Huang v Attapallil

Supreme Court of NSW|2016-12-02|Before: Garling J, Commission J

Joseph Assi (D2) Charles Thornley (D3) Geoffrey O'Shea (D4) Representation: Counsel: In person (P) In person (D1) In person (D2) D F Elliott (D3) In person (D4)

Solicitors: Lander & Rogers (D3) File Number(s): 2016/332818 Publication restriction: Not Applicable

Introduction

On 8 November 2016, the plaintiff, Ms Biru Huang, filed a Summons in this Court ("the current proceedings") seeking relief in relation to unlawful and illegal conduct in which she alleged the defendants had engaged whilst acting for and against her in various Local and District Court matters, most notably District Court proceedings number 16/96823 ("the District Court Drumm proceedings") and Local Court proceedings 15/22577 ("the Local Court Drumm proceedings").
Ms Huang named Mr Alex Attapallil "… trading as a sole Principal Legal Practitioner as Lexes Lawyers" as the first respondent. He ought more properly to have been called the first defendant, but nothing turns on this, or any other, misdescription. I will refer to the respondents, so named, as defendants. Mr Joseph Assi was named as the second defendant, Mr Charles Thornley as the third defendant and Dr Geoffrey O'Shea as the fourth defendant.

Plaintiff's Claim in the current proceedings

Ms Huang claimed the following relief in the current proceedings: "1. Declaration that work undertaken by second respondent for the Applicant was of a legal nature in breach of s.25 of the Legal Profession Act 1987 and any subsequent corresponding legislation including The Legal Practitioners Act 2004 and The Legal Practitioners Uniform Law (NSW) 2014. 2. Declaration that the second respondent has obtained money by deception from the Applicant by providing work of a legal nature for the Applicant and charging her for that legal work contrary to s 178 BA of the Crime Act 1900 and contrary to the provisions of the Legal Practitioners Act 2004 and The Legal Practitioners Uniform Law (NSW) 2014. 3. Declaration that the first respondent and/or fourth respondent are in breach of their respective codes and obligations as a solicitor and as a barrister under the Legal Profession Act 2004 (NSW) and The legal Practitioners Uniform Law (NSW) 2014 and any other applicable law and NSW Barristers Rules 2014 (NSW) and The Legal Profession Uniform Conduct (Barristers) Rules 2015, respectively, in allowing the second respondent to perform legal services on behalf of the Applicant and to brief the fourth respondent on legal matters as if a solicitor and assume the conduct of the Applicant's proceeding and to continue to practice as a solicitor behind the trading name, Lexes Legal and/or Lexes Lawyers, when the second respondent is a debarred and struck-off lawyer who has been imprisoned for serious indictable offences committed as a solicitor and is unable to practice as a solicitor and/or perform legal work as a solicitor. 4. Declaration that the first and third respondents are in breach of the Legal Practitioners Act 2004 (NSW) and The Legal Practitioners Uniform Law (NSW) 2014 and other applicable current law controlling the conduct of barristers and of solicitors in NSW in providing statements known to be false to the Court in District court of NSW in matter number 2016/96823 - and which sworn statements are in breach of the Crimes Act 1900, s327. 5. Declaration that the first, second, third and/or fourth respondents are in breach of the Crimes Act 1900, s.319 for corruptly disrupting the applicant's proceedings in District Court matter number 2016/96823 and/or allowing and/or assisting a Struck Off lawyer in NSW to effectively conduct legal practice in NSW when he is not entitled to provide work of a legal nature or perform the professional duties associated with a solicitor and corruptly disrupting the Applicants claim in the District Court of NSW in matter number 2016/96823 to avoid the consequence of a complaint to the NSW Law Society in relation to the first and fourth respondents. 6. Order that: [a] the District Court file in matter number 2016/96823 and Local Court matter number 2015/22577 be referred to the Director of Public Prosecutions for Investigation of the first, second, third and/or fourth respondents under the Crimes Act 1900, s.319, 327. [b] Order that the second respondent be restrained from providing services of a legal nature normally associated with performance of solicitor duties. [c] Order that the first, second and/or third and/or fourth respondent pay the Applicants costs incurred in the District Court matter 2016/96823 joint and severally pursuant to the Civil Procedure Act 2005, s.99 and other applicable statutes. [d] Order that the first and/or second and/or third and/or fourth respondent pay joint and severally any legal costs incurred by the Applicant in District Court of NSW in matter 2016/96823 and Local Court matter 2015/00022577 on an indemnity basis by virtue of corrupting the Applicant's District Court of NSW Proceeding and in corrupting the Applicants Local Court of NSW Proceeding. [e] Costs of this applicant and incidental costs of this application to be paid on an indemnity basis by the first, second and/or third respondents joint and severally forthwith. [f] An order that the Applicants Summons in the District Court of NSW matter 2016/223849 be transferred to the Supreme Court of NSW under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) and/or s.146 of the Civil Procedure Act 2005 (NSW). [g] In the Alternative to [f] above, and Order that the Applicants Summons in the District Court of NSW matter 2016/223849 be stayed pending the determination of the Applicant's Summons filed in this Court of Supervisory and Inherent jurisdiction. [h] An Order that the Applicant be able to proceed against the respondents in a claim in damages on pleadings to be filed at a later date." (sic)
In considering and dealing with the Summons, it is convenient to attempt to join the relief sought together by reference not to the type or nature of the relief sought but rather by reference to the underlying substance.
One matter of substance relates to the professional conduct of Mr Thornley, and a variety of relief sought by reference to the Legal Profession Uniform Law (NSW) to which I will refer as the Uniform Law, and associated legislation. These claims for relief are to be found in paragraphs 4, 5, 6(c) and 6(d). It will be convenient to refer to this as the "Thornley conduct claims".
The Uniform Law is also the basis of the claims for relief sought with respect to the first, second and fourth defendants, variously in paragraphs 1, 2 and 3. Paragraph 4 also includes reference to the first defendant. It will be convenient to refer to these as the "Uniform Law claims".
The last group of claims for relief relate to claims made for corrupt conduct contrary to s 319 of the Crimes Act 1900, and for perjury contrary to s 327 of the Crimes Act. These claims can be found in paragraphs 4, 5 and 6(a). Paragraph 2 also includes relief by reference to a breach of s 178BA of the Crimes Act. It will be convenient to refer to these claims as the criminal conduct claims.
In response to the third defendant's Motion described below, Ms Huang sought the leave of the Court to file an amended Summons, dated 1 December 2016. I reserved my decision on this application to be included in this judgment.

Third Defendant's Notice of Motion

By Notice of Motion filed on 17 November 2016, Mr Charles Thornley, the third defendant, sought an order pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR") that the proceedings be dismissed as being vexatious and oppressive, and as an abuse of process.
In the alternative, he sought an order pursuant to rule 14.28 of the UCPR that the Summons filed in this Court by Ms Huang on 2 December 2016 be struck out on the basis that it was an abuse of process. In a further alternative, he sought an order pursuant to s 67 of the Civil Procedure Act 2005 (NSW) that the proceedings be stayed until Ms Huang pays the third defendant's costs of proceedings number 2016/223849 in the District Court of NSW in the sum of $19,695.
The third defendant also sought an order that Ms Huang pay his costs on an indemnity basis.
At the start of the hearing of the third defendant's Motion, each the first, second and fourth defendants made an oral application pursuant to r 18.6(2) of the UCPR for leave to permit them to pursue the same relief against Ms Huang as was sought by the third defendant. The first and fourth defendants did not seek to rely upon any additional evidence, but merely sought to embrace the arguments advanced by the third defendant. The second defendant sought to do so as well, but also relied upon an affidavit. I was persuaded that it was appropriate to grant such leave to the first, second and fourth defendants.
Before the hearing of the third defendant's Motion commenced, Ms Huang sought an adjournment of three weeks in order to permit her to adequately prepare for the application made by all four defendants. I refused Ms Huang's application for this adjournment, and provided reasons: see Huang v Attapallil [2016] NSWSC 1904. However, I allowed Ms Huang an opportunity, after the conclusion of the oral submission, to file any further evidence or submissions that she wished to. Ms Huang took advantage of this opportunity both to provide further evidence and to make additional submissions. This material has been taken into account.
Accordingly, this judgment deals with the third defendant's Notice of Motion (in which the remaining defendants are joined) and Ms Huang's application for leave to file an Amended Summons.
Ms Huang elected to file quite extensive evidence to justify her submissions, and her right to pursue the proceedings. The other parties also filed evidence. None of the deponents were cross-examined. What follows is taken from the evidence.

Factual Background

Ms Huang is the current trustee of the Corporate Consulting Services Trust ("the Trust"). Dr James Gibson is a discretionary beneficiary of the Trust who also acts in the course of her litigation as Ms Huang's "Mackenzie friend". The first defendant, Mr Alex Attapallil, acted as solicitor for Ms Huang between about April and July 2016.
Mr Charles Thornley is the solicitor on the record for Mr Bernhard Drumm, who is a former trustee of the Trust and a chartered accountant resident in New Zealand who is being sued by Ms Huang in the District Court Drumm proceedings and in the Local Court Drumm proceedings. Mr Thornley was at all relevant times a partner of Lander & Rogers, Solicitors. Mr Thornley's client was at all times opposed to the interests of Ms Huang.
The declarations which Ms Huang seeks in relation Mr Thornley relate to, and derive from, her assertion that Mr Thornley knowingly swore a false affidavit in support of a Notice of Motion filed by his client in the District Court Drumm proceedings seeking orders for the transfer of the proceedings to New Zealand, and that Mr Thornley conspired with those representing her to disadvantage Ms Huang.
The first defendant, Mr Alex Attapallil, was at all relevant times a solicitor, who was the principal of a law firm called Lexes Lawyers. He was at different times, and in different proceedings, the solicitor on the record for Ms Huang.
The second defendant, Mr Joseph Assi, is the CEO of International Legal and Commercial Brokers Pty Limited ("ILCB"). Pursuant to an agreement dated 5 April 2016, Ms Huang entered into an agreement with ILCB. The terms of that agreement were: "1. ILCB agrees to research and source appropriate legal representation on behalf of the Client for the proceedings set out in the Schedule herein. 2 ILCB agrees to act as the Client's consumer advocate and agent in ILCB's dealings with the Client's legal representatives, 3. ILCB agrees to promote transparency between the Client and the Client's legal representatives, 4. The Client agrees to pay ILCB an Administrative Fee of $2,000 plus GST. 5. The Client agrees that ILCB may negotiate a rebate of the Client's legal fees and that such rebate will constitute ILCB's Substantive Fee, 6. The Client is responsible for the payment of all disbursements, including counsel's fees. 7. The Parties agree to adhere to the attached Authority."
The Recitals to the Agreement were as follows: "A. ILCB acts as a legal and commercial broker, B. ILCB is not a Legal Practitioner. C. The Client has engaged ILCB to act as its Plenipotentiary Agent in seeking and facilitating the Client's legal representation* D. The Parties hereby enter into the terms herein of this Contract."
The legal proceedings listed in the Schedule to the contract were: "Supreme Court Proceedings 2016/80143; … Local Court Proceedings 2015/22577 [the Local Court Drumm proceedings]; District Court Proceedings 2016/96823 [the District Court Drumm proceedings]; and any other legal matters arising from time to time".
Supreme Court proceedings numbered 16/80143 were proceedings against Mr Drumm for contempt of court. They have no direct relevance to these proceedings.
Ms Huang deposed, at the time of entering into her agreement with Mr Assi, that Mr Assi represented to her that he and Mr Attapallil were both solicitors and that the Agreement related to their provision of legal services to her. Ms Huang also deposed that Mr Assi informed her that $3,000 of the total monthly fee that was payable by Ms Huang to ILCB was payment for Mr Assi's "legal fee[s]".
ILCB was engaged by Ms Huang from 5 April 2016 until mid-July 2016. Mr Assi's evidence was that throughout this time, Mr Gibson was the main intermediary between ILCB and Ms Huang.
On 12 April 2016, Ms Huang paid the first instalment of $5,500 pursuant to her agreement with ILCB. The second and third instalments in the same amount were paid on 13 May 2016 and 14 July 2016.
The fourth defendant, Dr Geoffrey O'Shea, is a barrister who from time to time was retained by Lexes Lawyers to advise and appear for Ms Huang.

The Local Court Drumm Proceedings

Ms Huang deposed that on 13 April 2016, she attended a meeting at Mr Assi's office with Dr O'Shea, the fourth defendant, concerning a hearing which was to take place over two days starting on the next day, 14 April 2016. Dr Gibson was also present.
On 14 April 2016, Dr O'Shea appeared on behalf of Ms Huang and requested an adjournment of the hearing. That adjournment was granted by Bradd LCM, and the proceedings were stood over to 30 May 2016 for directions. The outcome of that hearing was emailed by Dr O'Shea to Mr Attapallil and Mr Assi on the afternoon of 14 April 2016.
On 30 May 2016, when the matter returned to Court, Atkinson LCM made the following orders: "1. Plaintiff has leave to file and serve a Second Amended Statement of Claim by 14 June 2016. … 5. If the Plaintiff does not comply with Orders 1 and 3, the proceedings be dismissed with costs in favour of the Defendant. 6. The Plaintiff pay the Defendant's costs thrown away to date as agreed or assessed. 7. Plaintiff is to pay the Defendant the costs thrown away in accordance with order 6 within 28 days of: a. the date of any agreement reached by the Plaintiff and the Defendant as to the quantum of those costs; or b. the date of the cost's assessment, or should the Plaintiff lodge an application for review of the cost's assessment certificate, then within 28 days of the decision being handed down on any such review; … 7A. Should the Plaintiff fail to comply with Order 7, the proceedings be stayed. 8. Proceedings adjourned for further review until 30/08/16. …"
On Monday 6 June 2016, Mr Nicholas Cohen of Lander & Rogers, the solicitors for Mr Drumm, sent a letter in which he articulated a claim for the costs which Atkinson LCM had ordered to be paid. However, the full details of the letter were not before the Court.
On Wednesday 8 June 2016, Mr Attapallil responded to Nicholas Cohen in these terms: "Dear Sir, We refer to your letter dated 6 June 2016. We put you on notice that we consider your claim: 1. To be in breach of Section 172 of the Legal Profession Uniform Law (NSW) ("the Act"). 2. A surreptitious attempt to claim costs to date and to undermine the orders of the Court. 3. A breach of the actual orders that your client is only entitled to costs thrown away. We submit that you are unable to estimate the costs thrown away until after you have had a chance to attend to our client's second amended statement of claim and evidence put in admissible form. Our estimate of costs thrown away is between $2,000 and $3,000. Your claim for $47,000 is outrageous. We put you on notice that should you prematurely file for assessment, we will make submissions that the costs assessor ought to refer you for disciplinary action under sections 202 and 207 of the Act. We also reserve the right to bring the matter to the attention of the Court. …"
Mr Nicholas Cohen replied to Mr Attapallil's email on the same day. He wrote: "Dear Mr Attapallil We refer to your below, and the attached orders made by Magistrate Atkinson on 30 May 2016. We disagree with the contents of your email. Based on your clients conduct to date, Mr Drumm has incurred significant costs which we have summarised in our recent letter. … Accordingly, Counsel for Mr Drumm made it clear in his submissions to Magistrate Atkinson that due to the substantial changes in Ms Huang's statement of claim and re-drafting of evidence, that the majority of our costs incurred by our client will be thrown away. Magistrate Atkinson made the costs thrown away order on that basis. It is a matter for the costs assessor to determine which costs are thrown away and thus caught by the costs order. The current orders do not require us to receive the Second Amended Statement of Claim and Ms Huang's evidence before having our client's costs assessed. … We will engage Quantum Costs Assessors today, as per order 6 of Magistrate Atkinson's orders made 30 May 2016. …"
On 1 July 2016, Mr Attapallil filed a Notice of Motion in the Local Court supported by an affidavit, on behalf of Ms Huang seeking the following orders in relation to this dispute over costs articulated in correspondence between the solicitors: "1. That for the Order made by Magistrate Atkinson on 30 May 2016 for the Plaintiff to pay the Defendant's costs thrown away to date as agreed or assessed is limited to the costs thrown away by the Defendant in preparing any amended Defence to the Second Amended Statement of Claim. 2. That the Defendant is not entitled as a result of Magistrate Atkinson's Order for costs thrown away to date made on 30 May 2016 to any entitlement for costs arising from that Order, in respect to the evidence served by the Plaintiff to date, 3. That should the Plaintiff be liable to pay the cost assessor's costs for their cost assessment being undertaken at the instruction of the Defendant as a result of the costs thrown away Order made by Magistrate Atkinson on 30 May 2016, that any cost assessor's costs incurred other than for any amended Defence required as a result of the Second Amended Statement of Claim, be met by the Defendant and not the Plaintiff. 4. That the Second Amended Statement of Claim filed and served by the Plaintiff be deemed to be compliant with r 19.5 of the UCPR. 5. That the Defendant pay the Plaintiffs costs incurred for this Notice of Motion on an indemnity basis."
Notwithstanding Ms Huang's affidavit evidence - that Mr Attapallil acted for her from 12 April 2016 onwards - a Notice of Appointment of Solicitor appointing Mr Attapallil as Ms Huang's solicitor in this matter was first filed on 9 June 2016.
A Notice of Intention of Ceasing to Act was filed by Mr Attapallil on 19 July 2016.

The District Court Drumm Proceedings

By Statement of Claim filed on 30 March 2016 in the District Court Drumm proceedings, Ms Huang sought various forms of relief against Mr Drumm. Inter alia, Ms Huang pleaded that Mr Drumm had breached the fiduciary duty and the duty of care which he owed to the Trust in his role as trustee, and that Mr Drumm had also breached the Australian Consumer Law. The third defendant, Mr Thornley, is the solicitor on the record who was acting for Mr Drumm in the District Court.
On 29 April 2016, Mr Drumm filed a Notice of Motion seeking that the District Court Drumm proceedings be permanently stayed pursuant to s 17 of the Trans-Tasman Proceedings Act 2010 (Cth). Mr Thornley swore an affidavit on 28 April 2016 setting out matters relevant to that Notice of Motion, including matters obtained from his client's instructions.
On 6 May 2016, Ms Huang sent the pleadings which she had already filed in the District Court Drumm proceedings via email to Mr Assi. Mr Assi deposed that this was the first time that he saw the pleadings, which had been filed by Ms Huang herself, in the District Court Drumm proceedings. Mr Assi deposed that the legal representatives listed on those pleadings was "Lexes Lawyers".
In an earlier email, Ms Huang had sent those pleadings to the fourth defendant, Dr Geoff O'Shea.
I infer from the inclusion of the second defendant, Mr Assi, and the firm of solicitors Lexes Lawyers as addressees in that email of 6 May 2016, that ILCB had conducted research pursuant to its agreement with Ms Huang, and had recommended that she engage Lexes Lawyers to act for her in the District Court Drumm proceedings.
On 10 May 2016, Dr O'Shea sent an email to Ms Huang and Lexes Lawyers providing legal advice in relation to Mr Drumm's Notice of Motion seeking a permanent stay of the District Court proceedings.
In essence, Dr O'Shea advised Ms Huang that he believed that Ms Huang would be unsuccessful in opposing the Motion and that, if it was possible for Ms Huang to "walk away" from the Motion, she should "favourably consider that course of action". Dr O'Shea also advised that the adverse cost consequences against Ms Huang would be significant if Ms Huang was unsuccessful in opposing the Motion.
Also on 10 May 2016, Dr O'Shea sent to Mr Attapallil, the "principal solicitor" of Lexes Lawyers, a Disclosure and Costs Agreement which covered legal services that Dr O'Shea would provide from 10 May 2016 onwards with respect to the Notice of Motion in the District Court Drumm proceedings. I infer from this document that Dr O'Shea had been engaged by Lexes Lawyers to represent Ms Huang in the District Court Drumm proceedings, although the copy of that document before the Court was neither dated nor signed by a representative of Lexes Lawyers.
Dr O'Shea also commented in this letter: "Having reviewed the affidavit evidence put on by the Applicant (Drumm) to the Notice of Motion (… from their solicitor Charles Baragwanath Thornley), it appears that they have a very strong case … i.e. there is a stronger nexus to New Zealand than to Australia. I believe that our client will be unsuccessful in opposing the Notice of Motion for a stay and that our client needs to re-consider whether it is in their interests to proceed. … If there is any chance that our client can settle the Notice of Motion and this the substantive proceedings, without having to pay the other side's costs, they should favourably consider that course of action."
On 12 May 2016, Dr James Gibson sent an email to Dr O'Shea, Mr Assi, Ms Huang and the general email address for Lexes Lawyers, directing some questions to Dr O'Shea about the advice that he had provided in his letter and email of 10 May 2016. These questions were responded to by Dr O'Shea in letter form and addressed to Mr Attapallil on 15 May 2016.
In mid-May 2016, Mr Assi deposed that he had a conversation with Dr Gibson, in which Dr Gibson said to Mr Assi: "I don't want Dr O'Shea to appear on the 30th [in the Notice of Motion in the District Court Drumm proceedings]. I know a barrister, Florence Chen, in Queensland. I want her to appear. Since I'm in Queensland and have all of the documents, I'll just deliver them to her Chambers."
Mr Assi deposed that, shortly after receiving Dr O'Shea's advice about the Notice of Motion in the District Court Drumm proceedings, he had the following conversation with Dr Gibson: "Gibson: I can't afford to have the matter transferred to New Zealand. … Assi: It's not your case. … Gibson: I'm telling you, if this case goes to New Zealand I'm finished. You better get Alex [Attapallil] to amend the statement of claim. Assi: I can't and I won't do that, James. Unless and until the legal advice changes, no lawyer is going to expose [Ms Huang] and himself by running hopeless proceedings. Gibson: I have documents that support [Ms Huang's] case … I've been involved in this legal feud for over 5 years. I know more about it than anyone. Assi: Well, get the documents together. … After you get all the raw data to me, I will present it to Alex [Attapallil] and Dr O'Shea."
Mr Assi deposed that, despite requests of Dr Gibson to provide documents that would support Ms Huang's opposition to the Notice of Motion, Dr Gibson failed to provide those documents.
On 6 July 2016, Ms Huang sent an email to Mr Assi, the Lexes Lawyers general email address, and Dr O'Shea asking for an update on the District Court Drumm proceedings, and asking for confirmation as to whether her appearance on the Notice of Motion was required.
Mr Assi responded to Ms Huang's email on the same day, confirming that Ms Huang was not required to come to Sydney for the hearing, but stating that it was necessary for Dr Gibson to provide the relevant documents to Lexes Lawyers in support of their opposition to the Motion. Mr Assi also confirmed that her "legal team" intended to apply for an adjournment to permit her barrister, "Charles" (a reference to Charles Alexander, another barrister retained to advise Ms Huang) to complete his legal advice to her regarding the further progress of the matter.
On 8 July 2016, Williams DCJ ordered that the District Court Drumm proceedings be permanently stayed pursuant to s 17 of the Trans-Tasman Proceedings Act. Ms Huang, although not present in Court for the hearing of the Motion, deposed in her affidavit that she believed that the permanent stay was granted due to the incompetence of Mr Assi and Mr Attapallil which lead to Mr Drumm's application to be heard practically uncontested.
On 10 October 2016, Ms Huang filed a Summons Seeking Leave to Appeal the decision of Williams DCJ.
On 9 July 2016, Ms Huang sent a letter to Mr Attapallil requesting an explanation for the outcome of the hearing on 8 July 2016.
On 19 August 2016, McLoughlin DCJ ordered that the District Court Drumm proceedings be stayed until further order of the Court pending the determination of Ms Huang's appeal against the orders made by Williams DCJ on 8 July 2016.
On 29 May 2017, at a directions hearing before the Registrar of the Court of Appeal, Ms Huang's appeal to the Court of Appeal was allowed by consent, and orders were made in accordance with Short Minutes of Order, to the effect that: 1. the orders made by Williams DCJ on 8 July 2016 in the District Court Drumm proceedings be set aside; and 2. the District Court Drumm proceedings be transferred to the Supreme Court pursuant to s 44(2) of the Civil Procedure Act 2005 (NSW).

The Cohen Email

On 28 June 2016, shortly before the hearing in the District Court before Williams DCJ, Mr Nicholas Cohen of Lander and Rogers Lawyers mistakenly sent an email to Dr James Gibson instead of to Mr Attapallil, who was the intended recipient. That email read: "Dear Mr Attapallil, I refer to the telephone calls that I had with your office and you yesterday. In my first call, I called your landline [phone number] and spoke with someone who identified themselves as Alex Attapallil. We spoke extensively about the matter given that your client has failed to respond to our request for particulars … and has failed to serve any evidence in accordance with the Court's timetable. In my second call, I called your mobile [mobile number] to confirm when we could expect to receive the documents … It was clear to me, based on that mobile call, that the person who I spoke to on the landline was not you. … This is not the first occasion that this has happened. … We are concerned about the above conduct, particularly given that Mr Assi (a struck off solicitor) has been present in Court in relation to Ms Huang's matters. As per my telephone calls with you on your mobile, you confirmed that: 1. the landline [phone number] is your landline; and 2. lexeslegal@gmail.com is your personal email, and emails sent to Lander & Rogers from that email address were authored by you. Please confirm: 3. the identity of the person answering calls from that landline; 4. whether you have authorised them to correspond on Ms Huang's behalf; and 5. what steps you propose to take in circumstances where the person who has answered the landline has held themselves out as being you and you are the solicitor on the record for the matter. If we do not receive a satisfactory response to the above matters, we will consider reporting the matter to the Law Society of NSW. …"
It is not clear on which date Ms Huang was made aware of the contents of this email. Nevertheless, it was clearly the impetus for Ms Huang filing a Summons in the District Court against Mr Attapallil, Mr Assi and Mr Thornley in proceedings number 2016/223849 ("the Attapallil proceedings") on 25 July 2016. The detail of these proceeding is discussed later in the judgment. It was also the imperative for these current proceedings.
According to her affidavit, Ms Huang deposed that it was her conclusion that: "… to avoid a complaint against [Mr Assi] being referred to the Law Society of NSW by Lander & Rogers, Mr Attapallil and Mr Assi colluded with Mr Thornley to corrupt my entire District Court of NSW proceeding on 8 July and deliberately orchestrate an outcome in which I was left without representation at the hearing."
This belief of Ms Huang that Mr Thornley on one hand, and her representatives, Mr Assi and Mr Attapallil on the other (later including Dr O'Shea), colluded to act against her interests in the District Court Drumm proceedings, including an allegation of perjury on the part of Mr Thornley in an affidavit he swore in the proceedings, is at the heart of the current proceedings. It is the basis for all the relief which is sought.
On 10 July 2016, Ms Huang sent a letter to Mr Assi describing her concerns about his conduct of her legal affairs, in particular the failure of Mr Attapallil to successfully contest Mr Drumm's Notice of Motion in the District Court Drumm proceedings to transfer the proceedings to New Zealand.
Inter alia, Ms Huang expressed concern about the lack of expediency with which she perceived her matters had been attended to by Mr Assi and Mr Attapallil, and requested that Mr Assi contact her to arrange a meeting so that they could discuss the issues in person.
In this regard, Ms Huang requested that Mr Assi explain why affidavits that she had completed and signed had not been edited so as to comply with the Evidence Act 1995 and then filed in the District Court Drumm proceedings.
On 11 July 2016, Mr Assi sent a letter in reply to Ms Huang's letter of 10 July 2016. In his letter, Mr Assi emphasised that he was not a lawyer, and that the agreement between Ms Huang and ILCB described his services as a broker sourcing legal representation, and not as a solicitor. Mr Assi also explained matters which he perceived to be relevant to the transfer of the District Court Drumm proceedings to New Zealand. Mr Assi said: "… I have tried desperately for 2 months to get James [Gibson] to attend to delivering the documents needed to Lexes Lawyers in order for them to deal with the Notice of Motion [to transfer the District Court Drumm proceedings to New Zealand]. James [Gibson] did not wish to produce any documents to the other side. Without the documents, I could not find any lawyer willing to attend court on Friday [8 July 2016]. The only avenue left to us was to try and get an adjournment, allowing us more time to source the necessary documents in James' possession. In the absence of documents, the District Court had no choice but to transfer the proceedings to New Zealand. You must understand that I cannot force lawyers to appear on your behalf in circumstances where essential documents are not produced. You will recall that your Barrister, Dr O'Shea, gave a strong opinion that you should consent to the transfer as all of the evidence pointed to New Zealand as the appropriate forum. …"
On 11 July 2016, Mr Attapallil also wrote a letter to Ms Huang in reply to Ms Huang's letter dated 9 July 2016. Mr Attapallil wrote: "I tried to brief Geoff O'Shea and Charles Alexander to appear, but in the absence of evidence and documents I could not find anyone to accept the brief. Dr O'Shea had previously given an opinion that the matter belongs in New Zealand and that if you wanted him to fight a losing case it was going to cost you around $20,000. We could not contest the Notice of Motion in the absence of evidence and documents. We have been trying for many weeks to obtain the necessary documents from James, who has been assisting you all along. Our only recourse was to seek an adjournment. Please consider the costs associated with continuing with a claim that Dr O'Shea considers misconceived. You need to protect yourself against adverse costs orders. You should never have filed the District Court statement of claim without legal advice. In order to obtain specialist advice, we did brief Charles Alexander to advise you on the District Court matter. His brief is to advise you on whether to continue the proceedings or to discontinue them. We urge you to accept his advice, in your interests."
In a further letter dated 13 July 2016, Mr Attapallil wrote to Ms Huang, advising her of the status of the Local Court Drumm proceedings. He wrote: "As you recall, we were instructed by you to vacate the hearing date as you were a self-represented litigant and unable to conduct the proceedings. We briefed Dr O'Shea to appear for you, and he succeeded in vacating the hearing. Now that we have served our evidence in chief, the Defendant, Mr Drumm, is required to serve his evidence by 2 August 2016. I am concerned about the prospects of your case in the light of new evidence that has come to my attention. … If the Court accepts that Mr Drumm is only liable to a third of some of the claim, the potential amount that you could recover may be as little as $10,000. Given that the costs of running the case with counsel briefed to appear is likely to cost you over $15,000, you need to seriously consider your position with respect to the proceedings. I recommend that we make an initial Calderbank offer to Mr Drumm's lawyers that you will accept $35,000 as full and final settlement of the proceedings with each party to pay its own costs. …"
On 15 July 2016, Ms Huang replied to Mr Attapallil's letter of 13 July 2016. Ms Huang made the following complaint in her reply: " … when Mr Assi and you briefed Mr O'Shea to attend the Local Court and sought to vacate a fixture date, that was so my claim could be re-drafted and my affidavits recast to comply with the Evidence Act and further evidence put forward. Since that adjournment, over two months ago, nothing has been done to advance my case. … Although [Mr Assi] looked through [the affidavits filed by Ms Huang, Mr Gibson and Anita Oates] and helped me prepare my affidavit for filing on Wednesday, 14 July 2016 to meet a guillotine order, nothing has been done to prepare my evidence."
Ms Huang also made the following comments about the Notice of Motion to transfer the District Court Drumm proceedings to New Zealand: "When James [Gibson] arrived [for the hearing of the Notice of Motion], he was told by Joe [Assi] that you would not be coming and Charles Alexander [the Barrister briefed to appear] would not be coming and that you had all decided on a strategy to seek an adjournment on the basis of Charles Alexander reviewing some aspect of the Law. … As a result, the court declined the adjournment, and heard my whole case uncontested by anyone on my behalf and without any evidence being put forward for me to counter the application Mr Drumm had brought. … … neither you, nor Charles Alexander, nor (by that stage) Joe [Assi] were present in Court to protect my interests."
Ms Huang also wrote a letter dated 17 July 2016, however it was not made available to the Court.
On 18 July 2016, Mr Attapallil wrote to Ms Huang, enclosing two Notices of Intention to File Notice of Ceasing to Act in the District Court Drumm proceedings and in the Local Court Drumm proceedings. In his letter, Mr Attapallil wrote: "Given the grave, untrue and unfounded allegations you make in your letters, this firm has no choice but to cease acting for you in all matters. You were referred to us by International Legal and Commercial Brokers Pty Limited (ILCB) pursuant to the attached agreement, wherein you authorised ILCB to act as your Plenipotentiary Agent. The CEO of ILCB, Mr Joe Assi, made it clear to you in the agreement that they are not legal practitioners. Yet in your correspondence you insist on addressing Mr Assi as a solicitor of this firm … For your information, the status of the three proceedings are as follows: Local Court of NSW: 2015/22577 1. The Court has yet to confirm a hearing date for the Notice of Motion regarding costs. 2. The defendant Mr Drumm is to file his defence by 2 August 2016 … District Court of NSW: 2016/96823 [The District Court Drumm proceedings] The matter is permanently stayed. No quantum of costs has been determined. As previously advised, Dr O'Shea's opinion was not to contest Mr Drumm's Notice of Motion. We sought advice from other counsel, Mr Charles Alexander. Unfortunately, the documents sought from you and Dr Gibson were not forthcoming and still not have been supplied. As we are ceasing to act for you, we have now withdrawn out brief to Mr Alexander. …"
On 22 July 2016, Mr Assi wrote an email to Ms Huang urging Ms Huang to obtain legal advice before she proceeded any further with her matters, and cautioning her against taking the advice of Dr Gibson over that of legal practitioners.
On 23 July 2016, Ms Huang wrote a letter in reply to Mr Assi's email of 22 July 2016. In this letter, Ms Huang accused Mr Assi of: "… acting as a lawyer fronting for Lexes Lawyers/Mr Attapallil (now it has been exposed for what it is) and after you and Mr Attapallil deceived me over my proceeding in the District Court on Friday, 8 July 2016."
Ms Huang also noted in her letter that: "You [Mr Assi] are now found to be a convicted fraudster who has spent over 5 years in prison and have been convicted of multiple counts of contempt of court orders continuing the ruse as a lawyer."
On 25 July 2016, Mr Assi replied to Ms Huang's letter of 23 July 2016, formally putting Ms Huang on notice that he would commence legal proceedings against Ms Huang for any loss and damage incurred by him as a consequence of Ms Huang's allegations against him.

The Attapallil Proceedings

On 25 July 2016, the plaintiff filed a Summons in the District Court in the Attapallil proceedings, undoubtedly in response to the Cohen email and the correspondence which followed between Ms Huang, Mr Assi and Mr Attapallil. Similar allegations against the same parties as exist in the current proceedings were made in the Attapallil proceedings.
On 2 August 2016, Mr Thornley wrote to Ms Huang outlining various issues with the Summons filed in the Attapallil proceedings, inviting her to withdraw the Summons without costs being sought, and informing her that indemnity costs would be sought if she did not withdraw the Summons.
Mr Thornley also wrote in his letter of 2 August 2016, the following: "Correspondence of Mr Cohen On 28 June 2016, Mr Cohen sent in error a letter to Mr Gibson which was addressed to Lexes Lawyers. At paragraph [153] of your affidavit, you state that you believe that Lander & Rogers intended to compromise Mr Gibson by sending him that email. We deny the above allegation which amounts to no more than unsustained speculation. We confirm that almost immediately after that letter was sent by email, Mr Cohen attempted to recall that email. Mr Cohen was uncertain if the email had been received by you as there was no response. On 10 July 2016 you sent an email regarding the letter of 28 June 2016. Mr Cohen responded as soon as practicable stating that clearly the email and letter were sent to you by mistake and requesting that you delete the email and that you not act on the contents. Contrary to that request, Mr Gibson dealt with correspondence that was not intended for him."
On 8 August 2016, Ms Huang replied to Mr Thornley's letter of 2 August 2016, rejecting the contentions made by Mr Thornley in that letter and declining to withdraw the Summons.
The matter proceeded, and the plaintiff filed a number of Notices to Produce and an Amended Summons.
On 10 October 2016, Mr Thornley, the third defendant, filed an Amended Notice of Motion seeking orders that the Attapallil proceedings be dismissed or, in the alternative, that the Summons be struck out. He also sought an order for indemnity costs against the plaintiff in addition to an order that the two Notices to Produce be set aside.
On 8 November 2016, the plaintiff filed a Notice of Motion seeking orders to the effect that the Attapallil proceedings be stayed while the plaintiff pursued the matter in the Supreme Court or, in the alternative, an order that the Attapallil proceedings be transferred to the Supreme Court.
On 11 November 2016, Gibb DCJ dismissed the plaintiff's Summons filed on 25 July 2016, dismissed the plaintiff's Notice of Motion filed on 8 November 2016 seeking an order to transfer the proceedings to the Supreme Court, and ordered the plaintiff to pay the defendants' costs of the Attapallil proceedings on an indemnity basis.
On 14 November 2016, the plaintiff filed a Notice of Motion seeking a stay of the costs orders made by Gibb DCJ on 11 November 2016. A Notice of Intention to Appeal against all of Gibb DCJ's orders was also filed on that day. On 30 November 2015, Gibb DCJ heard the proceedings on the Notice of Motion dated 14 November 2016, and altered the orders that her Honour had made on 11 November 2016 to provide for the plaintiff depositing the moneys into the third defendant's solicitor's controlled money account.
On 17 July 2017, the Court of Appeal heard and determined Ms Huang's application for leave to appeal against the orders made by Gibb DCJ. White JA (Meagher JA agreeing) refused leave to appeal, finding no error in the decision made by Gibb DCJ: see Huang v Attapallil & Ors [2017] NSWCA 181.

The Current Proceedings

Mr Thornley alleged in his submissions that in the Summons filed in the current proceedings, Ms Huang seeks substantially the same relief as she sought in the Attapallil proceedings which were properly dismissed by Gibbs DCJ.
On 15 November 2016, solicitors for Mr Thornley wrote to Ms Huang concerning the Summons that she had filed in the current proceedings, making essentially the same invitation that was made to the plaintiff in the Attapallil proceedings. This letter also set out comprehensively the grounds upon which the third defendant's solicitors objected to the Summons filed in the current proceedings.

Dismissal of Proceedings, Striking out of Summons or Stay of Proceedings

It is convenient to first identify the relevant legal principles applicable to the relief sought by each of the defendants, namely that the Summons be summarily dismissed or else struck out.
The legal principles which govern the summary dismissal of proceedings are clear. I have discussed them fully in many other cases, some of which are: Hopkins v Governor General of Australia [2013] NSWSC 1068; Gillies v Eastlake [2014] NSWSC 611 and ANZ Banking Group Ltd v Evans [2016] NSWSC 1742. It is sufficient to say, in short, that before a proceeding can be summarily dismissed, a power which is to be sparingly exercised, the Court has to be satisfied that there is no arguable fact or matter in the proceedings which ought to be heard at a final hearing. The case must be a very clear one to justify the exercise of the discretionary power.
Because these current proceedings were commenced by Summons and not by a statement of claim, consideration of the issue of summary dismissal include considering the evidence placed before the Court on the motions but recognising that the nature of the proceedings is as described in submissions by the parties, rather than the nature being evident from the pleadings themselves.

Thornley Conduct Claims & Uniform Law Claims

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

Plaintiff's Submissions

Ms Huang submitted that the Supreme Court was empowered to make the declarations which she seeks in her Summons of 8 November 2016 due to the operation of the Court's jurisdiction as defined in s 23 of the Supreme Court Act 1970 (NSW) ("Supreme Court Act") as extending to "all jurisdiction which may be necessary for the administration of justice in New South Wales".
Ms Huang also pointed to s 75 of the Supreme Court Act, which provides: "75 Declaratory relief No proceedings shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not."
Ms Huang further submitted that Part 65A of the Supreme Court Rules 1970 ("Supreme Court Rules") confers upon the Supreme Court a supervisory jurisdiction to uphold the obligations which are conferred upon solicitors and barristers of the Court. Part 65A is in these terms: "Part 65A Legal profession 2 Assignment of business (1) There are assigned to the Court of Appeal proceedings in the Court in the exercise of the disciplinary powers of the Court with respect to legal practitioners ... (2) Proceedings in the Court under the Legal Profession Act 1987 (other than proceedings assigned to the Court of Appeal) are assigned to the Common Law Division."
Although Ms Huang did not specifically refer to it, it is clear that this Court has inherent jurisdiction with respect to any lawyer whose name is on the Roll of Legal Practitioners held by the Court.
On the issue of standing, Ms Huang submitted that she has a special interest in the issues which she raises in her Summons of 8 November 2016 upon either of the two bases to which Buckley J makes reference in Boyce v Paddington Borough Council [1903] 1 Ch. 109 at 114: "A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and to his premises to and from the highway); and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right."
In the High Court's decision in Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493, Stephen J commented at 537, citing the above passage of Boyce: "It is, I think, common ground on this appeal that the general law recognizes no private right of the appellant that has been interfered with. The appellant will accordingly, in the current state of the law, only have standing to sue on one or other of two bases: either because it falls within the principle stated by Buckley J in Boyce v Paddington Borough Council or some development of that principle; or because standing has been conferred upon it by statute, in this case by a combination of the Environment Protection (Impact of Proposals) Act and of the Procedures."
Referring to those authorities, Ms Huang submitted that a private individual can be a plaintiff if the public law right "particularly affects him or her", and therefore that she has standing to seek the orders which she seeks, because she is particularly affected by the inadequate, and corrupt performance of the defendants.

Mr Thornley's Submissions

Mr Thornley's primary submission in support of the Notice of Motion is that Ms Huang does not have standing, as a private citizen, to seek the relief which she claims in the current proceedings, and therefore that the proceedings are an abuse of process because they have no prospects of success: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; In the matter of Bevillesta Creditors' Trust [2013] NSWSC 162; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91.
As well, he submitted that the relief sought by declaration concerns conduct which would not be properly regarded as the proper subject matter for declarations e.g. breaches of the criminal law. The defendants also noted in their submissions, particularly with respect to the legislation relating to the legal profession that in so far as Ms Huang relied upon the Legal Profession Act 1987, and the Legal Profession Act 2004, as the basis for the relief which she claimed, both of those pieces of legislation had been repealed and were no longer in effect.
In relation to the Thornley conduct claims and the Uniform Law claims that Ms Huang makes, Mr Thornley submitted that Ms Huang is not permitted to commence proceedings for any breach committed under the Uniform Law due to her status as a private citizen, and that, further, Ms Huang has no standing to pursue such action in the absence of a statutory right to do so. Mr Thornley does not accept that there is any prospect that any breach by him of the Uniform Law would be established. The other defendants adopt a similar position.
In support of his principal argument about standing, Mr Thornley pointed to the comments of Gibbs J in Australian Conservation Foundation Inc at 526, namely: "It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so."
Mr Thornley submitted that Ms Huang could not have and does not have a relevant interest as described by Gibbs J in Australian Conservation Foundation Inc at 530‑531: "…an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."
Mason J, agreeing with Gibbs J, said at 548: "In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not in itself constitute a sufficient locus standi in a case of the kind now under consideration."
Attention was drawn to the fact that the rule in relation to standing as described by Gibbs J and Mason J was approved by the High Court in Shop Distributive and Allied Employees Association v The Minister for Industrial Affairs (SA) [1995] HCA 11; (1995) 183 CLR 552, where the majority (Brennan, Dawson, Toohey, Gaudron, and McHugh JJ) held at 558: "The question of standing may be disposed of shortly. The union has a large number of members who are employed as shop assistants, many of them in the Central Shopping District. The Act confers no private rights and neither those employed as shop assistants in the Central Shopping District nor the union can have standing to bring an action to compel observance of the Act - to prevent the violation of a public right - unless they can establish the existence of a special interest in the subject matter of the litigation. That is in accordance with the rule established in Australian Conservation Foundation v The Commonwealth which was stated by Gibbs CJ in Onus v Alcoa of Australia Limited (1981) 149 CLR 27 at 35-36 to be as follows: 'A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action.' The rule is flexible and the nature and subject matter of the litigation will dictate what amounts to a special interest."
Mr Thornley submitted that it is clear that no private right of Ms Huang has been interfered with as a result of the conduct which she impugns in her Summons. Therefore, he submitted, Ms Huang would only have standing if she can establish either that she has statutory right to bring the action, or that she has a special interest in the action.
Mr Thornley submitted that Ms Huang "would gain no advantage, other than personal satisfaction, if the [fourth] declaration sought was made", and therefore that Ms Huang has no special interest in the relief sought in respect of the Thornley conduct claims.
Moreover, the third defendant pointed to the provisions of the Uniform Law, and said that it provides for a clear mechanism for the consideration and investigation of complaints against the members of the profession which excludes private citizens from its operation. Therefore, he submits that Ms Huang does not have a statutory right to bring the action which she does.
Chapter 5 of the Uniform Law is, as Mr Thornley submitted, dedicated to "Dispute resolution and professional discipline". Section 260 states that the objectives of the Chapter are: 1. to provide a framework for the timely and effective resolution of disputes or issues between clients and lawyers or law practices; and 2. to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and 3. to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession.
Section 267 provides for a complaint process, whereby any person or body may make a complaint to the "designated local regulatory authority", including the body itself. The "designated local regulatory authority" is defined in s 6 of the Uniform Law as "a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used".
Section 11 of the Legal Profession Uniform Law Application Act 2014 (NSW) (the "Application Act") provides that the designated local regulatory authority for the purposes of Chapter 5 of the Uniform Law is the "NSW Commissioner", which is defined in s 3 as "the person holding office or acting as Legal Services Commissioner under Division 2 of Part 3".
Section 282 empowers the designated local regulatory authority to investigate the whole or part of a complaint, and to appoint a suitably qualified person to conduct a complaints investigation generally, or in relation to a particular law practice, or in relation to a particular complaints investigation.
Section 300 of the Uniform Law further provides that the designated local regulatory authority may initiate and prosecute proceedings against a respondent lawyer in the designated tribunal if the designated local regulatory authority is of the opinion that either the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the designated tribunal, or the alleged conduct may amount to professional misconduct.
These sections, it is submitted, clearly establish differing statutory bodies whose purpose is to uphold the professional standards of the legal profession. The body in NSW is the Legal Services Commissioner, who is empowered to prosecute members of the profession for unsatisfactory professional conduct or professional misconduct, in addition to investigating complaints made against members of the profession. While a "suitably qualified person" can be appointed by the Legal Services Commissioner pursuant to s 300 of the Uniform Law, which is usually one of the two relevant professional associations, it makes no provision for the participation of private citizens in any of the above processes, aside from being the person who chooses to make the initial complaint pursuant to s 267. The right to make a complaint is given to the public at large.
On this issue, the fourth defendant, Dr O'Shea, also drew the Court's attention to s 14 of the Uniform Law, which provides: "14 Functions of local regulatory authority with respect to offence The designated local regulatory authority may - (a) take any steps that in its opinion may be necessary or proper for or with respect to the investigation of any question as to conduct by any entity (whether or not an Australian lawyer) that is, or may be, a contravention of a provision of this Part; and (b) institute prosecutions and other proceedings for the contravention of a provision of this Part by any entity (whether or not an Australian lawyer)."
Dr O'Shea submitted that this section demonstrated a clear legislative intention that relevant complaints be directed to the Legal Services Commissioner, and therefore that Ms Huang did not have a statutory right to seek the declarations that she does in her Summons.
With respect to the Uniform Law claims, the second defendant, Mr Assi, submitted that if Ms Huang wished to allege against the second defendant that the second defendant had improperly provided legal services, and charged for them, when he was not legally permitted to do so, it would be open to her to commence an appropriate action in the Local Court against him seeking damages, or else monetary relief, articulated by Statement of Claim.
The second defendant also objected to the form of the order due to the manner in which the proceedings had been commenced, that is, that proceedings had been commenced against the second defendant in person, and not the defendant company, ILCB, and that they were rolled up with a number of unrelated matters.
The second defendant characterised that order as an action in the abstract which sought only hypothetical relief. The second defendant then took the Court to the decision of Ferguson J (as the Chief Justice then was) in Melbourne City Investments Pty Limited v Worley Parsons Limited [2014] VSC 303, which he cited as authority for the proposition that a declaration seeking an abstract order was an abuse of process. The second defendant drew particular attention to [6] of Ferguson J's judgment, where her Honour said: "A person has standing to enforce a public right provided that either some private right of that person has also been infringed or that the person has a real interest in doing so. The court will not grant relief if a declaration will not produce any foreseeable consequences for the parties. If the person is in no different position to any other member of the public, then the person lacks standing to enforce the public right. The issue of standing is the same whether declaratory or injunctive relief is sought."
In support of her Honour's conclusion that a court will not grant relief if a declaration will not produce any foreseeable consequences for the parties, her Honour drew attention in her judgment to Boyce v Paddington Borough Council at 114 (cited with approval by Gibbs J in Australian Conservation Foundation Inc), and noted that declaratory relief will also not be granted if the question is purely hypothetical: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 582.
The relevant passage of Ainsworth (per Mason CJ, Dawson J, Toohey J and Gaudron J) at 581-582 reads: "It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'."
The decision in Ainsworth was applied by Hall J in McMillan & Anor v Director‑General of Communities NSW [2009] NSWSC 1440. Those proceedings concerned two complaints made by the Commissioner of Police and Manly Council that the quiet and good order of the neighbourhood in Manly was being unduly disturbed. The plaintiffs were the licensees of the two hotels which were subject of the complaints. The plaintiffs sought that a declaration be made that the complaint by the Commissioner of Police was not a valid complaint.
The plaintiffs submitted that that order had "utility" as described in the decisions of Ainsworth and Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82. In the plaintiff's submission such an order would determine a matter which was not hypothetical but which involved the resolution of a legal controversy as to whether the complaint fell within s 79(1) of the Liquor Act 2007 (NSW).
In rejecting the plaintiffs' submissions in McMillan, Hall J said at [17]-[18]: "The present case is also quite unlike the circumstances in Ainsworth (supra) where the High Court made a declaration to the effect that the former Criminal Justice Commission failed to observe the requirements of procedural fairness in producing its report. Although the report did not affect the appellants' legal rights and liabilities, it had and could continue to have adverse practical consequences to their reputations. The fact that the Council's "complaint" did not conform to the statutory provisions for the making of complaints under s 79 was not an act that carried with it either legal significance (as with actions involving unlawful conduct) or practical consequences. The making of a declaration in relation to the Council's complaint would have no utility."
The second defendant submitted that the Uniform Law relief was similar to that sought in McMillan and that the claims ought to be dismissed.

Discernment

It is clear that the Uniform Law does not provide for the involvement of a private citizen in the prosecution of any relevant breaches of legal professional standards beyond the making of an initial complaint to the relevant regulatory body and then, if required, taking part as a witness in proceedings. Following the lodging of a complaint, the process is managed by the statutory bodies nominated in s 11 of the Application Act. There is no provision which obliges or permits (without specific invitation) a private citizen to make submissions to the relevant authority, or any other provision which would indicate a legislative intention to enable members of the community to participate in the decision making process surrounding disciplinary investigations as established by the Uniform Law and the Application Act.
The clear implication of this statutory framework is that it was the legislative intention that a private citizen would not have standing to pursue a legal professional for breaches of the Uniform Law.
I am also satisfied that Ms Huang does not have a "special interest" in the matters which she raises by way of the Thornley conduct claims and the Uniform Law claims. She has not made a complaint under s 267 of the Uniform Law to enliven the jurisdiction of the Legal Services Commissioner. The extent of Ms Huang's interest in the relief which she seeks is that she is the plaintiff in the proceedings in which she alleges that the misconduct occurred.
The test to be applied as to whether this limited interest qualifies as a "special interest" of the kind needed to enliven Ms Huang's standing to seek the order which she does is whether Ms Huang is likely to gain an advantage of a tangible kind other than merely an intellectual satisfaction, or that she is likely to suffer a real and not hypothetical disadvantage if her action fails (other than an order for costs) as described by Gibbs J in Australian Conservation Foundation Inc in the passage from his judgment set out above at [101].
If Ms Huang was granted the relief which she seeks in respect of these two sets of claims, she would gain no advantage apart from the righting of a wrong which she perceives to have occurred. her action was to fail, Ms Huang would not suffer a disadvantage which would go beyond the sense of grievance which she evidently feels as a result of Mr Thornley's impugned conduct and the conduct of the other defendants.
As a result, I am satisfied that Ms Huang has neither a statutory right under the Uniform Law, nor a "special interest" sufficient to give her standing to seek the relief by way of the Thornley conduct claims and the Uniform Law claims.
This conclusion about the absence of standing of Ms Huang to seek relief under the Uniform Law, and that she does not have a special interest in seeking relief under the Uniform Law, is applicable to both the Thornley conduct claims and the Uniform Law claims because the relief sought in those claims is founded on the Uniform Law and the obligation of lawyers pursuant to that legislation.
The determination of the legal question is not attended by any factual controversy nor is it one about which there is any doubt. It is an entirely suitable matter to be dealt with by an application for summary disposal. No party contends otherwise.
It is also necessary to note that, with respect to the first, second and fourth defendants who were retained pursuant to an agreement, although inferentially different agreements for the provision of different services, this determination about the absence of standing does not affect any claim which may rest on a contractual or tortious basis. That is because no such claim is articulated in the current proceedings. Whether such a claim may in fact exist is not a matter upon which I express any view. It would be inappropriate so to do. The point to be made is simply that such causes of action form no part of the current proceedings.
The question, therefore, with respect to the relief which Ms Huang seeks in relation to the second defendant, is whether the subject matter of the declaration (that is, the second defendant's conduct in providing services to Ms Huang which she contends were, in effect, legal services, when she alleges that the second defendant was not qualified to provide such services) is an act which carries with it either legal significance or practical consequences. Declaratory relief will only be granted if the relief is directed to the determination of legal controversies, and not to answering abstract or hypothetical questions.
In Ainsworth, reputational damage was a tangible enough consequence to prevent the declarative relief sought from being characterised as merely "hypothetical". In McMillan, the question of whether a complaint was compliant with the relevant statute was characterised as not enlivening the Court's jurisdiction to make the relevant declaration because the making of the declaration would have no "utility". Aala's case contrasts "utility" with a declaration which has "no legal effect" or from which no continuing legal consequences will flow.
The relief which Ms Huang seeks has sufficient similarities with McMillan, in the sense that it concerns a legal question (whether the services provided by either Mr Assi or ILCB were properly characterised as "legal services"). In other words, the relief sough in the Uniform Law claims against Mr Assi, is hypothetical and without utility.
In the current proceedings, with one exception, the relief arising from the Uniform Law claims relate to the payment of costs in proceedings which have already been determined adversely to Ms Huang and in which costs orders have been made. That relief does not relate directly to the declarations sought with respect to the Uniform Law claims and can, and ought, properly be sought if it is legally soundly based in those proceedings by application to the judge who heard the proceedings, or else on appeal from those proceedings. Such relief is not appropriate in proceedings of this kind where this Court is asked, in effect, to set aside substantive orders of the other Court when it has no jurisdiction so to do.
The only definitive order standing apart from issues of costs which is sought by Ms Huang with respect to the Uniform Law claims is that seeking an order for the second defendant be restrained from providing legal services. This order is unconstrained and applies by its terms to benefit the public at large. For the reasons expressed earlier with respect to the Thornley conduct claims, Ms Huang has no standing to seek such relief and no sufficient interest over and above a member of the general public.
The Thornley conduct claims and the Uniform Law claims cannot be brought by Ms Huang because she has no standing so to do, and are hypothetical. They are without merit and ought be summarily dismissed pursuant to the Court's discretion in r 13.4 of the UCPR.
If I had not reached such a conclusion, having regard to the nature of the application including claims of corruption, it would have been appropriate to have ordered that the plaintiff plead fully her allegations by way of a statement of claim.

Criminal Conduct Claims

It is necessary now to consider whether the criminal conduct claims are liable to be summarily dismissed.
Some of the relief sought by Ms Huang include declarations that the conduct of the defendants variously breached ss 319 and 327 of the Crimes Act.
The second declaration sought by Ms Huang relates to the second defendant and claims that he acted contrary to s 178BA of the Crimes Act and obtained money by deception. The difficulty for Ms Huang with her reliance on this statutory provision is that it was repealed with effect from 22 February 2010 by Schedule 2 of the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009. Any reliance upon a contravention of this section is entirely misplaced.
Section 319 of the Crimes Act is the provision dealing with perversion of the course of justice. It is in the following form: "A person who does any act or makes any omission intending in any way to pervert the course of justice, is liable to imprisonment …"
Section 327 of the Crimes Act is the provision creating the offence of perjury. It reads: "(1) Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceedings, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment …"
In support of his argument that Ms Huang does not have standing to seek relief in relation to the offence of perjury, Mr Thornley drew attention to s 338 of the Crimes Act, which is in the following terms: "338 Restrictions on prosecutions for perjury (1) A person is not to be prosecuted for perjury except: (a) by the Director of Public Prosecutions, or (b) at the direction of the Attorney General, or (c) by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed. (2) ... (3) A person is not to be prosecuted for perjury (except by the Director of Public Prosecutions or at the direction of the Attorney General) unless notice of the proposed prosecution has been given to the Director of Public Prosecutions."
The third defendant submitted that Ms Huang has not sought the leave of the trial Judge who heard the District Court Drumm proceedings, neither has she sought leave of this Court to prosecute either Mr Attapallil or him for perjury. The third defendant accepted that subject to first obtaining an appropriate grant of leave and the giving of due notice to the Director of Public Prosecutions, it was open to Ms Huang to privately prosecute by information either defendant for perjury: s 14 Criminal Procedure Act 1986 (NSW).
Nevertheless, the third defendant submitted that Ms Huang did not have standing to bring these civil proceedings seeking relief in the Summons and that, accordingly, the maintenance of the proceedings, are an abuse of process particularly where Ms Huang had been put on notice that the various orders that she sought were not maintainable at law.
In a letter sent to Ms Huang by solicitors for the third defendant on 2 August 2016, the third defendant addressed the deficiencies which it perceived with the Amended Summons which Ms Huang had filed in the Attapallil proceedings. That letter read as follows: "Summons 2. The complaint against Mr Thornley appears to be that his supporting affidavit sworn in District Court of NSW Proceeding No. 2016/96823 contained "false evidence in relation to a claim that Dr Gibson had used Mr Drumm's Tax File Number of Tax Invoices filed in the Supreme Court Proceedings in matter 2010/425027 which I knew to be untrue" (see [81] to [88] and [150] of Ms Huang's affidavit). 3. In paragraph 40 of his affidavit Mr Thornley deposes as follows: '40 I am informed by Mr Drumm and verily believe it to be true that: a. he did not consent to Mr Gibson using his GST number on the invoices for the CCST; b. he was not aware that Mr Gibson had used his GST number on the invoices for the CCST; and c. the alleged services provided by the CCST were not a taxable supply made by Mr Drumm.' 4. Paragraph 40 does no more than record an instruction given by Mr Drumm to us. This evidence went unchallenged before the District Court and there is no material contained in your affidavit from which it can be found, or inferred, that Mr Thornley was not provided with that instruction or that paragraph 40 otherwise contained 'false evidence'. 5. It was open to your legal representatives to serve admissible evidence if they wished to contradict the factual matters set out in paragraph 40. That did not occur. It seems to us that your complaint is properly against your legal representatives, Mr Attapallil and Mr Assi, for failing to prepare and run your case properly, and not Mr Thornley. 6. It is clear that you have no cause of action against Mr Thornley that will survive an application for summary disposal or strikeout and the proceedings amounts to an abuse of process. Furthermore, the Summons is defective because it does not include a prayer for relief against Mr Thornley or the other defendants. Request that you withdraw the Summons 7. Given the above, we invite you agree to the Summons being dismissed in so far as it seeks relief against Mr Thornley by 5:00pm, 5 August 2016. …"
Solicitors for the third defendant also sent a further letter to Ms Huang on 16 September 2016, outlining issues with the Amended Summons filed in the Attapallil proceedings which raise identical issues to those raised in the current proceedings. The relevant parts of that letter were as follows: "Defects in Amended Summons 2. ... 3. Please provide me with an updated version of the Amended Summons which correctly identifies your additions and deletions. Dismissal of proceedings 4. For the reasons set out below, the relief sought in the Amended Summons is misconceived, vexatious and amounts to an abuse of process. Declarations 5. The relief sought in paragraph 4 and 5 of the Amended Summons is misconceived because; (a) the Legal Profession Act 1987 was repealed in August 2005; (b) the District Court has limited equitable jurisdiction and does not have jurisdiction to make the declarations you seek; (c) you have no standing to seek declarations under the Legal Profession Act 1987 (or its successors); (d) you have no standing to seek declarations under the s 319 or 327 of the Crimes Act 1900. If you wish to make a complaint in respect of the manner in which I have conducted myself as a solicitor, the appropriate course is for you to refer your complaint to the Office of the Legal Services Commissioner (see https://www.Iawsociety.com.au/community/makingacomplaint/index.htm) who will investigate your complaint and take any appropriate action. 7. If you consider that I intended to pervert the course of justice in respect of the District Court of New South Wales Proceedings No, 2016/223849 (TTPA Proceedings), the appropriate course is to send any objective material that you have to the DPP who will consider commencing proceedings under s. 319 of the Crimes Act 1900 (NSW). 8. If you consider that I committed perjury in the TTPA Proceedings, again, the appropriate course is to send any objective material that you have to the DPP who will consider commencing proceedings under s. 327 of the Crimes Act 1900 (NSW). 9. The commencement of proceedings seeking the declarations you have sought is vexatious, an abuse of process, and is an impermissible attempt to side-step the substantive legal requirements put in place for allegations of that nature to be addressed. Referral 10. The relief sought in paragraph 6(a) of the Amended Summons is doomed to fail because the District Court does not have the jurisdiction to order the DPP to investigate matters. 11. It is the ordinary practice of the Court to refer evidence of which it is concerned to the DPP who will consider whether or not to commence proceedings. As set out above, you are able to undertake the same step yourself. 12. In the present case, the appropriate course would be for you to re-list the TPPA proceedings before Williams DCJ arid request that he consider referring the evidence to the DPP. The filing of separate proceedings seeking an order that the Court do so is inappropriate and without legal basis. Damages 13. In respect of the relief sought in paragraph 6(c) and (d) of the Amended Summons, you do not have a cause of action available to you that would sound in damages nor have you suffered any damage as a result of steps that I have taken as a solicitor in those proceedings. Conclusion 14. For the reasons set out above, the proceedings are doomed to fail and will be dismissed by the Court when my summary disposal is heard. …"
The third defendant submits that the correspondence adequately articulated sufficient reasons for the summary dismissal of the proceedings and that Ms Huang had been put on notice with regards to the issues with her Summons in both the Attapallil proceedings and the current proceedings, leaving aside any jurisdictional issues which were dealt with by Gibb DCJ when the Attapallil proceedings were dismissed in the District Court for want of jurisdiction.
It is on this basis that the third defendant puts its argument that the Supreme Court proceedings constitute an abuse of process, with respect to the criminal conduct claims.
Speaking generally, the breach of a criminal law, if able to be proved results in a criminal prosecution which if successful, produces a conviction (or else an order under s 10 of the Crimes (Sentencing Procedure) Act 1999). Where a conviction ensues the individual is sentenced to an appropriate punishment which may, or may not, include a term of imprisonment. It is in this way that a civilised society addresses criminal behaviour.
Such criminal proceedings are resolved by applying the criminal onus of proof, namely proof beyond reasonable doubt. As well, the laws of evidence which apply to criminal proceedings have some provisions which differ from those applicable in civil proceedings.
The current proceedings are civil proceedings. The onus of proof is and remains one on the balance of probabilities, upon which it is significantly easier for a plaintiff to succeed. That is why, except for some particular Estate proceedings, or else proceedings related to some insurance policies, courts generally do not make declarations about the commission of criminal conduct.
If Ms Huang were to succeed in obtaining any of the declarations sought with respect to criminal conduct they would be meaningless. A different onus will have been applied by the Court in considering whether the acts justified the conclusions underlying the declarations sought.
No conviction would result. The Court could not do any act consequent upon such declaration in either is criminal or civil jurisdiction. The declarations would not bind the Director of Public Prosecutions to prosecute any of the defendants. Of themselves, they would not necessarily be persuasive to the Director. The fact of the declarations, without more, would not engage the jurisdiction of the Legal Services Commissioner, unless a complaint was made about the substantive conduct. But such a complaint can be made without the necessity to obtain any declarations.
Any declaration made with respect to commission of perjury would not require the plaintiff to follow any of the procedural steps set out in s 338 of the Crimes Act.
In all of the circumstances, the seeking of the relief with respect to the criminal conduct claims is doomed to fail. There is no basis for Ms Huang to bring the current proceedings with respect to the criminal conduct claims.
For these reasons, I conclude with respect to all of the relief sought in the current proceedings that Ms Huang cannot succeed, and the whole proceedings against all defendants should be summarily dismissed.

Ms Huang's Application to File an Amended Summons

During the course of proceedings on 2 December 2016, Ms Huang sought leave to file in Court an Amended Summons.
The effect of that Amended Summons is to add some further orders to those which are presently sought by Ms Huang. The additional orders are that: 1. the first, third and fourth respondents be referred to the Legal Services Commissioner for investigation in relation to the alleged corruption of the District Court Drumm proceedings; 2. the plaintiff be permitted to proceed with the matter by Statement of Claim pursuant to r 6.6 of the UCPR; 3. that various identified paragraphs of various affidavits filed by the second and third defendants be struck out or otherwise not read; 4. pursuant to r 10.5(2)(c) of the UCPR that the first defendant is taken to have been served electronically at his legal practice email address.
The second order present in the initial Summons, that the second defendant be restrained from providing legal services, is also amended to have the words "as a matter of public good and in further protection of the community" added to the end of the order. It is not clear that these words add anything of substance to the existing order.
Ms Huang submitted that the Court has power to exercise its discretion to permit an amendment of pleadings pursuant to s 64(3) of the Civil Procedure Act. The propose amendments do nothing to cure the fundamental defects in the existing Summons. They do not address any matters of substance. It is not in the interests of justice that Ms Huang ought to be allowed to amend, in the way proposed, an already defective pleading.
The application by Ms Huang to file an Amended Summons must be dismissed.

Additional Considerations

It is appropriate to add an additional basis for my conclusion to summarily dismiss the proceedings.
Consistently with the remarks of White JA in Huang v Attapallil [2017] NSWCA 181 at [6], the current proceedings are properly to be described as "satellite litigation". They relate to, and arise from the unfavourable result which Ms Huang obtained in the District Court Drumm proceedings. The various allegations relate to the conduct of the defendants in undertaking their respective roles in those proceedings, which Ms Huang asserts caused her to lose those proceedings.
As a result of the appeal to the Court of Appeal by Ms Huang from the decision in the Drumm District Court proceedings, the adverse result obtained by Ms Huang has been set aside, and the proceedings have been transferred to this Court.
They have not yet been determined. They will be determined fully on the evidence presented and Ms Huang will have a proper opportunity to put such submissions as she may wish to.
In those circumstances, even if the current proceedings were to be heard, it would not be appropriate to do so until after the District Court Drumm proceedings are finally determined in this Court. The proceedings as presently formulated bear no relationship to any future, and at present unknown, outcome of the substantive proceedings.
At all times, satellite litigation of the kind in the proceedings must be carefully scrutinised to ensure that the overriding purpose in s 56 of the Civil Procedure Act is promoted. As well, it needs also to be carefully examined to ensure that it is not vexatious or oppressive. Particularly is this so where the underlying substantive proceedings are yet to be finally determined.
These remarks indicate that, had I not reached the conclusions earlier expressed, I would have concluded that in all the circumstances the continuation of these proceedings in their current format was vexatious and an abuse of process. Such conclusion would also lead to their dismissal.

Orders

The Court orders: 1. Leave is refused to the plaintiff to file an Amended Summons dated 1 December 2016. 2. Order that the whole of the proceedings as commenced by Summons dated 8 November 2016 be dismissed. 3. Order the plaintiff to pay the 3rd defendant's costs. 4. Reserve to the 3rd defendant the right, exercisable within 14 days, to seek an alternative order for costs. 5. Liberty to apply with 48 hours' notice.

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. Decision last updated: 10 November 2017

Legal Profession Act 2004(NSW)

Barristers Rules 2014(NSW)

Legal Practitioners Act 2004(NSW)

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