 February 1997 the plaintiff filed a notice of grounds of defence. She pleaded that the defendant had failed to perform his services in a proper and workmanlike manner, and that because of a series of particularised failures or breaches, the services rendered by the defendant were of no value to her. 10 On 15 February 2000 the plaintiff filed an amended notice of grounds of defence containing expanded particulars and details, but substantially re-stating her claim, and expressly re-stating the claim that the services performed by the defendant were of no value to her. 11 These proceedings were heard in the Local Court at Burwood by Mr R V Miszalski. It appears that the evidence proceeded over a number of non-consecutive days, commencing on 9 March 1998. Mr Miszalski gave judgment on 28 March 2000. He entered a verdict for the (present) defendant in the amount claimed together with interest. During the course of his reasons for judgment Mr Miszalski made it quite plain that, included in the issues for his determination, was the plaintiff's claim of "gross negligence" on the part of the defendant. He referred to the absence of any cross-claim in the proceedings, and he acknowledged his awareness that the proceedings in this court had been commenced. He held that there was no evidence to support a claim of loss and damage as a result of the defendant's conduct. 12 On 27 April 2000 the plaintiff filed an appeal to this court against Mr Miszalski's judgment. That appeal is still pending. 13 In relation to the equity proceedings, the defendant also rendered an account which the plaintiff has declined to pay. By statement of liquidated claim filed in the District Court the defendant claimed the sum of $44,418.37, interest and costs. On 7 July 1994 the plaintiff filed a notice of grounds of defence in which she pleaded that the defendant had "falsely or negligently advised" her in relation to certain matters, and had negligently failed to advise her in relation to others. She again pleaded that, a result of the defendant's negligence, the services he rendered were of no value to her. On 11 February 1999 she filed an amended notice of grounds of defence, in which she re-pleaded the allegation that the defendant had "falsely or negligently advised" her, had "negligently failed to advise" her, and she pleaded that, as a result of his negligence, the services performed by the defendant were of no value to her. On the same day she filed a cross-claim in the District Court, again pleading negligence and breach of contract in relation to the equity proceedings. She again claimed damages. For completeness , although it does not seem to me to be strictly relevant, I note that this matter was referred to arbitration in the District Court. The arbitrator gave a decision on 23 April 1999. He noted the cross claim and amended notice of grounds of defence, and held, pithily: "The defendant [the present plaintiff] has failed to establish her defence or her cross-claim."

He made an award for the defendant in the amount claimed, together with interest. 14 I say that the arbitration is irrelevant because, as is her right, the plaintiff has requested a hearing by a judge. That matter was listed for hearing on 1 August, but did not proceed. I was told that the reason it did not proceed was that the parties revised their estimate of the likely duration of the hearing, which was then in excess of the time available. The matter has been given a fresh hearing date on 14 November 2000 with an allocation of time in accordance with the present assessment of the parties. 15 Despite this rather lengthy history, the point made on behalf of the defendant can be stated succinctly. It is that each of the proceedings in this court is vexatious and oppressive, or constitutes an abuse of process, because it is nothing more than a duplication of matters already before another court, and, in the case of the Local Court proceedings, already decided by that court. 16 The existence of proceedings in other courts raising substantially similar issues is sufficient to warrant the exercise of the powers conferred by the two rules invoked by the defendant: Henry v Henry (1996) 185 CLR 571 at 590; Moore v Inglis (1976) 50 ALJR 589 at 591-592; on appeal 51 ALJR 207. The real question for determination is whether the proceedings in this court are, when properly analysed, a replication of proceedings of which another court is seised. 17 Counsel who appeared for the plaintiff in this court, who did so under the new regime provided for by SCR Part 66A, did not agree that the proceedings in this court raise issues substantially different from those raised in the Local Court and District Court proceedings. I am satisfied that despite some differences in the language used to plead the alleged deficiencies of the defendant's conduct, and some difference in particularisation the allegations in that the plaintiff seeks to advance in this court is a re-litigation in the Local Court and what she has pleaded in the District Court. Counsel for the plaintiff put his submissions in opposition to the orders sought principally on discretionary grounds, pointing out that the powers conferred by the two rules invoked by the defendant are subject to the discretion of the court. 18 One of the matters counsel referred to in support of the exercise of discretion in favour of the plaintiff was the plaintiff's unrepresented status. However, the plaintiff has not been unrepresented at all times; some of the pleadings she has filed (although not the proceedings in this court) have been filed on her behalf by solicitors; and she was, for part of the hearing before Mr Miszalski, represented by a solicitor. But, in any event, I would reject the notion that a different standard is to be applied to litigants in person. As the judgment in Henry shows, the concern of the courts is with the unfairness to and oppression of the opposing party that is brought about by duplication of litigation, and this unfairness or oppression is not reduced because the party at whose hands it is perpetrated is acting for himself or herself. The nature of the jurisdiction to stay or dismiss proceedings that are vexatious or oppressive or an abuse of process is protective. If vexation or oppression or abuse of process have been demonstrated, they are not to be excused on the ground that the litigant is unrepresented. 19 Another argument put on behalf of the plaintiff was that the power should not be exercised unless there has been "contumacy" on the part of the party against whom the orders are sought. Reliance for this proposition was placed upon a decision of Bryson J in Andrew, Official Liquidator v Baradom Holdings Pty Limited (1995) 36 NSWLR 700. I do not read his Honour's judgment as revealing an intention on his part to state so broad a proposition. Bryson J refused to stay a second application following an earlier (dismissed) application for the same relief, where the dismissal came about by reason of the failure of a party's representative to attend a directions hearing and to comply with certain directions. There had been, and would be, no hearing on the merits of the issues raised by the original application; here, the very point is that in one case there has been, and in the other there will be, a hearing of those issues on the merits, and the defendant should not be put to the trouble and expense of defending the same allegations repeatedly. 20 Counsel for the plaintiff proposed, as an alternative to the orders sought by the defendant, that the District Court matters be removed into this court, and all matters consolidated with a view to a single hearing. Such an application was made in July of this year, and was refused by Sperling J. (Combe v Ziade [2000] NSWSC 762, unreported). True it is that that decision was given on the eve of the anticipated but subsequently aborted, hearing in the District Court, and the imminence of the hearing may have been one of the factors that motivated his Honour to decide as he did. But it was far from the only factor, and the others remain good. Indeed, the imminence of the new date in the District Court is a consideration equivalent to that before his Honour, since the date now allocated is still well before any date that could reasonably be expected in this court. 21 I am satisfied that the defendant has made out his case for relief on the basis that the proceedings are duplicative and therefore an abuse of process. The case made on behalf of the defendant is even stronger in relation to the Local Court proceedings, because those proceedings have resulted in a judgment unfavourable to the plaintiff, and in relation to which her rights now are confined to her rights of appeal. In each case I order that the statement of claim be struck out, and that the plaintiff pay the defendant's costs.

Last Modified: 09/27/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.