This matter comes before the court today by way of a notice of motion filed by the defendants on 16 March 2021, pursuant to which the defendants seek orders that:
1. The proceedings be dismissed pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), and, in the alternative,
2. The amended statement of claim filed on 26 November 2020 be struck out in whole or in part pursuant to Rule 14.28 UCPR.
The plaintiff appears in person. Ivan Griscti of counsel appears on behalf of the defendants.
The defendants read an affidavit of Alexander Boyd Haslam sworn 16 March 2021. The plaintiff read and relied upon a number of his own affidavits, being affidavits of 2 February 2021, 13 April 2021, 4 May 2021, and 11 May 2021.
Both parties provided helpful submissions.
[2]
Background
The plaintiff is or was an accountant. In the mid-2000s he became involved in the racing industry and became a professional horse trainer and owner, as well as pursuing other interests. As is well known, in approximately 2007 the equine influenza virus affected a large number of horses in Australia. The Commonwealth Government established the Commercial Horse Assistance Payment Scheme (CHAPS) for the purposes of providing some form of compensation to both horse trainers and horse owners.
In the late 2000s, that is in and around 2009/2010, the plaintiff raised a number of concerns about the way in which the CHAPS scheme was being administered by Racing New South Wales. On 10 May 2011 the plaintiff wrote a letter addressed to the general manager at Racing New South Wales making allegations about the conduct of Racing New South Wales and the way in which it had allegedly interfered in his racing programme. Subsequent to the sending of that letter, the plaintiff received what is termed as a show cause letter from Racing New South Wales informing him that Racing New South Wales would be conducting a hearing as to his conduct. The show cause letter was issued by the chief executive officer of Racing New South Wales, Mr Peter V'Landys.
Suffice to say that the plaintiff fell into dispute with Racing New South Wales, and in particular Mr V'Landys, both in relation to the way in which the CHAPS scheme had been administered, and, further, the treatment of the plaintiff by Racing New South Wales and in particular Mr V'Landys. The plaintiff made numerous complaints and allegations relating to corrupt conduct.
A show cause hearing was held on 31 May 2011, at which time a decision was made to suspend the plaintiff's licence for a period of six months. A second show cause hearing was heard on 24 June 2011, at which time a decision was made to warn off the plaintiff from all race tracks under the control of Racing New South Wales indefinitely.
Subsequent to these decisions, the plaintiff instructed the current defendants, being a solicitor and a firm of solicitors, to represent him in challenging the decisions of Racing New South Wales in respect of his licence. At the heart of the plaintiff's complaint then, and now, are his allegations relating to what he describes as corrupt conduct on the part of Racing New South Wales. He wished to have this alleged conduct exposed.
As identified by the plaintiff on this application, prior to March 2013 the plaintiff had instructed solicitors to pursue a claim against Racing New South Wales and Mr V'Landys in relation to their treatment of him and in particular to expose the complaints that he had made back at the time that his licence was suspended relating to the administration of the CHAPS scheme.
On 7 March 2013, the plaintiff contacted the first defendant by email informing him that he, the plaintiff, was a victimised whistleblower who was fast running out of time in getting Racing New South Wales into the Supreme Court. He instructed the defendants that Racing New South Wales were engaged as administrators to allocate money to the horse racing industry and that they were negligent in the way in which they had been doing that.
In any event, following that email there were further meetings and instructions provided by the plaintiff to the defendants. In particular, the plaintiff provided a summary of his allegations against Racing New South Wales to the defendants. Again, this summary essentially emphasised the plaintiff's concerns, grievances or complaints in respect of the conduct of Racing New South Wales, particularly in relation to the administration of the CHAPS scheme.
There is no dispute that the defendants were engaged by the plaintiff to act on his behalf in pursuing Mr V'Landys and Racing New South Wales, specifically for the purposes of challenging the decisions made against him. The defendants acted for the plaintiff in proceedings brought in the Supreme Court of New South Wales in which the two decisions made by Mr V'Landys were the subject of challenge.
Those proceedings were heard before Adamson J on 17 November 2015. Her Honour entered a judgment for the defendants [1] . As is apparent from the terms of the judgment, the proceedings involved both a claim for judicial review and allegations of misfeasance in public office.
The plaintiff pursued an appeal to the Court of Appeal [2] . The plaintiff was partially successful in the Court of Appeal, in that he succeeded on one of his three grounds of appeal, being his allegation of apprehended bias on the part of Mr V'Landys. He did not succeed in respect of his other allegations relating to improper purpose or his claim for misfeasance in public office. The result of that appeal was thus that he was able to recover some of his costs but essentially did not obtain the orders that he originally sought.
This led to the plaintiff commencing these proceedings, being proceedings in the nature of a professional negligence action against his solicitors. He relies on an amended statement of claim filed on 26 November 2020. Around the same time as the filing of that amended statement of claim the plaintiff also submitted a requisition for trial by jury. He filed a motion on 26 November 2020 pursuant to which he seeks an order for trial by jury. That motion has not yet been determined.
When the matter was called on today the plaintiff indicated that he wanted to have that motion determined. I informed him that the only motion that was listed for hearing today was the defendants' motion for dismissal of the proceedings and that, in any event, the hearing of his motion seeking trial by jury should await the outcome of the defendants' motion. There would be no point in hearing his motion before hearing the defendants' motion.
[3]
The Nature of the Relief Sought by the Defendants
The defendants seek to have the proceedings dismissed on the basis that they are frivolous or vexatious and/or they do not disclose any reasonable cause of action. In the alternative, the defendants seek to have the amended statement of claim struck out, again on the basis that the statement of claim as drafted is not properly pleaded and is an abuse of process and does not disclose the cause of action which is being pursued against the defendants.
Put more simply, the defendants submit that the proceedings should be dismissed on the basis that, even on a beneficial interpretation of the statement of claim, the plaintiff has no cause of action because he must fail, having regard to the principle of advocates' immunity.
The defendants also submit that, if I am not satisfied that the proceedings should be dismissed on that basis, then the statement of claim should be struck out on a pleading point.
The plaintiff disputes that the proceedings should be dismissed or the statement of claim should be struck out. As I will detail shortly, as part of the plaintiff's submissions, he outlined the nature of his case against the defendants.
[4]
The Claim Against the Defendants
The statement of claim on which the plaintiff relies is an extensive document. Many of the allegations of fact contained in the amended statement of claim relate more to the plaintiff's grievances against Racing New South Wales and Mr V'Landys than his grievance against the defendants. Having said that, the plaintiff summarises the case against the defendants in paragraphs 31 to 36 of the amended statement of claim. It is described as a claim in negligence.
It is clear from the summary (contained in paragraphs 31 and following) that the plaintiff considers that the defendants failed to follow his instructions in the conduct of the case and failed to put before the court (that is the hearing before Adamson J) what the plaintiff considers was critical and relevant evidence.
Although I have said that it is clear from paragraphs 31 and 40 that the plaintiff is pursuing a negligence claim against the defendants, I must say that much of the statement of claim does not demonstrate a focus on the case against the defendants but rather suggests a renewed focus on raising the allegations against Mr V'Landys and Racing New South Wales. Perhaps this is because the plaintiff believes that, if the evidence which he says should have been adduced, was adduced, the outcome of his case would have been different.
In view of the difficulties in understanding the nature of the case being pursued by the plaintiff against the defendants just having regard to the statement of claim, I asked the plaintiff during oral submissions to identify precisely his complaint against the defendants.
He was able to do so. Specifically, he says that:
The defendants failed to present evidence on the hearing which should have been presented. In particular, he identified a failure to present evidence from the Clarence River Jockey Club. He says that if such evidence had been obtained and presented on the hearing the outcome of the case before Adamson J would have been different.
At the time that he provided instructions to the defendants he provided, by way of a document, diagrammatic evidence as to the logout of the track and pertinent information which was critical to the issues he wanted raised in the proceedings. He says that the defendants failed to present this evidence to the court.
The defendants failed to follow his instructions as to the type of case that he wanted to pursue and then failed to adduce the evidence that he wanted to be adduced. He says, and I quote, "If the evidence had been produced the result would have been different and I would have been getting my trainer's licence back". He also says that Mr V'Landys would have been removed from his position in Racing New South Wales.
I have had regard to all of the material in the court book and in particular the affidavit evidence of the plaintiffs.
It is clear that the plaintiff is aggrieved with his treatment from Racing New South Wales which he says arose out of his activities as a whistleblower. It is clear that he is aggrieved that matters relating to the operation of the CHAPS scheme and the conduct of Racing New South Wales were not exposed during the original case.
I hasten to add that I am not in this judgment making any comment or observation on the truth, accuracy, or content of the plaintiff's allegations. My function today is to determine the motion filed by the defendants.
It is important also to have regard to the nature of the relief sought. The relief sought is set out in the amended statement of claim as follows:
A declaration 2015 NSWSC 1709 decision was not in line with plaintiff instructions presented to Ross Koffel [by plaintiff & client Joseph Golden] which resulted in professional negligence's & possible incorrect tort used against Racing NSW [RNSW] that ignored confirmation of $40k-$50k trainers CHAPS fraud & cover up & led to identify RNSW $170m public funds embezzlement.
A declaration 2015 NSWSC 1709 decision was not in line with plaintiff instructions presented to Koffel Pty Ltd [KPL] law firm [by plaintiff & client Joseph Golden] which resulted in professional negligence's & possible incorrect tort used against RNSW, which ignored confirmation $40k-$50k trainers CHAPS fraud & cover up & led to identify RNSW $170m public funds embezzlement
A declaration the 2015 NSWSC 1709 decision excluded RNSW public funds fraud facilitations cover up & embezzlement & discovered document papers & [was] not per client instructions presented to Ross Koffel which resulted in 40 year losses by plaintiff resulting from KPL professional negligence's.
A declaration the 2015 NSWSC 1709 decision excluded RNSW public funds fraud facilitations cover up & embezzlement & discovered document papers & was not per client instructions presented to Koffel Pty Ltd law firm which resulted in 40 year losses by plaintiff resulting from KPL professional negligence's,
KPL 2013-140063 poor participations with 2015 NSWSC 1709 decision supported RNSW $40k plus fraud cover up & $170m public funds embezzlement
Defendants' professional negligence's supported plaintiffs' life & 40 years business destruction. Because defendants failed to subpoena & cross examine Mr V'Landys.
Plaintiffs 40 years losses estimate $4.3 miniumum.
Damages, including exemplary damages,
Interest
Costs
As is apparent, the plaintiff seeks declarations relating to the judgment of Adamson J. In effect, he is seeking declarations that the result and reasons and evidence were not as he instructed the defendants. Further, he says that, as a result of the defendants' negligence, he has suffered a destruction of his business, resulting in losses over 40 years which he estimates to be $6.3 million.
Whilst it must be that self-represented litigants are generally not familiar with the process of pleading and the ordinary requirements (in terms of setting out the case that they might wish to pursue), and thus perhaps the same standards should not be imposed upon them as might be imposed upon legal practitioners, it is still necessary that any defendants be able to understand the case that they are required to meet. Even a self-represented litigant is required to properly plead a case such that the defendants can understand the precise allegations against them so that a proper defence may be filed.
[5]
The Principles to be Applied
The principles to be applied in an application such as this are well-known. The Court will only exercise its power to dismiss the proceedings in circumstances in which it considers that the action pursued by the plaintiff is so obviously untenable that it cannot succeed: General Steel Industries v Commissioner of Railways NSW (1964) 112 CLR 125 at 129-130.
Whilst the Court would generally not entertain an application for dismissal when there are seriously disputed questions of fact to be determined, the defendant's application is not pursued on the basis of any contest on the facts. Rather, the defendant's application for dismissal is pursued on the basis that, having regard to the cause of action pursued by the plaintiff, the claim is untenable and cannot succeed.
It is a high bar for the defendants to overcome but the defendants put their argument without seeking to contest the allegations at this stage.
In their submissions, the defendants summarise their understanding of the plaintiff's claims allegations as follows:
1. A complaint that the defendant said he had horse racing knowledge, when he did not;
2. The defendants failed to pursue misappropriation of public funds as per the instructions;
3. The defendants had poor business administration and accounting skills;
4. The defendants failed to cross-examine Mr V'Landys;
5. The defendants failed to produce and present to the court different types of evidence;
6. Due to the defendants' incompetence, delays and negligence, the plaintiffs spent $295,000 in legal fees (not all of which was recovered);
7. The defendants failed to present critical evidence, including critical evidence relating to corruption and fraud;
8. The defendants failed to join Racing New South Wales general counsel;
9. The defendants failed to produce evidence as to the plaintiff's experience and qualifications;
10. The defendants failed to expose the fraud and coverup and failed to highlight certain matters which the plaintiff wanted highlighted.
The defendants' summary of their understanding of the case is generally consistent with the plaintiff's own summary provided during oral submissions, to which I have already referred.
The plaintiff's claim for professional negligence against the defendants is very much based on the assertion that the defendants failed to follow the plaintiff's instructions by failing to obtain and adduce certain evidence and failing to conduct the hearing, for example, by cross-examining Mr V'Landys on certain matters in a way in which the plaintiff wanted.
There is no suggestion that the defendants failed to follow instructions in doing other things, such as effecting a settlement or not commencing proceedings or any other related failures.
The case against the defendants is very much related to the way the hearing was conducted, both in terms of the issues which were exposed and the evidence which was or which was not adduced.
Advocates' immunity from suit extends to protect a solicitor involved in the conduct of litigation in Court in certain circumstances. In Giannarelli v Wraith (1988) 165 CLR 543, the court held that advocates' immunity extends to work done out of Court, which leads to a decision affecting the conduct of the case in Court [3] .
As Mason CJ explained:
"The problem is: where does one draw the dividing line? Is the immunity to end at the courtroom door so that the protection does not extend to preparatory activities such as the drawing and settling of pleadings and the giving of advice on evidence? To limit the immunity in this way would be to confine it to conduct and management of the case in the courtroom, thereby protecting the advocate in respect of his tactical handling of the proceedings. However, it would be artificial in the extreme to draw the line at the courtroom door. Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court which leads to a decision affecting the conduct of the case in court. But to take the immunity any further would entail a risk of taking the protection beyond the boundaries of the public policy considerations which sustain the immunity."
That statement was confirmed in D'Orta-Ekenaike v Victoria Legal Aid [4] at [86]:
"there is no reason to depart from the test described in Giannarelli as work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court'[8] or … 'work intimately connected with' work in a court. (We do not consider the two statements of the test differ in any significant way.)"
Whilst in Attwells v Jackson Lalic Lawyers Pty Ltd [5] the High Court held that the advocates' immunity does not extend to acts or advice which may lead to a settlement, nothing in Attwells tends to detract from the essential statement of principle set out in both Giannarelli and D'Orta.
The plaintiff's claim is that the defendants failed to follow his instructions, but he means by that that the defendants failed to obtain and present evidence that he wanted presented, and the defendants failed to conduct the hearing in such a way, that is by presentation of evidence that he says should have been presented and cross-examination of witnesses on topics that he says should have been raised.
In my view all of the allegations raised by the plaintiff (that is which could lead to any potential relief on his part) fall squarely within the description of work done either out of Court, which leads to a decision affecting the conduct of the case in Court, or work actually done in court, that is during the conduct of the hearing.
In those circumstances the plaintiff's claim is bound to fail. It is bound to fail because any allegation that he makes against the defendants which could (assuming the facts in his favour for the purpose of this application) lead to any findings in his favour, would not lead to a judgment in his favour as the defendants are able to rely on the advocates' immunity defence.
In the circumstances, the defendants are entitled to succeed in this application under Part 13 Rule 13.4. No reasonable cause of action is disclosed against the defendants for the reasons I have set out.
I should also add that, whilst allowance is made for the fact the plaintiff is representing himself, the Amended Statement of Claim is embarrassing in that the allegations raised against the defendants are not properly pleaded. It is difficult to discern from the lengthy Statement of Claim precisely what the defendants are alleged to have failed to do. I would have struck out the Statement of Claim pursuant to rule 14.28 in the alternative.
Having said that, it is not necessary that I make any order under rule 14.28 because I have determined that the proceedings should be dismissed under rule 13.4.
The defendants seek costs. Costs ordinarily follow the event. In the circumstances, I order that the plaintiff pay the defendants' costs of the proceedings, including the costs of the motion.
[6]
Endnotes
Golden v V'landys [2015] NSWSC 1709
Golden v V'landys [2016] NSWCA 300 (McColl, Leeming and Payne JJA)
(1988) 165 CLR 543 at 559 to 560
(2005) 223 CLR 1 ('D'Orta')
(2016) 259 CLR 1 ('Attwells')
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Decision last updated: 25 June 2021