[2000] NSWCA 80
O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698[2013] NSWCA 315
Optus Networks Pty Ltd v Telstra Corp Ltd (2010) 265 ALR 281[2010] FCAFC 21
R v O'Halloran [2000] NSWCCA 528(2000) 182 ALR 431159 FLR 260
Reichel v McGrath (1889) 14 App Cas 665
Rippon v Chilcotin (2001) 53 NSWLR 198[2001] NSWCA 142
Rogers v The Queen (1994) 181 CLR 251
[1994] HCA 42
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Spencer v Commonwealth (2010) 241 CLR 118
[2001] UKHL 16
Ugur v Attorney General for New South Wales [2019] NSWCA 86
UBS AG v Tyne (2018) 265 CLR 77
[2018] HCA 45
Walton v Gardiner (1993) 177 CLR 378
Judgment (17 paragraphs)
[1]
ee Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] UKHL 16
Ugur v Attorney General for New South Wales [2019] NSWCA 86
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
Texts Cited: Nil
Category: Principal judgment
Parties: Lynette Maria Martin (Plaintiff)
Allianz Australia Workers Compensation (NSW) Ltd (First Defendant)
Allianz Australia Insurance Ltd (Second Defendant)
Representation: Counsel:
In person with McKenzie Friend L J Shelley (Plaintiff)
M Karam (Defendants)
On 7 December 2023 the plaintiff filed a statement of claim seeking:
1. Compensation for the reduction in my above average income for the first time in my life to live in penury on a government pension and ultimately in public housing.
2. Compensation for my loss of my ability to work and live a normal, happy life for over 26 years.
3. Compensation for future and past pain and suffering for over 26 years and for continuing in increasing pain and mental stress until I die.
The amount claimed was $50 million together with $5,000 each for filing and service of the statement of claim.
Two defendants were named being Allianz Australia Workers Compensation (NSW) Ltd, ACN 003 087 545 and Allianz Australia Insurance Ltd, ACN 000 122 850.
The plaintiff's claim has its origins in a workplace injury which occurred on 4 July 1996. The second defendant, whose predecessor provided workers compensation insurance to the plaintiff's employer, denied the plaintiff's claim for compensation. That denial led to proceedings by the plaintiff against her former employer and a hosting employer in the District Court. Those proceedings were heard from 1 to 3 February 2000. The plaintiff was unsuccessful.
The plaintiff later commenced proceedings in the Compensation Court of New South Wales ("NSWCC") against her former employer. Those proceedings were resolved in 2003.
In her statement of claim the plaintiff claims to have discovered on 23 September 2022:
Important legal evidence dating back to August 2004 that revealed and confirmed the insured entity in my personal injury hearings was Julia Ross Recruitment ACN 003758709 i.e. the Company I worked for when I was injured.
The statement of claim appears then to assert that her employer company acted in a fraudulent manner by substituting another company as a defendant in the District Court proceedings with the result that those proceedings were brought against the wrong company as her employer.
The present defendants are said to be liable because they "would have or should have been cognisant" of the fraud by the plaintiff's employer. As best as can be determined, the claim made by the plaintiff against the defendants seems to be a breach of the duty of care which they are said to have owed to her by not advising the District Court, the plaintiff's lawyers at the time and the plaintiff that the proceedings "had been rendered null and void" because of the fraud perpetrated by the plaintiff's employer.
By a notice of motion filed 26 March 2024, the defendants seek summary dismissal pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), alternatively, that the pleading in the statement of claim be struck out pursuant to r 14.28 UCPR.
[4]
The injury and the resultant proceedings
On or about 28 June 1996, the plaintiff entered temporary employment with Julie Ross Personnel Pty Ltd (ACN 003 738 709) ("ACN 709"). That company placed relief staff with businesses requiring temporary personnel. The plaintiff was assigned to work for Gow Gates Insurance Brokers Pty Ltd ("Gow Gates").
On or about 4 July 1996, whilst lifting archive boxes at Gow Gates, the plaintiff suffered an injury to her back. She lodged a claim for workers compensation against ACN 709's statutory workers' compensation insurer, MMI General Insurance Ltd (now known as the second defendant). At the time, the present first defendant, then known as MMI Workers Compensation (NSW) Limited, provided claims management services in respect of the plaintiff's claim.
In June 1997, the second defendant denied the plaintiff's claim.
In 1997, the plaintiff commenced proceedings in this Court against Gow Gates claiming $150,000 for an alleged breach of Gow Gates' duty of care to her. The proceedings were transferred to the District Court where the quantum of damages sought was increased to $750,000. ACN 709 was added as a second defendant by the filing of an amended statement of claim in about October 1999.
The proceedings were heard in the District Court from 1 to 3 February 2000 by Judge Boyd-Boland. On 2 February 2000, Gow Gates and ACN 709 made a written offer to settle the District Court claim for $250,000 inclusive of costs. One of the allegations now made by the plaintiff is that the settlement offer was never conveyed to her by her former solicitors, Gerard Malouf & Partners Pty Ltd, or by the defendants or their directors.
For whatever reason, the proceedings did not settle. On about 16 February 2000 Judge Boyd-Boland delivered judgment. While his Honour accepted that the plaintiff had been injured at about the time she alleged, he found that the plaintiff had failed to establish that the boxes she lifted were heavy. He did so by accepting the evidence of a Ms Maroney who was an employee of Gow Gates. His Honour said:
The evidence has failed to establish that the boxes were heavy. Indeed the only evidence I accept is that they were not. The Plaintiff proceeds against both Defendants making the same allegations of negligence and breach of duty by each. The Plaintiff has therefore failed on a balance of probabilities to establish the first fundamentals of her case. She has not shown she sustained severe injury, if in fact she did, by virtue of "lifting heavy boxes". Her case must fail against both Defendants.
[5]
(a) Proceedings 2020/337173
On 27 November 2020 the plaintiff commenced proceedings in this Court against Gerard Malouf and Vrege Kolokossian (wrongly described in the statement of claim as Kolossian), the principals of Gerard Malouf & Partners, as well as their employed solicitor Sasho Petrovski. She also named as defendants Stephen Vardanega and Michael Roberts, the principals of Vardanega Roberts who were the solicitors acting for the insurer of ACN 709 (the present second defendant), as well as Nicholas James Studdert, an employed solicitor at Vardanega Roberts. The relief claimed was in identical terms to the relief sought in the present proceedings but the amount of the claim was $48 million together with $2,000 for filing fees, $5,000 for service fees and $25,000 for solicitors fees.
Messrs Vardanega, Roberts and Studdert by a notice of motion sought orders summarily dismissing the proceedings under r 13.4 UCPR. The motion was heard by Schmidt AJ on 21 April 2021. On 23 April 2021, her Honour dismissed the proceedings pursuant to r 13.4 UCPR: Martin v Malouf [2021] NSWSC 415. In the course of her judgment, Schmidt AJ summarised the plaintiff's allegations as follows:
[8] …By her pleadings she accuses Gerard Malouf and Partners not only of what amounts to negligence, but also of cheating and a deliberate failure to obtain financial compensation for her work injury, with her last attempt to obtain compensation having occurred in November 2003.
[9] Ms Martin also claims that Gerard Malouf did not disclose to her an offer of settlement of her common law action, of which she only became aware in 2020 when a copy of the offer was provided to her anonymously and of failing to submit evidence of the acceptance of her workers compensation claim. She also claims to have been "in a stupor over making an appeal" until about June 2020, when she prepared an action for damages of $12million against Gerard Malouf.
…
[12] What the pleadings do not disclose is the basis of Ms Martin's claims against Mr Vardanega, Mr Roberts and Mr Studdart (sic). That was explained in her written and oral submissions and affidavit.
[13] There Ms Martin advanced various serious allegations, including of Mr Vardanega, Mr Roberts and Mr Studdart conspiring in 2003 with the other defendants to illegally remove her compensation rights against Julia Ross Personnel; co-operating in identity theft; perverting the rule of law to strip her of her workers compensation rights; conspiring to pervert the course of justice by conducting proceedings without her knowledge, approval or presence; fabricating a settlement and admissions; as well as perjury and forgery.
[6]
(b) Proceedings 2022/29516 and 2022/29613
On 5 October 2022 the plaintiff filed two statements of claim in this Court. The first (2022/29516) named as defendants Julia Mary Ross and six other persons associated with her companies. The relief sought was in identical terms to what was sought in the present proceedings and claimed $50 million together with $3,000 for filing fees and $1,000 for service fees. Although the pleading in that statement of claim ranged over the matters contained in the present statement of claim in relation to the District Court and the NSWCC proceedings, the essence of this claim was the allegation of fraud against Julia Ross in relation to the naming and changes of names of her companies, leading to the assertion that the wrong company had been sued, and that was alleged to be why the plaintiff did not win her cases.
The second set of proceedings filed on that day (2022/29613) named six lawyers who acted for and against her in the District Court and the NSWCC proceedings. The three defendants from Vardanega Roberts were sued again, in addition to Phillip Beale (the plaintiff's barrister in the NSWCC proceedings), Deborah Moore (the barrister for the defendants in the NSWCC proceedings), and Danny Feller SC, a barrister who appeared on behalf of the Vardanega defendants before Schmidt AJ. The relief claimed was the same as in the present proceedings, with the addition of:
Compensation for the emotional damage and disruption to my family and myself caused by my significant physical injuries.
The amount claimed was $30,000,000 together with $3,000 for filing fees and $1,000 for service fees.
The substance of the claim was the same, namely, that a fraud had been perpetrated on the plaintiff by Julia Ross personnel, with the lawyers said to be liable for not carrying out ASIC searches to ensure that the correct company was sued.
Motions were brought in the proceedings against Julia Ross by three of the defendants for summary dismissal and by the Vardanega Roberts defendants in the proceedings against the lawyers. These motions were heard by Chen J who delivered judgment on 30 March 2023: Martin v Ross & Ors; Martin v Vardanega & Ors [2023] NSWSC 303. In both cases, the proceedings against the defendants were dismissed pursuant to r 13.4 UCPR.
In his judgment Chen J dealt with the change of name of the plaintiff's then employer as follows:
[16] The plaintiff was employed by Julia Ross Personnel Pty Ltd (ACN 003 758 709) - the entity described in these reasons as 'Julia Ross'. On 5 August 1999, Julia Ross changed its name to Julia Ross Recruitment Pty Ltd. In May, and later in August, 2000, that entity became an unlisted, but later a listed, public company. In 2003 it changed its name to Ross Human Directions Ltd - its current identity.
[7]
Summary judgment
The relevant principles for summary dismissal were summarised by the Court of Appeal in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 at [196]-[200] by Gleeson JA, Beazley P and Barrett JA agreeing, as follows:
[196] It is not in dispute that "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 cause by the appointed tribunal": General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ).
[197] More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]:
"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
[198] Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24].
[199] In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]:
"The question is...whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated."
[200] Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].
However, it is not only in cases where, taking the plaintiff's evidence at its highest, it could not arguably give rise to the relief claimed, that proceedings may be summarily dismissed. Where one can say with confidence before a trial that the factual basis for the claim is fanciful because it is entirely without substance, that provides a basis for summary dismissal also: Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] UKHL 16 at [95]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [21]; Ugur v Attorney General for New South Wales [2019] NSWCA 86 at [118]-[119].
[8]
Abuse of process
The notion that relitigating an issue by a party against whom the issue had been determined in other litigation could not be permitted appears to have been derived from Reichel v McGrath (1889) 14 App Cas 665. In that case Lord Halsbury LC said at 668:
My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.
In Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Lord Diplock referred to collateral attacks upon a final decision of a court of competent jurisdiction taking a variety of forms. One of those was the position, as described by Lord Halsbury LC in Reichel, being that an identical question sought to be raised has already been raised and decided by a competent court (see at 542).
The High Court has followed both these decisions in Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at 393 and Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 77 at 287-288.
In Rippon v Chilcotin (2001) 53 NSWLR 198; [2001] NSWCA 142 the Court of Appeal was concerned with an attempt to litigate or relitigate issues which were either decided in or were barred by earlier proceedings. The party concerned was attempting to relitigate an issue on which it had lost in previous proceedings. The Court of Appeal first approved what had been said by Hunt CJ at CL in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414 and then set out with approval what had been said by Giles CJCommD in State Bank of NSW Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81-423 at 64089 as follows:
The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are -
(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; …
(f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
[9]
Consideration
The defendants submitted that the plaintiff's assertions in the proceedings could be distilled to four central allegations:
(a) The Defendants and their directors breached a duty of care to the Plaintiff by failing to notify the District Court, the Compensation Court and the Plaintiff that she had incorrectly joined ACN 164 instead of ACN 709 (Incorrect Defendant Allegation);
(b) The Defendants and their directors breached a duty of care to the Plaintiff by failing to provide her with the Settlement Offer in the District Court Claim (Settlement Offer Allegation);
(c) The Defendants and their directors breached a duty of care to properly compensate the Plaintiff for her workplace injury (Inadequate Compensation Allegation); and
(d) The Defendants and their directors allowed the theft and disclosure of the Plaintiff's personal injury records (Unauthorised Disclosure Allegation).
I agree that this is a correct assessment of the claims being made by the plaintiff in the statement of claim.
In relation to the Incorrect Defendant Allegation, the Settlement Offer Allegation and the Inadequate Compensation Allegation the defendants submitted that there were two reasons that the claims should be summarily dismissed. The first was that the claim amounts to an abuse of process because it is a collateral attack on the determinations made in the District Court and the NSWCC as well as the decisions of Schmidt AJ, Elkaim AJ, Chen J and Harrison AsJ. The second basis is that the claim does not disclose a reasonable cause of action because the defendants owed no duty of care to the plaintiff to ensure that a particular defendant was sued in District Court or the NSWCC or to ensure that a settlement offer conveyed by them to the plaintiff's lawyers was passed on to her, or to ensure that she obtained compensation.
[10]
Abuse of process
In Martin v Ross [2023] NSWSC 1353 Harrison AsJ held that the proceedings brought against directors of the Julia Ross companies represented a collateral attack on the correctness of the District Court and the NSWCC proceedings. In my opinion, the Incorrect Defendant Allegation and the Inadequate Compensation Allegation in the present proceedings similarly amount to a collateral attack not only on those judgments, but also on the judgments of Schmidt AJ and Chen J. The same relief had been sought in all of the proceedings, with the only difference being the amount of money claimed. The same issues were raised by the plaintiff, namely, that a fraud had been perpetrated in relation to the identity of the defendant in the proceedings, and that she was not present at the settlement of the claim in the NSWCC. The fraud has been said to have been perpetrated by a number of people including the solicitors who acted for the present defendants. Indeed, it is arguable that the present defendants' lawyers were privies of the present defendants so that an estoppel arises for the claims that are now being made against the defendants in the present proceedings in the light of the dismissal of those proceedings by Chen J. However, it is not necessary to decide that point because those claims constitute an abuse of process for other reasons which follow.
The plaintiff did not appeal against the District Court decision, nor did she seek to set it aside on the basis of what she has described as an illegality. She has never sought to set aside the judgment in the NSWCC on the basis that she did not agree to it. To allege the fraud in relation to the District Court proceedings and to allege that she did not agree to the consent judgment in the NSWCC as she does in the present proceedings amounts to a collateral attack on those judgments.
It is clear in any event that those issues themselves were raised by the plaintiff in the earlier proceedings and were determined adversely to her by Schmidt AJ, Chen J and in one respect by Elkaim AJ. It can be accepted that, apart from the findings made by Elkaim AJ at [25] and [37] of his Honour's judgment (see at [32] above), his Honour was determining only if the proceedings should be permanently stayed, and not whether any reasonable cause of action was demonstrated.
Determinations made in those cases are as follows:
(1) Judge Boyd-Boland in the District Court found that the plaintiff failed to establish that the boxes were heavy and had not shown she sustained severe injury, if in fact she did, by virtue of "lifting heavy boxes". For that reason his Honour found that her case must fail.
(2) Compensation was awarded in the Compensation Court following an agreement reached between the parties which involved the plaintiff signing a number of admissions and lawyers for both parties filing a document of agreed facts. The compensation was paid to the plaintiff. Those proceedings were not initiated nor settled without her authority: Schmidt AJ at [25]-[31].
(3) Although the plaintiff claimed that the admissions document was forged, Schmidt AJ found that, although the plaintiff had the document examined by a handwriting expert, the expert could not detect such a forgery (at [23(5)]). That determination is in any event borne out by the handwriting examiner's report which is in evidence before me.
(4) Acting Justice Elkaim found that a letter from the plaintiff's solicitors, Gerard Malouf & Partners, of September 2003 contradicted the plaintiff's claim that she was not aware of the Compensation Court hearing until 2020 (at [25]).
(6) Justice Chen and Harrison AsJ found that the proceedings in the District Court were commenced against the correctly named employer, that the plaintiff failed in her claim in the District Court because she did not prove negligence and not because of anything to do with the name or identity of her employer, and that in any event the second defendant was at all times the statutory insurer so that even if the plaintiff's employer had been wrongly named nothing would have turned on the matter (Chen J at [51]; Harrison AsJ at [64]).
[11]
No reasonable cause of action
In my opinion, the claims constituting the Incorrect Defendant Allegation, the Settlement Offer Allegation, the Inadequate Compensation Allegation and the Unauthorised Disclosure Allegation should be dismissed on the basis that no reasonable cause of action is disclosed for the reasons which follow.
[12]
(a) The Incorrect Defendant Allegation
The plaintiff was employed by Julia Ross Personnel Pty Ltd (ACN 003 758 709). On 5 August 1999 that company changed its name to Julia Ross Recruitment Pty Ltd. On 29 June 1999 Julia Ross Recruitment Pty Ltd (ACN 088 341 164) ("ACN 164") was incorporated. On 5 August 1999 ACN 164's name was changed to Julia Ross Personnel Pty Ltd.
When the plaintiff's amended statement of claim was filed in the District Court the second defendant that was added to the claim was described as Julia Ross Personnel Pty Ltd (ACN 003 758 709). So much is clear from what appears on the amended statement of claim. The plaintiff submitted that the second defendant was in fact ACN 164. She submitted that at some time after the filing of the amended statement of claim the second defendant changed to ACN 164. No evidence was provided of that change despite my attempts at the hearing to ascertain from the plaintiff what document showed that such a change had been made.
Since the names of the two companies were effectively interchanged on 5 August 1999, the second defendant on the amended statement of claim should have been named as Julia Ross Recruitment Pty Ltd. However, that was simply a name change. There was never a change to the company that was named or continued to judgment as the second defendant. That company was always ACN 709. It seems likely that the plaintiff has not understood what occurred on 5 August 1999 when the names of the two companies were interchanged.
Regardless, in any event, of which company was the second defendant, the present second defendant (Allianz) accepted that it was the insurer of the plaintiff's employer for the purpose of the District Court proceedings and also the proceedings in the NSWCC.
The plaintiff does not assert that Allianz knew about anything to do with the name change, let alone the fraud that the plaintiff alleges concerning which of the companies was sued, during the currency of the District Court proceedings or the proceedings in the NSWCC. So much is clear from paragraph 16 of the plaintiff's statement of claim which pleads:
16. Further to the last paragraph I note that August 2004 was when Allianz Australia Workers Compensation (NSW) Limited ACN 003 087 545 and Allianz Australia insurance Limited 000120 850 and their directors received the legal advice that Julia Mary Ross had registered her company Julia Ross Personnel ACN 088 341 164 in my personnel injury hearings instead of the insured entity Julia Ross Recruitment ACN 003 758 709.
At the hearing of the present motion, the plaintiff confirmed that it was not until 2004 that the present defendants knew about the alleged fraud.
[13]
(b) The Settlement Offer Allegation
The pleading in relation to the offer of $250,000 is this:
27. I refer to the MEMORANDUM OF ADVICE copied from Allianz Australia Insurance Limited's consultant barrister's (Brian Ferrari) memorandum 1 February 2000 i.e.
…
30. In my opinion, given the opinions of Dr Daymond and Dr Bodel qualified to the Defendant Gow-Gates Insurance Brokers Pty Limited consideration should be settling this matter up to $250,000 which on a basis of a 70% contribution would represent liability for the Defendant Julia Ross Personnel Pty Limited of $175,000.
31. I did not receive any settlement offer from my lawyers and also Allianz Australia Workers Compensation (NSW) Limited ACN 003 087 545 and Allianz Australia Insurance Limited 000 122 850 and their directors in or after the 1-3 February 2000 hearing. It was claimed that I had rejected the offer without any proof of my rejection recorded.
…
39. I deny the erroneous assertion of Mr Nicholas Studdert in his letter of 11 September 2003 that a joint offer of settlement was placed on behalf of the Defendants in the sum of $280,000 for the applicant in her common law proceedings but she rejected same.
The letter of 11 September 2003 referred to in paragraph 39 of the statement of claim was a letter written by Nicholas Studdert, an employed solicitor at Vardanega Roberts, the solicitors for Allianz. The letter was addressed to the present first defendant reporting on the proceedings in the Compensation Court on 11 September 2003. The penultimate paragraph of the letter said this:
We confirm that a joint offer of settlement was placed on behalf of the defendants in the sum of $280,000 to the applicant in her common law proceedings but she rejected same. This must be extremely disappointing for her in view of the paltry amount of compensation she ultimately received as a result of the two sets of proceedings.
The figure of $280,000 was made up by an offer of $250,000 to the plaintiff together with $30,000 for her costs.
The present defendants tendered a letter dated 22 September 2003 from Gerard Malouf & Partners (the plaintiff's solicitors in her District Court and NSWCC proceedings). The letter relevantly said:
We refer to the above matter and to the recent telephone call between the writer and yourself on Friday 12 September 2003.
We confirm that during the course of the telephone conversation you were quite upset indicating that Mr Petrovski of this office had not advised you in relation to the settlement of your workers compensation claim. We confirm you also made allegations that we had in fact ruined your common law claim and other comments in relation to Mr Nassir Bechara formerly of this office being a para-legal.
…
In relation to your common law claim, I make this comment quite categorical that it was you and no-one else who chose not to accept the offer that was made by the Defendants in your claim, that offer was excess of $265,000.00 to settle your common law claim as against Gow Gates and Julia Ross, the personnel agency.
You were extensively advised by Mr Barry Hall, the barrister briefed in this matter, and counsel as well as the writer in terms of your decision not to accept the offer and that it was contrary to our advice. The matter finally proceeded and your evidence was given and ultimately the Judge did not accept that there was any negligence nor that the injuries you sustained were as a result of the incident that occurred at the Gow Gates / workplace.
We note that you even made attempts to contact the Judge and you make the allegation that it was the Judge's associate who told you not to accept the offer made. We confirm at the time we advised you that this clearly could not have been the case and you had in fact decided not to accept the offer prior to any such phone calls taking place and your denial and rejection of that offer was made in the presence of Mr Barry Hall, the barrister and the writer.
[14]
(c) The Inadequate Compensation Allegation
This allegation is contained in the following paragraphs of the statement of claim:
33. The Compensation Court of New South Wales hearing (11 September 2003) was held without my presence and without any notice to me from my lawyers or Allianz Australia Workers Compensation (NSW) Limited ACN 003 087 545 and Allianz Australia Insurance Limited 000122 850 and their directors before or after the hearing.
34. Nicholas Studdert as the employed solicitor of Vardanega Roberts appeared on behalf of Allianz Australia Workers' Compensation.
35. I contend that the ceding of my workers compensation entitlements i.e., loss of earnings, pain and suffering, interest etc. to a dummy company without my knowledge and agreement was completely illegal.
36. My only compensation from the hearing has been a payment in January 2004 for $9,400 towards my Section 60 medical expenses. I had to pay back 90% of the $9,400 in fortnightly payments from my unemployment benefits.
37. I contend that by the time of the Compensation Court of New South Wales hearing of 11 September 2003 my workers compensation claim would have totalled five million dollars.
38. The appellant lawyer Mr. Nicholas Studdert's opinion of my entitlements after the above hearing was that the respondent's (the illegal Julia Ross Personnel Pty.Ltd.088 341.164) insurance company (Allianz Australia Insurance ACN 000 122 850) had avoided the payment to me of a truly enormous amount given the enormous potential liability of the claim (see F2/1 to F2/9 Attachment No.3 Vardanega Roberts letters to the Manager, Allianz Australia Workers' Compensation (NSW) Limited 9 September 2003 and 11 September 2003).
In addition, the plaintiff pleaded (at paragraph 32) that her lawyers and the directors of both the present defendants "all violated their duty of care to me". It is not apparent from the statement of claim what is said to be the breach of duty of care by the directors of the present defendants.
The plaintiff's claim in relation to the NSWCC appears to be twofold. First, the plaintiff repeats the allegation that the defendant in those proceedings was the wrong defendant and not her employer. Secondly, she asserts that the proceedings were settled when she was not present and that she was unaware of the hearing in the NSWCC. The documents suggest otherwise. In some of the earlier proceedings the plaintiff asserted that the proceedings in the NSWCC had been initiated and conducted without her knowledge. That claim is no longer made.
[15]
(d) The Unauthorised Disclosure Allegation
The paragraphs of the statement of claim relating to this matter are these:
47. IN 2006 THE DIRECTORS OF ALLIANZ AUSTRALIA INSURANCE AND ALLIANCE AUSTRALIA WORKERS COMPENSATION LIMITED ALLOWED AN EMPLOYEE TO CREATE FOR A MEMBER OF THE PUBLIC A DUMMY FILE CONTAINING MY PERSONAL INJURY RECORDS.
48. I refer to my GIO to my GIO digital files - Attachment No.5 - folios 565/573 and 566/573.
49. Folio 565/673 is a letter dated 2 May 2006 from Don Hastie Injury Coordinator, - Allianz Australian Workers Compensation Insurance Limited to a Stephen Spinak sending documents (not disclosed) in my name, my claim number and mycompany when I was injured (Ross Human Directions Ltd) and with no cc to me.
50. Folio 566/573- is a letter, dated 3 May 2006 from Don Hastie Injury Coordinator, Allianz Australian Workers Compensation Insurance Limited to my street address (7 Kimbarra Ave Camden NSW 2570) and recording it was a Dummy letter to.generate file.
51. I am entitled to a detailed explanation from the directors of Allianz Australian Workers Compensation Insurance Limited on why they allowed the gross abuse and theft of my personal injury records and the distribution of my. personal injury records for public viewing.
(reproduced as in original)
The letter of 2 May 2006 (referred to in par 49) is addressed to Stephen Spinak at a post office box in Edgecliff. The letter is headed as follows:
Claim number: 970713706159033
Worker: Lynette Martin
Employer: Ross Human Directions Ltd
Date of injury: 04/07/1996
The claim number, minus "033" on the end, is the workers compensation claim number. The letter says only:
Dear Mr Spinak,
Please see following documents as requested.
Yours Ssincerely,
Don Hastie
Injury Coordinator
Allianz Australia Personal Injury Division
No documents are attached or identified.
The second letter dated 3 May 2006 is addressed to:
Addressee
7 Kimbarra Ave
Camden NSW 2570
The letter, containing the same items in the heading, reads:
Dear Addressee,
Dummy letter to generate file.
Yours Sincerely,
Don Hastie
Injury Coordinator
Allianz Australia Personal Injury Division
In his affidavit in support of the present motion, Matthew James Ellis, the solicitor for the defendants, says this:
49. I am instructed by Ms Ramzy [the senior manager nominal insurer of the second defendant] that the defendants have not identified any additional correspondence which confirms Mr Spinak's role in the 2 May 2006 Letter nor the cause for the request of the documents. I am also instructed by Ms Ramzy that the defendants believe Mr Spinak may have been a solicitor retained by the plaintiff, and the request for documents was in response to a solicitor's request.
50. I am further instructed by Ms Ramzy that the defendants have not identified any additional materials which confirms the context to the 3 May 2006 Letter, but the defendants believe the letter was likely generated as an administrative step for the establishment of the file. To the best of the defendant's knowledge, the 3 May 2006 Letter has never been dispatched to any person.
[16]
Conclusion
None of the claims pleaded discloses a reasonable cause of action. Further, the pleadings constituting the Incorrect Defendant Allegation and the Inadequate Compensation Allegation constitute an abuse of process because they amount to a collateral attack on the decisions of the District Court, the NSWCC and the decisions of Schmidt AJ, Chen J and Harrison AsJ.
It is not necessary, therefore, to consider in any detail the alternative claim that the pleading should be struck out pursuant to r 14.28. It is enough to say that the pleadings ought to be struck out because they do not properly plead any reasonable cause of action. They do not comply with the UCPR in terms of pleading only material facts. They do not provide any particulars to justify the claim of fraud. The claim for $50 million is ridiculous, particularly because the plaintiff's common law claim was transferred from this Court to the District Court where only that court's then limit of jurisdiction of $750,000 was claimed. The plaintiff said only that she sought $50 million because she did not receive compensation, and everything "was done behind my back". She was not otherwise able to say how the figure was calculated or assessed.
Accordingly, I make the following orders:
1. Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) the proceedings are dismissed.
2. The plaintiff is to pay the defendant's costs of the proceedings.
[17]
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: 20 May 2024
In a supplementary judgment, Judge Boyd-Boland noted that further submissions had been received from the plaintiff without leave on the morning he was due to deliver his judgment referred to above. In that supplementary judgment his Honour said:
As I have already recorded, in my earlier Judgment, the boxes were carried by Ms Maroney on a number of occasions. She gave evidence which I accept which is that in her view the boxes were not heavy. The Plaintiff bears the onus, on the issue and, for the reasons I have already outlined, I take the view she has failed to establish the boxes were heavy.
The plaintiff did not appeal against the District Court judgment.
On or about 27 November 2001, the plaintiff brought a claim in the NSWCC against ACN 709 seeking compensation of $450 per week plus expenses and interest. On 11 September 2003, the date the matter was listed for hearing, the claim settled for a sum of $9,400 being an amount referable to the plaintiff's agreed medical costs pursuant to s 60 of the Workers Compensation Act 1987 (NSW) plus costs.
On the settlement date two documents were filed in Court. The first was a document titled "Agreed Facts", signed by the lawyers for the parties, which relevantly provided:
(1) The Applicant has no economic incapacity after 4.7.96 causally related to any injury sustained during or aggravated by the Applicant's employment by the Respondent.
(3) The Applicant is not entitled to any further weekly payment or compensation.
(4) Other than as set out in the Award herein the Applicant has no entitlement to compensation against the Respondent.
The second document was headed "Applicant's admissions". This document bears the signatures of both the plaintiff and her solicitor.
The relevant admissions were these:
(2) Since 4.7.96 and despite any losses and/or impairments for which the employer has agreed to pay any compensation I am not prevented from undertaking employment that returns me at least what I would have earned had I remained in the employ of the Respondent or in the open labour market for those jobs available to me.
(3) I have not sustained any permanent impairment resulting from any injury which occurred during my employment with the Respondent.
(5) I have not suffered any injury in the course of employment other that (sic) those in this application.
(6) I have recovered from the effects of any injury or the aggravation of an injury caused by or resulting from my work duties or any specific incident in the employ of the Respondent.
(9) I acknowledge that the respondent disputes any claim in these proceedings and consents to the Awards herein by way of compromise and in reliance upon the admissions I have made.
There is in evidence also a statutory declaration bearing the plaintiff's signature and sworn on 11 September 2003 concerning whether the Commonwealth had paid eligible benefits in respect of the injury.
A cheque payable to the plaintiff in settlement of the compensation claim was forwarded to her by her solicitors on 21 January 2004. The amount of the cheque was for $8,460, being the settlement amount of $9,400 less the 10% initially paid to the Health Insurance Commission. The plaintiff does not dispute that she obtained compensation of $9,400.
The plaintiff claims, however, that she was not present at the NSWCC, that she did not know of the hearing, that she did not authorise her solicitors, Gerard Malouf & Partners nor her barrister, Philip Beale, to appear, or to sign any documents on her behalf. She claims that her signature is forged on the Admissions document and on the Statutory Declaration.
In the course of her judgment, Schmidt AJ made the following findings:
[23] …
(1) Ms Martin's common law damages claim against Julia Ross Personnel and Gow Gates Insurance Brokers failed in 2000 in the District Court, because the evidence of a Ms Moroney (sic), with whom Ms Martin had worked at Gow Gates Insurance Brokers, about the weight of boxes which Ms Martin claimed had resulted in her back injury when she had to lift them while at work, was preferred over that of Ms Martin: Martin v Gow Gates Insurance Brokers Pty Limited (District Court (NSW) Boyd-Boland J, 16 February 2000, unrep). There was no appeal from that decision, with the result that it bound Ms Martin.
(2) Ms Martin's case was that she was not aware until 2020 that in 2003 workers compensation proceedings had been pursued against Julia Ross Personnel by Gerard Malouf and settled without her knowledge or authority. In her March 2021 affidavit, Ms Martin said that she had attended the District Court in December 2003, when she was told that there was no money for her. She then signed a document as applicant, dated 11 September 2003, which she did not read, understanding she was signing it in order that Gerard Malouf & Partners could receive $50,000.
(3) There was no such document in evidence and no proceedings on foot in the District Court in 2003. But the making of such a payment could be consistent with the settlement, in September 2003, of the workers compensation proceedings brought against Julia Ross Personnel, the terms providing for the payment of Ms Martin's costs, after assessment.
(4) Those workers compensation proceedings had been defended by an estoppel argument. On 11 September 2003 when the matter was listed for hearing before Burke AJ, the Court was eventually advised that the matter had settled, on terms which also included payment of Ms Martin's s 60 expenses, agreed at $9,400. Ms Martin was then represented by counsel Mr Beale and Mr Petrovski, but claims she was not present in court or aware of the proceedings or settlement. Consent orders were made that day and later advised by the Court to Ms Martin, but not at her then current address.
(5) In evidence is the admissions document, on its face signed by Ms Martin on 11 September 2003, which was provided to the Compensation Court with other documents signed by her counsel and solicitor that day, when the orders were made. Ms Martin contends that her signature was forged, even though she had the document examined by a handwriting expert, who on her account, could not detect such a forgery.
(6) Ms Martin later herself commenced workers compensation proceedings against Gow Gates Insurance Brokers. In her application she said, "I feel my solicitors have not made any attempt to resolve any dispute professionally". This is consistent with Ms Martin having had knowledge of the compensation proceedings earlier brought against Julia Ross Personnel, as well as the District Court proceedings, as was a letter sent to her by Gerard Malouf on 21 January 2004.
(7) That letter said:
"Re Your Workers Compensation Claim
We refer to the above matter and to the settlement of your Workers Compensation Claim in accordance with your instructions.
Please find enclosed a cheque made payable to you for the amount of $8,460.00. You will recall that the matter was settled for a figure of $9,400.00. The insurer has forwarded, in accordance with the Law, 10% of the settlement monies that is, $940.00 to the Health Insurance Commission (Medicare).
As had been advised to you, the settlement amount related to the part payment of those medical and treatment expenses that related to your injuries.
As the settlement cheque is drawn in your favour, you will be responsible for attending to payment of all the outstanding treatment expenses in this matter."
…
(9) Ms Martin obtained Gerard Malouf & Partners files in 2007, but on her account did not examine them until 2020. She only that year became aware that a settlement offer had been made to her in the 2000 proceedings which she claimed had also been concealed from her. Her delay in bringing these proceedings, she claimed, was the result of ill health. This also had the result that it was only in 2020 that she sought and obtained access to the 2003 Compensation Court file concerning Julia Ross Personnel. It was there that she found the document where she believes her signature was forged.
(10) Despite this Ms Martin has taken no steps to seek to have the 2003 consent orders with which she now takes issue, set aside. That they would be set aside, given her acceptance of the agreed payment, seems doubtful.
(11) The serious allegations which Ms Martin seeks to pursue against Mr Vardanega, Mr Roberts and Mr Studdart, with whom she has never had any professional relationship are properly summarised, she agreed to be:
"a. that all of the defendants commenced and maintained the Compensation Court proceedings without the Plaintiff's knowledge, instructions or authority and without her participating in any way in the proceedings; and
b. that at some unspecified point in time the First and Second Defendants [Malouf and Kolokossian] on the one hand, the Third and Fourth Defendants [Vardanega and Roberts] on the other induced their respective employees the Fifth and Sixth Defendants [Petrovski and Studdart] to conspire and subvert the course of justice in the Compensation Court in connection with the proceedings."
[24] I am satisfied, however, that Ms Martin's submission that the January 2004 letter from Gerard Malouf did not refer to a hearing and thus did not put her on notice that workers compensation proceedings had been brought and settled cannot be accepted, given the terms of the letter itself.
[25] It is relevant that Ms Martin was then represented by another firm of solicitors, who had advised Mr Studdart that Gerard Malouf's files were being pursued. Ms Martin says she did not obtain those files until 2007. However, there is no issue that while so represented she accepted the 2004 cheque forwarded to her by Gerard Malouf, without enquiry or complaint about the settlement of her worker's compensation claim. That is not consistent with her having then had no knowledge of the workers compensation claim which had been pursued against Julia Ross Personnel and settled by the payment which she then accepted.
…
[28] Nothing that Ms Martin has advanced provides any basis for the conclusion that they knew or should even have suspected that the workers compensation proceedings against Julia Ross Personnel, which it defended as it was entitled to do, were initiated without her authority, taking her case at its highest. Let alone that it was settled by her lawyers without her authority, with her signature on documents then provided to the Court being forged.
…
[31] This situation simply provides no foundation for the serious allegations which Ms Martin seeks to advance against Mr Vardanega, Mr Roberts and Mr Studdart. …
[33] It is apparent from the evidence on which Ms Martin seeks to advance her very serious claims against Mr Vardanega, Mr Roberts and Mr Studdart, that even taking her case at its highest, she has no reasonable cause of action against them. In the result the case which they advance on their application, must be accepted.
[The correct spelling of Mr Studdert's name is "Studdert". It has been mis-spelt in a number of documents and judgments as "Studdart".]
The plaintiff did not appeal against this decision.
On 21 October 2021, the plaintiff filed a document entitled "Further Amended Statement of Claim" naming only Messrs Malouf, Kolokossian and Petrovski as defendants.
In this form of the statement of claim, the plaintiff asserted that Gerard Malouf & Partners did not tell her of the offer of $250,000 in the District Court proceedings, that they never pursued a workers compensation claim against Gow Gates and that they gave away her compensation rights when they settled the proceedings in the Compensation Court on 11 September 2003.
On 13 April 2022, the Gerard Malouf defendants filed a notice of motion seeking that the plaintiff's proceedings against them be permanently stayed.
On 10 February 2023, Elkaim AJ permanently stayed the proceedings: Martin v Malouf [2023] NSWSC 71.
In the course of the judgment his Honour said this:
[25] Although the plaintiff asserts she did not become aware of the Compensation Court hearing until 2020, this is contradicted by the letter from the defendants in September 2003. This letter is significant because:
(1) it specifically addresses the communication of an offer in the District Court proceedings and the resolution of the Compensation Court proceedings;
(2) the complaints now being made by the plaintiff had been made by her in 2003 so that any suggestion that she discovered the failings of the solicitors some 16 or more years later must be treated with considerable scepticism; and
(3) if the plaintiff was aware of her current assertions in 2003 she is likely to face significant limitation obstacles.
…
[37] If the defendants' files only became available to the plaintiff shortly before she commenced proceedings in 2020, the position may have been different. However, she has had the material probably since October 2004 (certainly since 2007) and while she may well have been stressed, as she asserts, every year that passed without her considering them was also a year in which the recollections of the defendants and their potential witnesses would have continued to fade. In one case, the potential witness, Mr Hall QC, died.
The plaintiff did not appeal against this decision.
In his judgment in relation to the proceedings against the Julia Ross defendants, Chen J said this:
[31] So far as can be discerned from the statement of claim, the 'complaints' and allegations of the plaintiff appear to be as follows:
(1) The directors of Julia Ross "between 2000 and 2004" allowed fraud "to take place and failed to exercise due diligence in the protection of my workers compensation entitlements and my legal rights as an injured worker": SOC, par 4.
(2) The plaintiff then sets out - described by the plaintiff as "the prelude to fraud by Julia Mary Ross" - the various events giving rise to her injury to her lower back in July 1996, the claims that were brought in consequence of that injury in the District Court, and later in the Compensation Court: SOC, pars 6-27. Specifically, it is said that had "any party to the proceedings in the District Court … carried out an ASIC search", the plaintiff "would have been awarded the case": SOC, par 13.
(3) The plaintiff discovered "a major fraud" against her, alleging that the proceedings in the Compensation Court - that resulted in a settlement on 11 September 2003 - were taken without notice to her, and in her absence: SOC, par 31.
(4) It was the plaintiff's "opinion that the fraudulent actions against [the plaintiff] by Julia Mary Ross was financially motivated by her to conceal my personal injury claim against her company before and in the period when she was promoting the company shares to the public": SOC, par 41.
(5) The plaintiff 'contends' that the "second to seventh defendants … would have or should have been aware of the first defendant's business dealings including her fraudulent actions" against the plaintiff, and that "they may have become part of the fraudulent actions against me by the first defendant by the Julia Mary Ross": SOC, pars 42-43.
(6) The plaintiff has been "completely cheated and abused by the fraudulent actions of Julia Mary Ross and the negligence of the other defendants against me from 1999 and continuing and therefore seek aggravated damages in the sum of fifty million and four thousand dollars": SOC, par 45.
…
[49] It is useful to note the following matters, before dealing with the substance of what has been argued:
(1) The plaintiff alleges that her lawyers commenced proceedings against Julia Ross in the District Court in 1998: SOC, par 20. That is, on the plaintiff's case, the proceedings were commenced against the correctly named employer (the further company that was registered as Julia Ross Personnel Pty Ltd was only incorporated - after that time - in 1999: Exhibit B). The District Court amended ordinary statement of claim that is in evidence records the ACN number of that entity as: 003 758 709. (That is the correct ACN number of the plaintiff's employer).
(2) The plaintiff failed in her claim in the District Court, essentially because she did not prove negligence - not because of anything to do with the name or identity of her employer. The reasons for judgment correctly identify the plaintiff's employer.
(3) The plaintiff did not appeal the decision, and judgment entered in favour of the defendants.
(4) The plaintiff recovered workers compensation in 2003 - an award of compensation was made in her favour on 11 September 2003. The application for determination identified the plaintiff's employer as 'Julia Ross Personnel', and the 'Wage Schedule' dated 6 June 2002 filed by the plaintiff's solicitor, and the Answer of the employer, correctly identified the plaintiff's employer as: Julia Ross Personnel Pty Ltd.
(5) The award of compensation was made against 'Julia Ross Personnel'.
(6) The plaintiff did not appeal or challenge the award, nor has she taken any steps to set it aside.
(7) Schmidt AJ found, contrary to what the plaintiff alleges, that the plaintiff had knowledge of the proceedings brought in the Compensation Court at 23-(7).
[50] Before me, the plaintiff explained her case in these terms: the plaintiff argued that the wrong defendant had been joined to the District Court proceedings - notwithstanding what was alleged in the statement of claim, par 20 and notwithstanding that the amended statement of claim correctly identified her employer (see [49(1)], above) - and to the Compensation Court proceedings, and that ASIC searches demonstrated as much. This had the effect, so the plaintiff argued, of denying the plaintiff her proper entitlement to either damages or compensation, or both. The plaintiff also argued that she was unaware of the hearing that was conducted in the Compensation Court in 2003, and it was resolved without her knowledge and consent.
[51] In my view the issue concerning the potential wrongly named defendant is inconsequential. That is for the following reasons:
(1) First, there was no issue in the District Court proceedings about whether the plaintiff had correctly identified, and thus sued, her employer: as I have earlier noted, the proceedings were commenced against the correctly named employer. Further, a review of the reasons for judgment of the District Court judge show that no issue was raised about the employer's "identity". In any event, again as I have earlier noted, the plaintiff's claim did not fail on the basis that the plaintiff had erroneously sued an entity that was not her employer: it failed on the ground that the plaintiff had not persuaded the judge that the boxes that she was lifting when injured were unreasonably heavy.
(2) Secondly, in connection with the Compensation Court proceedings, the plaintiff in fact recovered an award of compensation against the entity which was accepted to be her employer - albeit, by that time, its name had changed to Julia Ross Recruitment Ltd. Again, as with the District Court proceedings, nothing turned upon this - evident by the fact that the plaintiff recovered compensation.
(3) Thirdly, even if there was a measure of confusion about the precise name of the plaintiff's employer that arose in consequence of changes to the corporate structure of Julia Ross (in my respectful view, there was not), at all times there remained a statutory insurer - Allianz - that was conducting the claim on behalf of Julia Ross. That insurer was, ultimately, the entity that had the liability (if any) to the plaintiff in connection with her claims against Julia Ross arising out of the July 1996 accident. Separately, that insurer was directly liable to the plaintiff for any compensation or damages that she was entitled to, and it paid the compensation that she was awarded in September 2003. Thus, any change in the corporate structure (including renaming) of Julia Ross was incapable of overriding the statutory directive in ss 155 and 159(2)(a) of the WCA - namely, for there to be a policy covering the liability of Julia Ross under the WCA, and for any liability independently of it, and for such policy to make the insurer (in addition to the employer) directly liable to the worker.
[52] Notwithstanding the above, as I have already noted, the plaintiff alleges that she has been denied her proper entitlement to damages and/or compensation, and the plaintiff levels a series of grave allegations against the director defendants - essentially that they engaged in a fraud, some 20 or so years ago, to deny the plaintiff her just entitlements for the injury and loss and damage that she suffered in the July 1996 incident. In the face of the disposition of the District Court proceedings - and why it failed - and the outcome in the Compensation Court proceedings - and the fact that the plaintiff recovered compensation - it is impossible to see how there could be any basis for such claims. That is particularly where the claims were conducted by the statutory insurer for Julia Ross (and the lawyers they had appointed), and not Julia Ross itself.
[53] During the hearing, when invited to do so, the plaintiff was unable to pinpoint any evidence that might, even tenuously, support what is alleged, or be a step towards supporting what is alleged. All the plaintiff was able to identify - aside from her statement of claim and written submissions - was the fact that ASIC records show that there was, in the period 1999-2016 a company known as Julia Ross Personnel Pty Ltd that had a different ACN to the Julia Ross that employed her. The existence of that "fact" is patently insufficient to support what is alleged.
[54] There is, in my view, no basis for (or a shred of evidence to support) the allegations made in the Julia Ross proceedings (as I have summarised them - see [31], above and as explained by the plaintiff - see [50], above), nor any step in the chain necessary to do so. Nor, in my view, is there likely to be: it is "possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance": Ugur at [117] citing Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1; [2001] UKHL 16 at [95].
[55] There are other issues as well, which the director defendants argued supported summary relief. One is "causation". If, as the plaintiff alleges, there was a defect in the naming of the defendant in the District Court then that occasioned the plaintiff no loss whatsoever. That is because, as I have already noted, the plaintiff's claim failed because she failed to persuade the District Court judge that the files that she lifted were unreasonably heavy: the claim did not fail because of the joinder of the wrong defendant, or some other technicality related to the joinder of the entity named as the plaintiff's employer in the District Court proceedings. The same point may be made in connection with the proceedings in the Compensation Court: the plaintiff in fact secured an award of compensation in her favour.
[56] Further, if, as the director defendants argued, the plaintiff also seeks to advance claims in negligence or, possibly, for breach of the duties that each owed as directors of the defendant, it is difficult to see how the plaintiff could possibly succeed in these claims. To the extent that these allegations rest upon each of the defendants being a knowing participant in the fraud, then the position in connection with establishing that involvement and knowledge is not different to the "fraud" claim earlier discussed: there is, to my mind, no basis to allege this, and no evidence whatsoever to support the allegations. To the extent that these allegations rest upon omissions - that acting reasonably each of them should have been aware of the fraud committed by others (and putting to one side there is no basis to allege this) - there is a complete failure of the plaintiff to identify how each of them ought to have been aware of the fraud, and point to any evidence that might tend to support any aspect of that allegation.
[57] In relation to the plaintiff's grievances that are anchored in her lack of awareness of the hearing in the Compensation Court in September 2003, and her related allegation that they were resolved without her knowledge or consent, it is inconceivable that these matters could be legally attributed to the directors of the plaintiff's employer when, as I have earlier pointed out, the employer was represented by solicitors appointed by the statutory workers compensation insurer.
[58] In my view, like the "fraud" allegations, these ancillary allegations are likewise clearly deficient, without substance and disclose no reasonable cause of action. In this respect as well, it is also "possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance": Ugur at [117].
The findings at [56] and [57] are particularly apposite to the claim now made against the insurers. Apart from the fact that the wrong defendant was not sued in the District Court or the Compensation Court, contrary to the plaintiff's assertion, there is simply no evidence that the insurers were involved in any sort of fraud at all. The insurer accepted that, if the insured entity was liable to the plaintiff, it (the insurer) would be responsible for compensating the plaintiff in accordance with any judgments. That makes the precise identity of the defendants in the two proceedings completely irrelevant in terms of any fraud. In any event, as is clear from the judgment of Judge Boyd-Boland, and from the judgments of Schmidt AJ and Chen J, the plaintiff did not lose her District Court case because of the identity of the defendants. She lost it on the facts because her evidence was not accepted and the defendants' evidence was accepted.
In relation to the proceedings against Vardanega Roberts, Chen J said:
[85] In my view, the Vardanega Roberts proceedings are without foundation, and I am satisfied to the required degree that they cannot succeed such that it is appropriate to grant summary relief.
[86] The "allegations" of the plaintiff were identified in [35], above. It is apparent, from the identification of those allegations, that there is considerable overlap between what is alleged in the Vardanega Roberts proceedings and the allegations made in the Julia Ross proceedings. The essence of the plaintiff's complaints are: (a) the denial of the plaintiff's "entitlements" in connection with the District Court and Compensation Court proceedings; (b) the failure to carry out ASIC searches by all the lawyers associated with the case on the plaintiff's employer; and, (c) the hearing in the Compensation Court being conducted - and the settlement of those proceedings - without the plaintiff's knowledge and/or consent.
[87] I have previously dealt with the complaints summarised in (a) and (b), above in connection with the Julia Ross proceedings (where identical allegations are made): see [48]ff. That reasoning applies equally here.
[88] In connection with the Compensation Court hearing proceeding, and the settlement being reached, without the knowledge or consent of the plaintiff, it is, in my respectful view, inconceivable that any "liability" for this could be sheeted home to the solicitors: the plaintiff was represented by a barrister and solicitor at the hearing in the Compensation Court, and the settlement documentation (in particular the document described as "Short Minutes of Order", which was signed by Judge Burke and resulted in the making of the orders made) was signed by the plaintiff's counsel. The barrister and solicitor thus each had implied and ostensible authority to bind their client (the plaintiff) to a compromise of the proceedings: Donnellan v Watson (1990) 21 NSWLR 335, 342; Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; [2017] NSWCA 341 at [172]. There is nothing in the material (nor, for that matter, alleged in the statement of claim), taken at its highest, to suggest that the solicitors ought to have been on notice of the alleged irregularity: Donnellan at 342; Yau at [172].
The plaintiff did not appeal against this decision.
Subsequent to Chen J's judgment, the first defendant in the proceedings against Julia Ross filed a notice of motion to have the proceedings against her dismissed pursuant to r 13.4 UCPR. On 10 November 2023 Harrison AsJ dismissed those proceedings against Ms Ross: Martin v Ross [2023] NSWSC 1353. Associate Justice Harrison dismissed the proceedings because they were an abuse of process and because no reasonable cause of action was disclosed. The claims made in those proceedings are detailed above in the reasons of Chen J.
Her Honour made the following findings relevant to the present proceedings:
[58] I agree with the views of Chen J that the issue concerning the potential wrongly named defendant is inconsequential. This is for the following reasons:
[59] First, there was no issue in the District Court proceedings about whether the plaintiff had correctly identified and had sued her employer. The proceedings were commenced against the correctly named employer. Further, a review of the reasons for judgment of the District Court judge show that no issue was raised about the employer's "identity". In any event, again as I have earlier noted, the plaintiff's claim did not fail on the basis that the plaintiff had erroneously sued an entity that was not her employer: it failed on the ground that the plaintiff had not persuaded the judge that the boxes that she was lifting when injured were unreasonably heavy.
[60] Secondly, in connection with the Compensation Court proceedings, the plaintiff in fact recovered an award of compensation against the entity which was accepted to be her employer - albeit, by that time, its name had changed to Julia Ross Recruitment Ltd [ACN 709]. Again as with the District Court proceedings, nothing turned upon this - evident by the fact that the plaintiff recovered compensation.
[61] Thirdly, even if there was a measure of confusion about the precise name of the plaintiff's employer that arose in consequence of changes to the corporate structure of Julia Ross, at all times there remained a statutory insurer - Allianz - that was conducting the claim on behalf of Julia Ross. That insurer was, ultimately, the entity that had the liability (if any) to the plaintiff in connection with her claims against Julia Ross arising out of the July 1996 accident. Separately, that insurer was directly liable to the plaintiff for any compensation or damages that she was entitled to, and it paid the compensation that she was awarded in September 2003. Thus, any change in the corporate structure (including renaming) of Julia Ross was incapable of overriding the statutory directive in ss 155 and 159(2)(a) of the Workers Compensation Act 1987 (NSW) - namely, for there to be a policy covering the liability of Julia Ross under the Workers Compensation Act 1987 (NSW), and for any liability independently of it, and for such policy to make the insurer (in addition to the employer) directly liable to the worker.
[62] The plaintiff again alleges that she has been denied her proper entitlement to damages and/or compensation, and the plaintiff levels a series of grave allegations against the director defendants - essentially that they engaged in a fraud, some 20 or so years ago, to deny the plaintiff her just entitlements for the injury and loss and damage that she suffered in the July 1996 incident. In the face of the disposition of the District Court proceedings - and why it failed - and the outcome in the Compensation Court proceedings - and the fact that the plaintiff recovered compensation - it is impossible to see how there could be any basis for such claims. That is particularly where the claims were conducted by the statutory insurer for Julia Ross (and the lawyers they had appointed), and not Julia Ross itself.
[63] I also agree with Chen J that there is no basis for (nor a shred of evidence to support) the allegations made against the first defendant, nor any step in the chain necessary to do so. Chen J stated nor is there likely to be: it is "possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance": Ugur v Attorney-General for NSW [2019] NSWCA 86 at [117] citing Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1; [2001] UKHL 16 at [95].
[64] If, as the plaintiff alleges, there was a defect in the naming of the defendant in the District Court then that occasioned the plaintiff no loss whatsoever. That is because, as I have already noted, the plaintiff's claim failed because she failed to persuade the District Court judge that the files that she lifted were unreasonably heavy: the claim did not fail because of the joinder of the wrong defendant, or some other technicality related to the joinder of the entity named as the plaintiff's employer in the District Court proceedings. The plaintiff claimed that the company named as the defendant in the District Court proceedings was "empty". Even if this assertion was correct, it is of no relevance because the plaintiff did not receive any award of damages. Hence, whatever entity was named, it was not required to pay anything. The same point may be made in connection with the proceedings in the Compensation Court: where in fact the plaintiff secured an award of compensation in her favour, albeit a paltry sum of $9,400 of which she says that she had to pay $7,000 from that amount to Medicare.
[65] In relation to the plaintiff's grievances that are anchored in her lack of awareness of the hearing in the Compensation Court in September 2003, and her related allegation that they were resolved without her knowledge or consent, it is inconceivable that these matters could be legally attributed to the directors of the plaintiff's employer when, as I have earlier pointed out, the employer was represented by solicitors appointed by the statutory workers compensation insurer.
[66] Additionally, the "fraud" allegations and the issue with the identity of the first defendant are without substance and disclose no reasonable cause of action.
This passage has been subsequently approved in other cases including O'Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; [2013] NSWCA 315 at 106-107; R v O'Halloran [2000] NSWCCA 528; (2000) 182 ALR 431; 159 FLR 260 at [110] and [112] and Hana v Shad Legal Services Pty Ltd [2021] NSWCA 258 at [43].
More recently, in Massalski v The Owners SP 90255 & Ors [2023] NSWSC 23 at [54] & [56], Chen J has helpfully summarised the principles relating to abuse of process in the light of what was said in UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, as follows:
[54] …I will identify the relevant principles, which are as follows:
(1) The "varied circumstances in which the use of the courts processes will amount to an abuse … do not lend themselves to exhaustive statement" or being "susceptible of formulation which would confine it to closed categories": UBS at [1] and [72].
(2) An abuse of process will occur where either of two conditions are met: "where the use of the court procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute": UBS at [1]; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [25] ('Tomlinson').
(3) There is no inflexible rule that a party is precluded from relitigating issues determined in an earlier proceeding, but it might do so: Tomlinson at [26]. The question will be whether, in doing so, it would be unjustifiably oppressive upon the other party or would bring the administration of justice into disrepute - issues that involve a "broad merits based judgment which takes account of the public and private interests and all the circumstances of the case": UBS at [7], citing Johnson v Gore Wood & Co [2002] 2 AC 1, 31.
(4) Whether the circumstances constitute an abuse of process is to be assessed in light of, and must take into account, "the procedural law administered by the court whose processes are engaged": UBS at [34] and [72].
(5) It is unnecessary, in order to establish abuse of process, that subsequent proceedings involve the same parties as the first one, or their privies: Tomlinson at [26]; UBS at [63]. It is also unnecessary to show a superadded element - such as collateral attack or dishonesty - albeit that the presence of such an element may demonstrate, or assist in doing so: UBS at [67].
…
[56] A collateral attack occurs where a party seeks to challenge or impugn the result of the previous judgment, not through an appeal, but through subsequent litigation. That is, a party invites a court, in those later proceedings involving that party, to "arrive at a decision inconsistent with that arrived at" in that earlier case: Arthur J S Hall & Co v Simons (a firm) [2002] 1 AC 615, 743. In the end, the concept describes inconsistency, albeit of a fundamental and impermissible kind. In Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 541 it was said that it was an abuse of process to initiate
proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
In Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44, McLelland J said at 46:
Interlocutory orders, of their very nature, create no res judicata or estoppel, and the Court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will.
The over-riding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the Court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see e.g. Wilkshire v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest "until further order" (as to which see e.g. Warringah Shire Council v Industrial Acceptance Corporation - McLelland J 22 November 1979 unreported).
In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application (see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-8; Chanel v Woolworth & Co [1981] 1 WLR 485 at 492-3; Adam P Brown Male Fashions v Philip Morris 148 CLR 170 at 177-8; Butt v Butt [1987] 1 WLR 1351 at 1353; Gordano v Burgess [1988] 1 WLR 890 at 894).
This passage was approved in Nominal Defendant v Manning (2001) 50 NSWLR 139; [2000] NSWCA 80 at [11], [46] and [97]. Although by majority in Manning, a party was held entitled to make a second interlocutory application, that was because further evidence was put forward at the second application. The majority rejected (at [71] and [123]) the notion that an applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before.
Nevertheless, Heydon JA said at [67]:
A second application without additional evidence would smack of judge-shopping and be unlikely to succeed. If at a second interlocutory hearing new evidence is called which could have been called earlier, the absence of a satisfactory explanation for the failure to do so is a factor increasing the risk of dismissal. Another relevant matter would be whether in the second hearing the court was invited to revisit questions of law which had been fully argued. Yet another relevant matter would be whether in the second hearing the court was being invited to re-open factual matters investigated in and decided after cross-examination in the first.
Of course, Brimaud and Manning were concerned with second interlocutory applications being made by the same party. However, they provide some guidance to the approach of the Court where it is considering, as here, whether determinations made at interlocutory hearings are sought to be re-agitated by the respondent to those applications, and in a situation where that respondent offers no further evidence to demonstrate why the bringing of the fresh proceedings relying on the same bases as has been determined against her previously does not constitute an abuse of process.
Nothing additional has been put forward to justify the present proceedings in the light of the determinations made against the plaintiff in the proceedings she has already brought. Applying the principles in Rippon, Stenhouse, Massalski, Brimaud and Manning, the maintenance of the present proceedings, to the extent that the Incorrect Defendant Allegation and the Inadequate Compensation Allegation issues are repleaded against the present defendants, amounts to an abuse of process.
As best as can be discerned, the plaintiff's complaint appears to be that, having found out in 2004 of the change of second defendant, Allianz had a responsibility to notify the plaintiff, the District Court and the NSWCC. However, even if, contrary to what I have found, there had been a change in the second defendant to ACN 164, Allianz was under no duty to the plaintiff or any other person or body to notify them of that change. The proceedings had concluded. The plaintiff had been unsuccessful, not because of anything to do with who the second defendant was, but because, as Judge Boyd-Boland found, the plaintiff had not proved her case to show that the boxes were heavy in a way that gave rise to liability on the part of either of the defendants. There was also no such duty because Allianz had never denied that it was the insurer for the plaintiff's employer, whichever company that might have been, and it ultimately paid a small amount of compensation.
In relation to the Incorrect Defendant Allegation, it is not without significance that Schmidt AJ, Chen J and Harrison AsJ all found that there was no reasonable cause of action in respect of the allegation of fraud and wrong defendant when levelled against the insured's directors and/or the solicitors acting on behalf of the insured retained by the present defendants. Given the way the fraud allegation is put against the present defendants, it must follow, a fortiori, that in those circumstances no reasonable cause of action is pleaded against the present defendants.
The plaintiff submitted that the District Court case was null and void and it was illegal because the wrong defendant was sued. The submission is misconceived for the reasons I have given.
The pleaded cause of action constituting the Incorrect Defendant Allegation does not disclose a reasonable cause of action and the factual basis for the claim is fanciful because it is entirely without substance.
The offer itself was a handwritten offer saying:
Without prejudice save as to costs the first and second defendants offer the sum of $200,000 plus $50,000 in respect of party and party costs in full and final settlement of the plaintiff's action. This offer is open for acceptance until 10am on 3 February 2000.
The document was dated 2 February 2000 and was signed by the solicitor for the first defendant (Gow Gates) and Mr Roberts for the second defendant (ACN 709).
The handwritten offer has all the hallmarks of an offer made during the hearing of a case. It is clear from the letter of 22 September 2003 that Gerard Malouf was acting on a "no-win no-fee" basis. It is inconceivable in those circumstances that they would not have put the offer made to the plaintiff. The discrepancy between the amount in that handwritten offer and what appeared in Mr Studdert's letter of 11 September 2003 was unexplained.
The plaintiff said that she disagreed with what was contained in the letter of 22 September 2003. Having seen the handwritten offer, and noted the terms of the letter of 23 September 2003 which was written in response to an apparent complaint made by the plaintiff ten days earlier, I am satisfied that the contemporaneous nature of the letter establishes clearly that the offer of the $250,000 was made to the plaintiff at the District Court hearing. I note in particular what is contained in the last paragraph of the letter set out at [78] above.
Even if the offer was not made to the plaintiff by her solicitors, there can be no basis for the plaintiff's claim in her statement of claim against the present defendants in respect of that offer. The letter from Mr Studdert to the present first defendant establishes clearly that an offer was conveyed on behalf of the insurer to the plaintiff's solicitors at the relevant time. The present defendants cannot have any liability for any failure on the part of the plaintiff's solicitors to communicate that offer to the plaintiff. The plaintiff does not in her statement of claim, nor in the submissions made on the present application, identify what responsibility the insurer had for any failure on the part of the plaintiff's solicitors in that regard.
The pleading constituting the settlement offer allegation is misconceived. No reasonable cause of action is disclosed and the factual basis for the claim is fanciful.
There is no evidence that the wrong defendant was sued in these proceedings. In any event, the second defendant accepted that it was the workers compensation insurer and in fact paid the amount of the settlement to the plaintiff. That aspect of the plaintiff's claim lacks any merit.
As far as the settlement of those proceedings was concerned, two of the documents executed on 11 September 2003 bear the signatures of the plaintiff. The first is the document headed "Applicant's admissions" (referred to at [19] and [20] above). The second document was a statutory declaration concerning Commonwealth benefits paid. The statutory declaration was witnessed by Mr Petrovski, the solicitor employed by Gerard Malouf & Partners acting for the plaintiff.
Although the plaintiff denied that the signatures were hers, she obtained a handwriting expert, Melanie Holt, who said in her report dated 26 March 2021 that no conclusion could be reached regarding the authorship of signature on the admissions document, but in respect of the signature on the declaration:
Therefore, in summary, for this particular signature, the evidence slightly favours the first hypothesis, i.e that the question signature on "s 23A statement and statutory declaration" was written by the specimen writer [the plaintiff] rather than the alternative hypothesis i.e that this signature was written by someone other than the specimen writer. However, it needs to be stressed that there is a lot of uncertainty in this finding due to the poor reproduction quality of the questioned signature.
As noted earlier, Mr Studdert reported on the settlement of the compensation proceedings to Allianz later on 11 September 2003. That letter, amongst other things, said:
We confirm your Ms Moss' instructions to our Mr Studdert to attempt to resolve this matter by payment to the Applicant of up to the sum of $9,400 pursuant to s 60 of the Act plus costs as agreed or assessed on the basis there be an award for the respondent on the claim for weekly compensation and that you waive your entitlement to recover costs arising from the District Court verdict….
We confirm that after the result of lengthy negotiations the applicant agreed to accept our offer of settlement.
(emphasis added)
That is strong evidence that the plaintiff was either present or, at the very least, was involved in the negotiations at a distance, perhaps by telephone.
In the letter from Gerard Malouf & Partners to the plaintiff of 22 September 2003 the following appears in relation to the compensation claim:
In relation to the issue of your workers compensation claim, we confirm that we had always advised you that you only had at very best entitlements to recover the medical treatment expenses that you had incurred and to whatever extent was allowed by the Court a component in terms of your weekly wage. We confirm that we advised you that such a claim would be against Julia Ross Personnel who was in fact your employer. There was no mistake about this and you were well aware and well advised of this.
…
We confirm that Mr Petrovski went to great lengths as too did Mr Beale to ensure that it was well explained to you that even if the solicitors and insurance company for Julia Ross had made an offer the extent of which offer may not have been significant in any event, there would be a significant component to be paid back to the Department of Social Security and there was always the possibility that Centrelink may reduce your weekly benefits. We had an obligation to ensure that you were advised of these issues and where possible to try to protect your rights.
I have discussed the matter further with Mr Petrovski who confirms that a detailed instruction sheet to settle was prepared and advised to you and you subsequently instructed us to settle.
I reject your allegation that Mr Petrovski of this firm would have said words to the effect "I don't care whether you settle or not. I'm leaving Gerard Malouf & Partners." I accept that Mr Petrovski in conversation may have said to you that at the end of this month he would be in fact moving on from Gerard Malouf & Partners. I accept that at some point in the conversation you were advised that ultimately it is your decision whether to proceed with the matter and have your case heard before the judge or to settle it. In that respect I accept that Mr Petrovski said "I don't care. It is your decision." I confirm that it was Mr Petrovski and Mr Beale who were in fact prepared to have your matter go before the Judge and run the hearing.
…
We confirm that on all occasions both Mr Beale and Mr Petrovski of this office provided you with the option of running your case before the Court or settling the matter. In that regard on the issue of settlement you were also advised that if you were to run the case, the defendants Julia Ross would also be seeking to recover their significant costs that were awarded to them as a result of your loss in the common law claim.
It should be noted that the letter does not record any assertion by the plaintiff that she was not notified of the Compensation Court proceedings or that she was not present when they were settled. Indeed, the letter is powerful evidence that the plaintiff was present given that she alleged that Mr Petrovski made particular statements to her about whether she settled the case. Further, the fact that the matter was listed for hearing that day leads to the inexorable conclusion that the plaintiff must have been present.
However, whether or not the plaintiff was present does not give rise to any liability on the part of Allianz. It is apparent from the evidence that both the plaintiff and the defendant were represented by lawyers at the NSWCC and that settlement was achieved. Neither Allianz nor its solicitors owed any duty to the plaintiff to ensure that she was properly advised about the matter. Apart from a situation where a party or their lawyers makes representations contrary to s 18 of the Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law or similar statutory provisions, the position is that ordinarily opposing lawyers and their clients, owe no duty to the opposite party in litigation.
The plaintiff's claim in relation to the Inadequate Compensation Allegation is misconceived. No reasonable cause of action is disclosed, and the factual basis for the claim is fanciful.
Mr Spinak is and was a solicitor in 2006 and his postal address was PO Box 822 Edgecliff to where the letter was addressed.
The plaintiff denies that she ever retained Mr Spinak.
The statement of claim says only that the plaintiff is entitled to a detailed explanation from the directors of Allianz why they allowed the theft and distribution of her personal injury records. I tried to ascertain from the plaintiff at the hearing what claim she was making in relation to the documents. The plaintiff said only that Allianz should not have allowed the documents to leave her files and that it was not ethical that they did so.
In her affidavit of 4 April 2024 in response to the present notice of motion the plaintiff asserted that identity theft was involved and that she was a party to a current class action for identify theft.
At the present time, there is no established tort for unjustified invasion of privacy, but the state of the law is uncertain, as noted by Basten JA (with the agreement of Allsop P) in Maynes v Casey [2011] NSWCA 156 at [34].
If in fact what the plaintiff is claiming is for a breach of confidence in equity, the Full Federal Court in Optus Networks Pty Ltd v Telstra Corp Ltd (2010) 265 ALR 281; [2010] FCAFC 21 said that there are four elements which must be satisfied as follows:
(a) the information in question must be identified with specificity;
(b) it must have the necessary quality of confidence;
(c) it must have been received by [the defendant] in circumstances importing an obligation of confidence, and
(d) there must be an actual or threatened misuse of the information without [the plaintiff's] consent.
The letter does not say what the documents are, and the plaintiff in submissions said that nobody knew what documents were sent but they "would have been personal documents from my digital files". In the absence of evidence about what documents were provided, the claim must fail. It is possible that the documents which were provided were already in the public domain such as the judgment of Judge Boyd-Boland or the settlement documents filed in the Compensation Court.
It must be regarded as doubtful in the extreme that an insurer would hand over a client's file or documents from it to a solicitor without that solicitor providing a written authority from the client to the insurer. It is equally doubtful that Mr Spinak would have sought a copy of the file without having an authority to do so. One might reasonably ask what interest Mr Spinak would have in seeking documents concerning the plaintiff unless he had been asked to do so by or on behalf of the plaintiff.
However, whether the claim is one for a breach of privacy or a breach of confidence, the claim must fail because the plaintiff is unable to identify what documents were provided to Mr Spinak. The further difficulty for the plaintiff is that the plaintiff fails to identify what relief that she seeks that can be provided by law.
No reasonable cause of action is disclosed in relation to this allegation.