Martin v Vardanega

Cases Cited: Dey v Victorian Railways Commission (1949) 78 CLR 62
Martin v Malouf [2021] NSWSC 415
Martin v Ross & Ors; Martin v Vardanega & Ors [2023] NSWSC 303
Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129
Shaw v New South Wales [2012] NSWCA 102
Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317

Category: Principal judgment

Parties: Lynette Maria Martin (Plaintiff)
Stephen Vardanega (First Defendant)
Michael Roberts (Second Defendant)
Nicholas Studdert (Third Defendant)
Danny Feller SC (Fourth Defendant)

Representation: Counsel:
S Phillips (First, Second and Third Defendants)
Solicitors:
Plaintiff (self-represented)
Wotton Kearney (First, Second and Third Defendants)
DLA Piper (Fourth Defendant)

File Number(s): 2025/80318

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. This matter comes before me pursuant to a notice of motion filed on 11 April 2025 by the first, second and third defendants seeking orders that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or, in the alternative, that the proceedings be struck out pursuant to UCPR, r 14.28.

2. In addition, the first, second and third defendants (“the defendants”) seek an order pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW) (“the Act”), that the plaintiff be prohibited from instituting any proceedings against the defendants in New South Wales without leave of the Court.

3. On the application today, Ms Martin appeared unrepresented. She has been unrepresented throughout these proceedings and has been unrepresented in earlier similar proceedings commenced in this Court. She has the assistance of a friend at the bar table.

4. Mr Phillips of counsel appeared for the defendants.

5. At the commencement of the hearing, Ms Bulloch announced her appearance on behalf of the fourth defendant and asked to be excused. It seems that the fourth defendant has filed a similar application, but his application has been listed on a separate date. That is an unfortunate circumstance because the applications should have been heard at the same time. Be that as it may, the matter was not listed today and no party indicated they wanted to proceed with that matter today.

6. I thus am dealing with an application by the first, second and third defendants to dismiss the proceedings at this stage with a further vexatious litigant-type order. The plaintiff opposes the orders sought in the motion.

7. On the hearing of the matter, the defendants relied on an affidavit of Stephen Vardanega sworn 10 April 2025, to which was exhibited many documents. The plaintiff prepared her own court book. She tendered all the documents in her court book (Exhibit 2) and relied on the information contained therein. There is some duplicity of documentation between the court books, but I have regard to all of the material relied on by the plaintiff and the defendants in coming to my decision.

8. I was assisted by written submissions prepared both on behalf of the defendants and the plaintiff. Further, both parties provided oral submissions.

The basis of the application

9. The defendants maintain that the proceedings currently before the Court are virtually the same as have been dismissed on two prior occasions.

10. Those earlier proceedings were the subject of earlier dismissal orders, firstly made by Schmidt AJ on 23 April 2021 (Martin v Malouf [2021] NSWSC 415) and then made by Chen J on 30 March 2023 (Martin v Ross & Ors; Martin v Vardanega & Ors [2023] NSWSC 303).

11. The application brought today by the defendants is along similar lines and along similar grounds except that, on this occasion the defendants also seek an order under the Act, seeking to preclude the plaintiff from commencing similar proceedings against them again.

Background

12. The background facts are set out in the judgments of Schmidt AJ and Chen J.

13. The plaintiff sustained injuries in a workplace accident on 3 July 1996. She subsequently commenced proceedings both in the Compensation Court and in the District Court. At the time of her accident, she appears to have been employed by a company controlled by Julia Ross but she was working at the premises of Gow‑Gates Insurance Brokers Pty Limited, as a bookkeeper.

14. The proceedings in the District Court were dismissed on 16 February 2000 on the basis that the boxes that she was lifting at the time were not unreasonably heavy, that is, negligence was not established.

15. Despite that, the plaintiff maintains (and has maintained since those proceedings) that the proceedings were fundamentally flawed because the wrong company (that is a different Julia Ross company) was named as the defendant. She maintains that the proceedings were wrongly pursued against the wrong company and that the reason she was unsuccessful was because her solicitors named the wrong defendant. She says that, although the company was in some way related to “Julia Ross”, it was not the right “Julia Ross” company.

16. Leaving aside whether there is any proper factual basis for this assertion, since 2020 she has been pursuing claims in this Court against those who she holds responsible for that which occurred back when she was pursuing her claims for compensation.

17. She has maintained (since originally commencing proceedings in 2020), that she is entitled to approximately $48 million in damages representing, as I understand it, all the losses she has sustained because she did not receive the compensation to which she was entitled to back in the period 1998 to 2003.

18. That is a general description of the basis of the plaintiff’s case and how she comes to be in Court today.

19. As indicated, she has previously commenced proceedings both against her own solicitors and against the current defendants. The current defendants were not the solicitors she retained. The current defendants represented the defendants in her original claims for compensation.

20. On 23 April 2021, the proceedings brought by the plaintiff against the current defendants were dismissed by Schmidt AJ on the basis that the claims had not been properly pleaded; there was no cause of action properly disclosed; serious allegations were not properly particularised, and the proceedings were generally an abuse of process.

21. Following that judgment, the plaintiff commenced new proceedings against the current defendants and those proceedings were dismissed by Chen J on similar grounds.

22. The plaintiff then commenced these proceedings.

The pleadings

23. The plaintiff’s statement of claim is a lengthy document. It goes to approximately 59 pages. Much of the document is a submission. It is difficult to discern the nature of the case that the plaintiff is pursuing against the defendants.

24. Be that as it may, the plaintiff pleads that she is entitled to liquidated damages, aggravated damages and additional damages. She particularises the damages to which she is entitled to as being compensation for her loss of income, compensation for emotional damage and compensation for her pain and suffering over the past 28 years.

25. She pleads that the four defendants disadvantaged her by representing or supporting the company known as Julia Ross Personnel Pty Limited in that none of the four defendants properly carried out an ASIC search on the company and that “due to the jointly and severally negligence of the four defendants I was cheated in my workers compensation entitlements and incurred costs due to the fraudulent actions of Julia Mary Ross and others.”

26. She then goes on to refer again to what she describes as the central fact behind her claim, that is that Julia Ross Personnel was a dummy or empty company established by Julia Ross, allegedly to preclude her recovering compensation. She then pleads again the motive behind the creation of this said to be dummy company and contends that the defendants between 1999 and 2004 allowed the fraud which was imposed upon her to take place.

27. During the hearing today, I asked the plaintiff to identify her cause of action, having explained to her what that meant. She explained to me that the defendants owed a duty to her to inform her of what Julia Ross is alleged to have done, that is, in some way establish a dummy company, and to inform her that she was suing the wrong defendant. Whilst that is not really pleaded, at least there is some reference to an allegation of negligence against the defendants in the pleadings.

Dismissal or strikeout

28. The defendants seek dismissal of the proceedings pursuant to r 13.4, UCPR, or in the alternative, that the proceedings be struck out, pursuant to r 14.28. The onus is on the defendants to establish that the proceedings should be dismissed or struck out. The Court is always cautious in dismissing or striking out proceedings at this stage. The principles which govern such an application are well known.

29. The defendants must establish that the proceedings are so obviously untenable that they cannot possibly succeed, that they are groundless, or they do not disclose any proper cause of action (Dey v Victorian Railways Commission (1949) 78 CLR 62).

30. In Shaw v New South Wales [2012] NSWCA 102*,* Barrett JA expressed the test for summary dismissal at [32] as follows:

“The question is therefore 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.”

31. The defendants submit that the plaintiff’s claim constitutes an abuse of process, is groundless and obviously untenable. The defendants submit that the case against them has no prospects of success.

32. When dealing with unrepresented litigants, it is necessary to have a degree of latitude towards the pleadings. Persons such as the plaintiff are not familiar with the rules relating to pleadings, and it is impractical to impose upon self-represented litigants the same strict requirements as might be imposed upon represented litigants. However, that is not to say that there is no obligation on a plaintiff to plead a case which the other party can understand. The very function of pleadings is to ensure that the other party understands the case that he, she or they have to meet.

33. Unfortunately, it is not apparent from the statement of claim what case the defendants have to meet. Although there is a reference to negligence in one paragraph of the statement of claim, much of the document contains material which will not be relevant to any case currently being pursued. Further, the document contains serious allegations made against various persons which are not the subject of proper particularisation and should not be made even by an unrepresented person.

34. No evidence has been adduced which would substantiate those serious allegations involving unethical conduct. On any view, the case cannot go forward on the plaintiff’s current statement of claim. I could strike out the statement of claim under r 14.28 and require that the plaintiff re-plead.

35. However, there is little point in doing that as I am satisfied that the proceedings are an abuse of process, do not disclose any reasonable cause of action, nor could ever disclose any reasonable cause of action.

36. Having afforded the plaintiff an opportunity to outline the case she wishes to bring, she informed me that it was a case based on the defendants having some duty or obligation to her to provide her with information about any weakness in her case. That is, to tell her that the party she had sued was not the right party.

37. Of course, at the time she had her own solicitors. She sued those solicitors back in 2020 (Martin v Malouf [2021] NSWSC 415). She does not sue those solicitors in these proceedings. Her case against those solicitors was also struck out.

38. There is no principle which would impose a duty of care on solicitors acting for a defendant in personal injury proceedings to provide advice to the plaintiff about what evidence she should be relying on or what points she should be pursuing, or even to advise her, that is, the client of the other solicitors, that she has sued the wrong defendant.

39. Any such duty might be imposed on her own solicitors but there was no obligation on the solicitors for the defendant in personal injury litigation to advise the plaintiff of defects in her own case.

40. As such, even giving the most beneficial and generous approach to the plaintiff’s statement of claim, the claim could not succeed. Leaving aside the scurrilous allegations she makes, the only possible cause of action could be in negligence and there is no principle which would support such a cause of action.

41. In these circumstances, I am satisfied that the proceedings should be dismissed pursuant to r 13.4, UCPR.

42. I should also say that it would be an abuse of process for the plaintiff to again pursue proceedings against the same parties raising the same allegations which have already been the subject of judicial determination.

43. I asked the plaintiff what distinguishes these proceedings from the earlier proceedings. She indicated that she is now relying on the proposition that Mr Feller SC, when conducting the proceedings before Schmidt AJ, said that the original compensation proceedings should be reheard or else the matter should be referred to the Court of Criminal Appeal. She said that that is evidenced by something said by Mr Feller in a bill of costs. I afforded the plaintiff an opportunity to provide evidence to support that assertion. While she took me to a number of documents, I have been unable to find any statement from Mr Feller to that effect in any document.

44. As such, the basis on which she says these proceedings are different from the earlier proceedings has not been established. This is her third case against the same defendants on the same basis.

45. The proceedings will thus be dismissed pursuant to r 13.4, UCPR.

Order under the Vexatious Proceedings Act

46. The second order sought by the defendants is an order pursuant to s 8 of the Act.

47. Section 8 of the Act is in the following terms:

(1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that—

(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or

(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.

(2) For the purposes of subsection (1), an authorised court may have regard to—

(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and

(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section), and

(c) evidence of the decision, or a finding of fact, of any Australian court or tribunal hearing such proceedings or making such orders, even if that evidence would otherwise not be admissible by virtue of section 91 of the Evidence Act 1995.

(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

…

(7) Orders that may be made by Supreme Court The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person—

(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,

(b) an order prohibiting the person from instituting proceedings in New South Wales,

(c) any other order that the Court considers appropriate in relation to the person.

48. As set out therein, this Court may make an order in relation to a person, in this case being the plaintiff, if satisfied that the person has frequently instituted or conducted vexatious proceedings in Australia.

49. In determining whether to make such an order, I must have regard to any other proceedings instituted by the plaintiff and any other orders made by any other court as well as evidence of any decision or finding of fact by an Australian court or tribunal in such proceedings.

50. As set out in s 8(7), the Court has the power to make a number of different types of orders under s 8. The defendants only seek an order that the plaintiff be precluded from issuing proceedings against them. The defendants do not seek an order that the plaintiff be precluded from issuing any proceedings in New South Wales of any nature.

51. Section 6 of the Act defines “vexatious proceedings” as including proceedings that are an abuse of process of a court or a tribunal; proceedings instituted to harass or to annoy, to cause delay or detriment, or for another wrongful purpose; proceedings instituted or pursued without reasonable ground; and, proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses or causes unreasonable annoyance, delay or detriment.

52. The defendants’ position is that these proceedings remain an abuse of process, and that the plaintiff has already issued similar proceedings against them on two occasions, which have also been found to have been an abuse of process.

53. An important issue which arises is whether an order should be made under the Act in circumstances in which this is only the third set of proceedings against these defendants.

54. In Vito Zepinic v Chateau Constructions (Aust) Limited; Nina Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317 (“Zepinic”), the Court (per Simpson AJA, with McColl and Macfarlan JJA agreeing) identified the four steps that need to be identified for the purposes of such application at [13]-[15]. Those steps are:

55. Identify the proceedings the subject of the application which are said to be vexatious;

56. Determine (applying s 6) which, if any, of those proceedings are an abuse of process or instituted without reasonable grounds;

57. Determine whether the person has frequently instituted vexatious proceedings in Australia; and

58. Determine the manner in which the court’s discretion is to be exercised.

59. The defendants submit that the current proceedings are vexatious. The defendants have not previously sought an order under the Act despite the fact that two earlier sets of proceedings were pursued against them. The earlier proceedings have been dealt with in what I will describe as a conventional way. That is with reference to pts 13 and 14, UCPR.

60. The next criterion is to determine which, if any, of the proceedings are an abuse of process or instituted without reasonable ground. It is not necessary to delve further into the earlier judgments of Schmidt AJ and Chen J except to say that findings were made in those proceedings which would satisfy the second criteria in Zepinic.

61. The third criterion is to determine whether the person has frequently instituted vexatious proceedings. That is always a difficult question. In many of these types of applications, the number of separate proceedings is quite significant.

62. However, as said in Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129, the meaning of “frequently” “turns very much on its context” and involves “a relatively low threshold”. In other words, “frequently” can mean a small number of times depending on context.

63. It is not necessary that I reiterate everything said by Schmidt AJ or Chen J. In my view the proceedings the subject of this application involve substantially the same facts, background and issues as were involved in the two earlier sets of proceedings commenced by the plaintiff.

64. I have had regard to the judgments of both Schmidt AJ and Chen J and, in particular, their Honour’s findings as to the reasons for dismissing those two earlier proceedings. As her Honour said at [27] of her judgment in Martin v Malouf [2021] NSWSC 415, the claims the plaintiff was pursuing against the defendants in the 2022 proceedings had no prospects of success.

65. In Martin v Ross & Ors; Martin v Vardanega & Ors [2023] NSWSC 303, Chen J found the 2020 and 2022 proceedings were substantially the same and that it would be an abuse of process to allow the plaintiff to continue with the second set of proceedings. As his Honour said, “No appeal was brought from the orders made by Schmidt AJ”, and no explanation was offered “to justify the filing of ‘fresh proceedings’ in these terms.” The proceedings were thus dismissed.

66. In my view, the current proceedings are substantially the same as the 2020 and 2022 proceedings. I do not accept the plaintiff’s submission that there is a difference.

67. These proceedings are an abuse of process, just as the earlier proceedings were an abuse of process. They are an abuse of process because:

68. They do not disclose any cause of action;

69. Even allowing for the fact that the plaintiff is unrepresented and may have difficulty pleading her case, I am not satisfied that there could be any cause of action; and

70. The plaintiff is seeking to reagitate the same issues in these proceedings as have already been the subject of judicial determination.

71. The events which happened to the plaintiff happened a very long while ago. The plaintiff feels aggrieved about what happened in the early 2000s in respect of her compensation claim. I accept as she says that she has not worked since and she suffered substantial disadvantage and hurt as a result of what happened back in 2003. However, that does not entitle her to continue to bring claims against persons who were not acting for her back in 2003 and did not owe a duty of the type she maintains when acting on behalf of the defendant back in 2003.

72. I am satisfied that an order should be made under s 8 of the Act. I am satisfied that this is the third time the plaintiff has pursued the same parties on the same basis. None of her pleadings disclosed a proper cause of action, all were an abuse of process, all sought substantial sums of money without a proper basis, and, in all, she made scurrilous allegations against the defendants without any proper foundation.

Costs

66. The defendants have thus succeeded in their motion.

67. The defendants seek an order for costs. The plaintiff opposes that order stating she has no means to pay the costs and that she should not be ordered to pay costs bearing in mind the illegal nature of the hearing, the corrupt nature of the judgment and referring to a number of matters to which she already referred during her earlier submissions.

68. In my view, costs should follow the event, and I order that the plaintiff pay the defendant’s costs.

Orders

69. In the circumstances, I make the following orders:

70. The proceedings against the first, second and third defendants are dismissed pursuant to r 13.4, Uniform Civil Procedure Rules (2005).

71. The plaintiff is to pay the first, second, and third defendants’ costs.

72. Pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW), I order that the plaintiff not be permitted to commence proceedings against the first, second and third defendants arising out of any matter relating to her earlier compensation claim or any matter related to the proceedings commenced in 2020 (2020/337173), 2022 (2022/295916 and 2022/296130) and 2025 (2025/80318), without leave of the Court.

**********