• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Representation: Counsel:
W Evatt (Plaintiff)
Solicitors:
CMC Lawyers (Plaintiff)
BlackBay Lawyers (Defendant)

File Number(s): 2025/00269339

Publication restriction: Nil

JUDGMENT

1. This decision concerns two notices of motion, both filed by the defendant, one on 10 October 2025 and the other on 6 November 2025.

2. This matter was commenced by the filing of a statement of claim on 14 July 2025 by the plaintiff, Mr Steven Kelly. Mr Kelly’s son, Steven Robert John Kelly Jr (‘Steven’), was a participant in the National Disability Insurance Scheme (‘NDIS’) and suffered from a number of medical conditions. On about 1 July 2022, Steven moved in to supported accommodation in Yamba in the State of New South Wales. It is alleged that Justiz Community Limited (‘Justiz’) was responsible for the “provision of overnight care and support” to residents of the supported accommodation. On 15 July 2022, at about 8:20 am, Steven was found to be unresponsive in his room and he could not be revived. He was pronounced dead at 9:10am.

3. In his statement of claim, Mr Kelly alleges that Justiz was negligent in many respects in undertaking the overnight care and support for which it was responsible and further alleges that the alleged negligence “substantially contributed to the death of the deceased by failing to coordinate and implement the supports necessary for his safety”.

4. Mr Kelly seeks damages.

5. Mr Kelly filed a Statement of Particulars on 14 July 2025 which particularise the alleged injuries suffered by him in relation to which damages are sought.

Notice of Motion filed on 10 October 2025

6. The notice of motion filed on 10 October 2025 (‘the first NOM’) seeks the following orders:

1. That the Statement of Claim filed by the Plaintiff on 14 July 2025 be struck out in its entirety pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“Rules”) on the basis that it constitutes an abuse of process.

2. That the Plaintiff be restrained from filing any further proceedings against the Defendant in relation to the subject matter of these proceedings without first obtaining leave of the Court.

3. The Subpoena to Produce issued at the request of the Plaintiff on 25 September 2025 and addressed to:

(a) the Defendant; and

(b) National Disability Insurance Group Agency

(Collectively the “Subpoena”)

be set aside pursuant to r 33.4 of the Rules, and/or the inherent jurisdiction of the Court, on the grounds that the Subpoena:

(c) has been issued for an improper collateral purpose, namely to obtain evidence to determine whether a cause of action exists rather than to prove an existing pleaded case; and/or

(d) otherwise as a substitute for discovery.

4. That the Plaintiff pay the Defendant’s costs of and incidental to this application on an indemnity basis.

5. That the Plaintiff pay the Defendant’s costs of the proceedings to date on an indemnity basis.

6. Such further or other orders as the Court deems fit.

7. An affidavit of Mr Dragan Gasic dated 10 October 2025 was filed with the first NOM. Mr Gasic is the solicitor for Justiz.

8. The Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) provide, in r 14.28:

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

The defendant emphasised that it relies solely on r 14.28(1)(c).

Notice of Motion filed on 6 November 2025

9. The notice of motion filed on 6 November 2025 (‘the second NOM’) seeks the following orders:

1. The Subpoena to Produce issued at the request of the Plaintiff on 25 September 2025 and addressed to:

(a) NSW Police; and

(b) NSW Ambulance;

(‘Collectively the “Subpoena”)

be set aside pursuant to r 33.4 of the Rules and/or the inherent jurisdiction of the Court, on the grounds that the Subpoena:

(c) has been issued for an improper collateral purpose, namely, to obtain evidence to determine whether a cause of action exists rather than to prove an existing pleaded case; and/or

(d) otherwise as a substitute for discovery.

2. That the Plaintiff pay the Defendant’s costs of and incidental to this application on an indemnity basis.

3. Such further or other orders as the Court deems fit.

10. The Civil Procedure Act 2005 (NSW) provides, in s 68:

68 Attendance at court and production of documents and things to court

Subject to rules of court, the court may, by subpoena or otherwise, order any person to do either or both of the following—

(a) to attend court to be examined as a witness,

(b) to produce any document or thing to the court.

11. The UCPR says, in r 33.4:

33.4 Setting aside or other relief

(1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

(2) An application under subrule (1) must be made on notice to the issuing party.

(3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

12. An affidavit of Mr Gasic dated 6 November 2025 was filed with the second notice of motion.

The defendant’s arguments

13. The defendant relied upon events which occurred in the course of the procedural history of the matter.

14. On 6 June 2025, the plaintiff filed a summons seeking preliminary discovery. In support of that application, Ms Tegan Wills, the solicitor for the plaintiff, swore an affidavit in which she described the matter as concerning a “potential claim”. Ms Wills said, in the affidavit, that she had formed the view that “it was essential to gain access to the documents of Justiz Community (“the Respondent”) who provided care to the Deceased during the night”.

15. On 26 June 2025, Ms Wills swore a further affidavit in the matter, in support of the summons. In paragraph 5 of this affidavit, Ms Wills said:

In my experience as a lawyer in nervous shock and related claims, I have formed the view that there exists the possibility of a case. The production of documents sought in this Summons will allow me to provide the proper advice in relation to prospects in addition to whether the Respondent is a potential Defendant.

16. On 27 June 2025, the preliminary discovery application was heard. The application was dismissed. In dismissing the application, ex tempore, Judge Olsson said (among other things):

Hatfield makes it pretty clear, that’s Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69 at in particular paras 47 to 52 per McColl JA that in essence it must appear the applicant may be entitled to make a claim, well I’m not satisfied about that. The applicant must have made reasonable inquiries, well other than actually asking the NDIS providers for the information that’s the subject of this application there don’t seem to have been many other inquiries made. And despite those inquiries is unable to obtain sufficient information to decide whether to commence proceedings and whether the material would assist the applicant in deciding. The defendant says and I agree there’s no identified incident or factual narrative capable of giving rise to a claim in negligence. You didn’t even tell me what the cause of death was.

17. The defendant argued that the two affidavits sworn by Ms Wills in relation to the preliminary discovery application disclose that:

… at the time of filing, Ms Wills did not possess evidence to demonstrate a reasonable belief that the plaintiff may have the right to obtain relief from the Defendant. The admissions that (a) the matter concerned only a potential claim, (b) that it was essential to obtain access to the defendant’s documents, and (c) that production would allow for proper advice in relation to prospects, give rise to a series of presumptions concerning the factual and procedural posture of the proceedings.

18. On 14 July 2025, Ms Wills certified, upon the filing of the statement of claim, under clause 4 of Schedule 2 of the Legal Profession Uniform Law Application Act 2014 (NSW) “that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim for damages in these proceedings has reasonable prospects of success”.

19. The defendant argued that “nothing changed” in the period of time between the decision of Judge Olsson on 27 June 2025 and the filing of the statement of claim on 14 July 2025. The defendant alleged that “the statement of claim was filed to obtain, through a compulsory process, what preliminary discovery refused”. Implicit in that argument is the suggestion that Ms Wills could not have changed her opinion from believing, on 26 June 2025 when she swore her affidavit, that there was a possibility that the defendant had a case but that she needed more information to give proper advice, to having formed the view the subject of the certificate she signed on 14 July 2025, namely, that the claim has reasonable prospects of success.

20. The defendant argued that, where the predominant purpose of proceedings is outside of the proper purpose for proceedings of that kind, then that predominant purpose is an improper purpose and the proceedings constitute an abuse of process. The defendant relied on the decision of the High Court in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (‘Williams v Spautz’). The facts giving rise to Williams v Spautz involved the laying, by Dr Spautz, of a series of information against three people, being Professor Williams, Mr Morris and Mr Gibbs; for criminal defamation with respect to Professor Williams, conspiracy with respect to Mr Morris and both criminal defamation and conspiracy with respect to Mr Gibbs. It was alleged against Dr Spautz that these prosecutions had been brought for a number of improper purposes, including to achieve the reinstatement of Dr Spautz to a position from which he had been dismissed at the University of Newcastle. In the majority judgment, Mason CJ, Dawson, Toohey and McHugh JJ discussed the “boundaries of abuse of process” and adopted the rule set out by Lord Evershed MR in I**n re Majory (1955) Ch 600 at 623-624:

… that court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceeding he has abused.

It was accepted by the majority in Williams v Spautz that the onus of satisfying the court that there is an abuse of process lies on the party alleging it. It was held that what needs to be established is that the predominant purpose of using the legal process was a purpose other than the purpose for which the legal process in question was designed (see [42] of the majority decision).

21. In the present matter, the defendant seeks to establish that the statement of claim was filed for the predominant purpose of gathering information by compulsory process in circumstances where the plaintiff did not have information which was capable of forming the basis of a tenable cause of action. The defendant argues that such a purpose constitutes an improper purpose, and the proceedings are therefore an abuse of process and should be set aside under r 14.28(1)(c) of the UCPR.

22. The written submissions filed for the defendant contain a long, detailed, forensic examination of the language in Ms Wills’ affidavits in support of the submission that Ms Wills did not, at the time of Judge Olsson’s decision, believe that the claim had a reasonable prospect of success.

23. Essentially, the defendant argued that, as the application for pre-trial discovery failed on the basis that “no identified factual narrative capable of giving rise to a negligence claim” had been established by 27 June 2025, then no such factual narrative could have arisen by 14 July 2025. In summary, the argument is that it can be assumed that no new information came into the plaintiff’s possession between 27 June 2025 and 14 July 2025, and, in the absence of such new information, no belief that the claim had a reasonable chance of success could have formed in Ms Wills’ mind during that period of time.

24. The defendant argued, in his written submissions:

5.3 … Ms Wills subsequently filed and certified a statement of claim, asserting reasonable prospects of success. That act gives rise to an irreconcilable paradox – by filing the claim, Ms Wills invoked the Court’s adjudicative function on the premise that the cause of action already existed, while the earlier admissions and the failed discovery application confirmed that no evidentiary basis for such a cause yet existed.

5.4 This paradox exposes the conflation of two judicial functions, the investigative function of preliminary discovery and the adjudicative function of a substantive claim, resulting in the Court’s processes being used for a purpose outside their proper scope. Once that conflation occurs, the only natural inference available is that the Statement of Claim was not filed to obtain substantive relief, but was instead deployed as a procedural instrument to obtain discovery of documents, thereby bypassing the proper mechanisms for obtaining evidence in personal injury proceeding under UCPR 21.8

25. It was argued by the defendant that the statement of claim, which particularised the allegation of negligence against the defendant in paragraph 24 a. to q.:

… generated noise, a rhetorical structure of particulars, allegations, and headings that simulates legitimacy where none exists. This “noise” operates to mask the lack of evidentiary content and to legitimise a process whose true function is to gain access to documents for the purpose of retrofitting the pleadings to whatever evidence might later emerge.

26. The defendant sought to have the statement of claim struck out or, in the alternative, stayed permanently.

The plaintiff’s arguments

27. The plaintiff relied on the decision of the Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, who said at [8] – [10]:

8. The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". (at p129)

9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". (at p129)

10. As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 VOL CXII-9 where he says (1949) 78 CLR, at p 91 : "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. (at p130)

28. The plaintiff submitted that the defendant’s assertion that the statement of claim was filed in an evidentiary vacuum is speculative. The plaintiff says, in his written submissions:

48. This submission ignores the possibility that the plaintiff may or may not already have had evidence which it obtained outside of the preliminary discovery application. A plethora of evidence has already been provided to the defendant in these proceedings have substantively forwarded to the defendant in response to its request for further and better particulars [sic], a copy of which is included in the defendant’s affidavit.

49. The defendant’s submissions suggest that all evidence must be complete upon the filing of the proceedings. This is quite simply at odds with how proceedings are practically run – the UCPR and the District Court Practice Note 16 on Case Management in the General List contemplate Subpoenas, the exchange of further and better particulars and finalization of evidence as part of common procedure. Rather, what is required when commencing proceedings is that a pleading disclose and particularise a recognised cause of action and that the plaintiff assume the forensic risk of proving the pleaded facts.

29. The plaintiff submitted that the predominant purpose of the statement of claim was “the exercise of legal remedies available to the plaintiff which are said to arise from the death of the plaintiff’s son while in the care of the defendant as an NDIS provider”.

30. The plaintiff submitted (in summary) that it could not be assumed, or inferred, that Ms Wills lacked the requisite state of mind to complete the certificate which accompanied the statement of claim. The point was made that all of the evidentiary material in the possession of the plaintiff at the time of the filing of the statement of claim was not before Judge Olsson. In addition, it was argued, the defendant’s argument fails to take into account the real possibility that Ms Wills, having reviewed all of the information available to her, and possibly discussed the matter with counsel, may have come to a different view of the case by the time she provided the certificate from the view she took in her affidavits.

Consideration

31. The defendant bears the onus of establishing that the statement of claim constitutes an abuse of process (see [20], above).

32. In order to succeed on the argument advanced, the defendant must establish that Ms Wills held the view, on 27 June 2025, that reasonable grounds for believing, on the basis of provable facts and a reasonably arguable view of the law, that the plaintiff’s claim for damages had a reasonable chance of success, did not exist and that she did not change her view by 14 July 2025.

33. Even if I were to find that Ms Wills held the view the defendant argues for on 27 June 2025, I could not “infer” that she did not change her mind during the succeeding seventeen days. It is a serious matter to allege that a legal practitioner has given a false certificate, and I do not consider that a factual basis for that allegation has been established on the balance of probabilities or at all in this matter. For the reasons argued by the plaintiff, I cannot find that Ms Wills did not hold the belief set out in the certificate of 14 July 2025. I have no information about what evidence Ms Wills is in possession of, or when she acquired it. I do not know what advice Ms Wills may have received from counsel. It is possible that Ms Wills spontaneously reviewed the views she expressed in her affidavits and sincerely took a different view of the facts and the law. That would not be surprising, given that the statement of claim was being drafted at the relevant time.

34. It is plain that the predominant purpose of all of the efforts expended on behalf of the plaintiff by his solicitors in relation to the statement of claim is to seek legal redress in relation to the death of the plaintiff’s son. It cannot be said that the predominant purpose of the filing of the statement of claim was to obtain information by compulsory process. The seeking of information is for the purpose of the claim, not vice versa.

35. The defendant has not established that the filing of the statement of claim was an abuse of process.

36. The grounds for relief sought by the defendant in relation to the subpoenas the subject of both of the notices of motion depend upon the defendant having established that each subpoena has been issued for an improper collateral purpose or as a substitute for discovery. The defendant has not established either of those allegations as a matter of fact. The applications for the setting aside of the subpoenas, accordingly, fail.

Orders

37. The following orders will issue:

38. The notice of motion filed on 10 October 2025 is dismissed.

39. The notice of motion filed on 6 November 2025 is dismissed.

40. The defendant is to pay the plaintiff’s costs of the notice of motion filed on 10 October 2025 and the notice of motion filed on 6 November 2025 on an indemnity basis.

**********