[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
THE COURT: On 9 June 2023 the Court dismissed Ms Odtojan's application for leave to appeal from orders of the District Court which struck out her pleading whilst granting her leave to replead: Odtojan v Condon [2023] NSWCA 129. The amended statement of claim had alleged a conspiracy to pervert the course of justice on the part of the respondent, a senior counsel. The Court also made this order:
(3) Each of Ms Marie Odtojan and Mr Artem Bryl to have 14 days from today to show cause why this Court's judgment and the papers in this Court should not be referred to the Legal Services Commissioner.
Ms Marie Odtojan was the plaintiff in the District Court and the applicant for leave to appeal. Mr Artem Bryl is her husband. Both are legal practitioners. Ms Odtojan appeared for herself in the District Court, and signed the written submissions in this Court in support of her application for leave. Mr Bryl conducted the oral submissions in this Court, and confirmed that he accepted responsibility for the written submissions.
Paragraphs 80-85 of the Court's earlier judgment explained the basis for order 3:
The appropriate way for this Court to proceed
80 What emerges from the above is that either or both of Ms Odtojan and Mr Bryl have:
(1) accused the solicitor and junior counsel who acted for Ms Odtojan at the Local Court trial of a conspiracy with the opposing party and legal team to pervert the course of justice;
(2) accused senior counsel who advised on appeal prospects of participation in a further conspiracy and of acting fraudulently;
(3) submitted that a District Court judge who made a procedural order for a small amount of security for costs was biased and had acted in bad faith, which allegations were found to be unsubstantiated;
(4) accused the District Court judge who struck out a pleading whilst granting leave to replead of actual and apprehended bias, even though the pleading was concededly defective;
(5) accused those involved in the preparation of the application books of tampering with evidence and attempting to pervert the course of justice, without reasonable foundation; and
(6) more broadly, repeatedly accused the legal representatives of the respondent of serious breaches of professional ethical rules, without any apparent reasonable basis.
81 During the course of the hearing in this Court, having raised concerns about there being any proper basis for various of the allegations being made by Mr Bryl and Ms Odtojan, we gave the parties leave to draw the Court's attention to any relevant authorities as to how the Court should proceed if concerned about what had occurred. The respondent supplied references to Simpson v Hodges [2007] NSWSC 1230 at [266]-[268], Australian Building and Construction Commissioner v Parker (No 2) [2017] FCA 1082 at [89], Muriniti v Kalil [2022] NSWCA 109 at [105]-[107] and Day v Perisher Blue Pty Ltd (No 2) [2005] NSWCA 125. The first two decisions address what occurs when a court is of the view that an offence has been committed; they are not relevant to the position which arises if the Court formed the view that there had been serious and ongoing breaches of the rules of professional conduct. However, Muriniti v Kalil is apposite. There Brereton JA said:
[105] As has been noted, at various points of her Honour's reasons, the primary judge made observations about various aspects of the professional conduct of Mr Muriniti and Mr Newell, and foreshadowed that the matter would be the subject of a referral to the Legal Services Commissioner. Her Honour's formal orders included the following:
"Noted: These reasons are to be sent by the Registrar so that the matter may be referred to the Legal Services Commissioner to determine whether or not Mr Muriniti and/or Mr Newell have engaged in unsatisfactory professional conduct or professional misconduct."
[106] It is conventional that when a judge has in mind referring a legal practitioner to a professional regulator for disciplinary investigation, the practitioner is afforded an opportunity to show cause why there should not be a referral. This practice was not followed in this case. This was not a private complaint to the Legal Services Commissioner, nor a decision to institute disciplinary proceedings, in respect of which at common law there might be no right to be heard, but a formal decision recorded in a published judgment to refer a practitioner to a regulatory authority for disciplinary investigation, which of itself has serious potential reputational consequences for a practitioner, such as to attract the principles enunciated in cases such as Mahon v Air New Zealand, Annetts v McCann and Ainsworth v Criminal Justice Commission. [footnotes omitted]
82 His Honour regarded what had occurred in that litigation as involving a denial of procedural fairness. Further, in Day v Perisher Blue Pty Ltd (No 2) an opportunity was given to the solicitors to show cause why the papers should not be referred to the Legal Services Commissioner.
83 Although during the course of the hearing Mr Bryl was squarely confronted with the possibility that this Court might find that there had been a breach of rule 32, it may be that he was under a misapprehension of the applicability of the rules of professional conduct to cases where a solicitor brings proceedings as plaintiff and acts for herself, or of the potential application to himself when acting as a McKenzie friend. It is also possible that the interests of Mr Bryl and Ms Odtojan are not wholly aligned on this issue. On balance, we have concluded that each of Mr Bryl and Ms Odtojan should be given a further opportunity to show cause why this Court should not refer this judgment and the papers in this application to the Legal Services Commissioner.
Conclusion
84 The orders of the primary judge were entered on 17 February 2023. The summons seeking leave to appeal was filed more than 28 days later, on 30 March 2023. An extension of time is thus required: UCPR, r 51.16. The delay is not extensive, no prejudice has been identified and in all the circumstances the extension should be granted. The application for leave to appeal should be dismissed with costs. In the circumstances outlined we consider it appropriate to order that the costs be payable forthwith.
85 Ms Odtojan and Mr Bryl should be provided with an opportunity to show cause why this judgment and the papers in this application should not be referred to the Legal Services Commissioner. Either or both of them may, if they wish, exercise that entitlement by filing submissions and affidavits and supporting materials within 14 days of today. If either of them seeks to be heard orally, that should be stated in the submissions. The materials should also be served on the respondent, but we do not at this stage intend to make a direction permitting him to be involved in that process, although we will review the position if and when any materials are supplied.
Slightly after the 14 days permitted, an affidavit of Ms Odtojan of 15 pages excluding annexures, and submissions of 12 single-spaced pages signed by both Ms Odtojan and Mr Bryl, were filed on 27 June 2023. We have had regard to both documents, notwithstanding the minor breach of the timetable.
There is nothing in the submissions or affidavit to suggest that Ms Odtojan or Mr Bryl have obtained the advice of any other legal practitioner.
The submissions do not contain any statement that that they seek to be heard orally. Accordingly, we are dealing with the issue on the papers.
Much of the contents of the affidavit are repeated in the submissions. In large measure both documents are directed to points about what did and did not occur at the hearing in the District Court and in this Court, and the merits of this Court's determination of the leave application. Nothing useful is served by summarising those aspects of the submissions, which travel well beyond the direction to show cause why the judgment and papers should not be referred to the Legal Services Commissioner. Many of the allegations discussed in the earlier reasons of this Court are repeated. That repetition is irrelevant to the only issue remaining before the Court, being the referral issue, save to the extent that the fact of repetition militates in favour of the referral now occurring.
What follows in these reasons is directed to the minority of the submissions which directly bear upon whether the referral should occur.
[3]
Paragraph 10(m)
We do not accept the correctness of paragraph 10(m), which is as follows:
The Justices raised for the first time the issue of "unfounded allegations" regarding the Applicant's pleadings/claims in conspiracy, the issues of ethical obligations of legal practitioners, and referral to the OLSC, which were not matters raised and addressed in the DC hearing before Judge Norton.
As recorded in [32]-[33] of our earlier reasons, the written submissions in the District Court filed on behalf of Ms Odtojan were critical of a submission put against her, namely, that "Ms Odtojan, as a solicitor, has engaged in conduct unbecoming of a solicitor by abusing 'absolute' privilege". Ms Odtojan's submissions in response said that to make "such unfounded allegations is a breach of his duties and misleads the court". The reference to "unfounded allegations" is to be understood as extending to r 32 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 which is headed "Unfounded allegations" and prohibits allegations against other Australian legal practitioners or unsatisfactory professional conduct or professional misconduct unless made bona fide and with a proper basis.
The unfounded allegation of conspiracy was central to the hearing before Norton DCJ. It was the principal subject of Ms Odtojan's submissions and the judge's questions at transcript pp 23-35 of the hearing on 16 February 2023. After ascertaining what the conspiracy was said to be, her Honour said at transcript p 26:
HER HONOUR: I've read this statement of claim and it doesn't comply with the rules of pleading. Normally, I'm not one to enter summary judgment or to strike out entirely a statement of claim. But this statement of claim is defective and if you're pleading a conspiracy there are certain things you have to clearly plead. Who is part of the conspiracy? When did they join the conspiracy? What was the agreement between them? What steps did they take in furtherance of the conspiracy? What was the purpose of the conspiracy?
There was the following exchange at transcript p 27:
HER HONOUR: … [W]hat is your cause of action against Mr Condon. Your cause of action against him is that he joined a conspiracy.
PLAINTIFF: Yes, as you and I'm -
HER HONOUR: And when did he join that conspiracy, and how can you prove that he knowingly reached an agreement with people who had acted.
PLAINTIFF: At the time when he gave appeal advice to me, around 17 August 2016, it's very limited time interaction I had with him. I only had one meeting with him, and the first meeting he never spoke about any contract. Subsequent written advice, he refers to a contract, and that's in my exhibit 1 and 2 in relation to the appeal advice on 12 September and on 13 September. It's very limited scope, and it's confined within that area, and I'm saying that the appeal advice is what is material, what is the content in that appeal.
I'm alleging that it is fraudulent, and my friend here has gone through the judgment, which I think is irrelevant, in the terms that he cannot rely on judgment under s 91 of the Evidence Act to prove a fact. If he's referring a lot to a contract, then that can't be relied upon under that Act; that's impermissible. In relation to Mr Condon, the appeal advice I'm alleging is fraudulent, and my cause of action is not just limited to conspiracy. It is tort of deceit and intentional negligence.
HER HONOUR: I was dealing with them one at a time in a way that I thought might help focus you. In a good pleading, you plead those things which you have facts to prove. So, if you don't have the facts necessary to prove a conspiracy, even if you think there was a conspiracy, not a good idea to plead it. If you think it was fraudulent advice and you have facts to back that up --
PLAINTIFF: Yes, I do. It's in his appeal advice.
HER HONOUR: -- plead that, if you think it was done in deceit, but your statement of claim at the moment is not clear, and it's certainly not clear that you have, even [if] it's taken at its highest, that it would establish a conspiracy that Mr Condon joined for some reason, not made clear by reading this statement of claim, at some time, also not clear, and by reaching some agreement to further the conspiracy, also not clear. The statement of claim, so far as it refers to a conspiracy with Mr Condon, just cannot stand the way it is …
The exchanges concerning the allegations of conspiracy and what was not pleaded continued over the next few pages, when her Honour said at transcript p 32:
HER HONOUR: The statements of claim are, with respect to a large number of paragraphs, very much the same. And they all suffer, in my opinion, from the same problem. What is the conspiracy? What is the purpose of the conspiracy? When was it formed? How can you prove that there was an agreement? What were the positive steps taken by each party in the conspiracy to advance the conspiracy? And at the moment, I can't even see what benefit the conspiracy possibly could have been to any of the people that you have brought proceedings against. But that's by [the] by.
It is, thus, incorrect to submit that the unfounded allegations regarding Ms Odtojan's claims in conspiracy were not matters raised and addressed in the District Court.
It would and should have been clear to those involved in the hearing in the District Court that Ms Odtojan and Mr Bryl, as legal practitioners, were under heightened obligations when invoking legal process. The written submissions in the District Court on that topic are referred to at [11] above. Further, at the outset of his submissions to that Court, the first thing said by senior counsel for Mr Condon was:
Your Honour, the plaintiff, Ms Odtojan, is a solicitor. She was admitted to practice on 12 February 2010, and is currently a principal of Odtojan Bryl lawyers. (Transcript, p 2).
At the outset of Ms Odtojan's submissions, immediately after she referred to an allegation of gross dishonesty, her Honour said:
HER HONOUR: A pleading has to be very clear about what it is that's being alleged.
PLAINTIFF: Yes.
HER HONOUR: And no doubt, you are very well aware of that. (Transcript, p 23).
However, the written submissions are correct insofar as they state that the ethical obligations of legal practitioners were much more directly raised in this Court. Those obligations were not only raised by each member of this Court in the course of the hearing, as some parts of the submissions and affidavit may tend to suggest. They had been raised in correspondence sent to Ms Odtojan on more than one occasion by the solicitors for the respondent, which correspondence was before this Court (see, for example, the letter of 18 May 2023 quoted at [68] of our earlier reasons). Moreover, as noted at [67] of our judgment, an affidavit from the solicitor on the record for the respondent, Mr Berg, was read at the leave hearing without objection. In that affidavit Mr Berg said that "[t]he applicant, either directly or through Mr Bryl, has made numerous allegations of misconduct by me, Mr McInerney SC and the respondent's legal team generally". He then said that "[n]otwithstanding my letter of 18 May 2023 and the fact the serious allegations made by or on behalf of the applicant are without factual or evidentiary foundation, the applicant continues to make such allegations as is evidenced in the Reply".
[4]
Paragraph 13
This paragraph states:
The Justices, in their judgment, without due process of a final hearing, made a determination of the Applicant's serious applications of dishonesty/ fraud/conspiracy in the procedural leave hearing representing that [the] Applicant's claims are unfounded.
That is incorrect. There was a final hearing of Ms Odtojan's application for leave to appeal from an interlocutory decision striking out her pleading and granting her leave to replead. There has not been a final hearing of any of the allegations of dishonesty or fraud or conspiracy made in Ms Odtojan's struck-out pleading, still less has there been any determination of those issues, either in the District Court or in this Court. We do not agree that there has been any want of due process.
More generally, other parts of the affidavit and the submissions suggest that the Court "made pre-judgments" in relation to the concerns raised about the conduct of Ms Odtojan and Mr Bryl. The basis of the concerns outlined in the earlier reasons were set out in that judgment, where the issue of the propriety of making serious allegations without proper foundation had squarely been raised in the course of the hearing of the leave application, having been raised earlier by the respondent's solicitor. In any case, the point of order 3 was to give the two practitioners an opportunity to provide reasons why a referral should not be made.
[5]
Paragraphs 14 and 28-30
Paragraph 14 states:
The Applicant, a party to proceedings, has been threatened, as follows:
a. For exercising her legitimate rights and interest to make a claim against the Respondent.
b. Her profession and/or business is used against her. The Applicant/her firm has not acted in the capacity of a legal practitioner/firm in the 2014-2016 LCProceedings and in these proceedings before the DC and the NSWCA.
c. Raising irrelevant matters/proceedings against the Applicant, not within the application of the leave hearing and/or not before the judicial officers.
d. For giving appropriate notice to the court of the other party's conduct of misleading the court, filing a Response providing, inter alia, reasons where no such reasons were made by Judge Norton, and for tampering with court documents in their Supplementary White Book and filing it at court which is evidenced by the documents before the Court.
e. For raising bias as a ground of appeal and exercising her rights to seek leave to appeal.
There is much in that submission which is incorrect. First of all, Ms Odtojan has not been "threatened" in any sense other than being given notice of a right to be heard against a contemplated course of action. And the potential referral relates not to the exercise of her legal rights but the manner in which she and Mr Bryl have conducted themselves. The same point applies to paragraph 14(e).
As to paragraph 14(b), Ms Odtojan and Mr Bryl continue to be under the impression that the Australian Solicitors' Conduct Rules do not apply to them. In the case of Ms Odtojan, that is because she is a self-represented litigant acting for herself, rather than acting for a client. In the case of Mr Bryl, that is because his is acting as a McKenzie friend. That belief is incorrect, for the reasons explained in [32]-[35] of our earlier judgment, which included the following:
The suggestion that Ms Odtojan is free from her professional obligations because she herself is a litigant misapprehends the obligations of a solicitor.
Rules 5 and 32 were reproduced in the earlier reasons. The words in r 5 "in the course of legal practice or otherwise" are unambiguous. The rule is not confined to cases where the solicitor is acting for a client. The prohibition in r 32 likewise is not restricted to cases where a solicitor is acting for a client.
The earlier reasons for judgment said at [35]:
Both of those rules were applicable to Ms Odtojan when she was appearing for herself in the proceedings in the District Court. Both of those rules were applicable to Mr Bryl when he was speaking for Ms Odtojan in this Court.
Significantly for present purposes, it is clear from the submissions signed by Ms Odtojan and Mr Bryl that each continues to contend that neither rule applies to him or her, in connection with Ms Odtojan's own litigation.
The submissions state at paragraphs 28-30 that:
As per [26] above, rules 5 and 32 of the Legal Professional Uniform Law Australian Solicitor's Conduct Rules 2015 are not applicable to the Applicant and her advocate, Mr Bryl.
The Applicant is entitled to exercise her legitimate rights and interest to make a claim against her former legal representatives.
The Applicant is exercising her rights as a client and is not in the capacity of a legal practitioner in making her claim against the Respondent.
No legal practitioner ought to be under any misapprehension about the application of these rules. However, even after what was said in this Court's earlier reasons for judgment, Ms Odtojan and Mr Bryl continue to maintain that the rules were inapplicable to them.
We reiterate that a solicitor who appears for herself is bound by rules 5 and 32. A solicitor who appears as a McKenzie friend is bound by rules 5 and 32. Those rules apply to all of the conduct of solicitors, irrespective of whether they are acting for a client or acting for themselves or acting as a McKenzie friend. The submissions which continue to be advanced by Ms Odtojan and Mr Bryl that they are not so bound, and that their being held to those professional rules is somehow wrong or unjust, is a matter of serious concern.
As for the point raised at paragraph 14(c) - along with a similar point made at paragraph 43 of the submissions - the issue relating to the manner in which Ms Odtojan and Mr Bryl had made allegations was one which had been raised prior to the hearing, as has already been noted. Moreover, this Court exercises a supervisory jurisdiction over legal practitioners, and its role extends in appropriate case to referring legal practitioners to the regulators of the profession.
Paragraph 14(d) repeats serious allegations without proper foundation that are in any event irrelevant to the referral issue.
[6]
Paragraphs 41-46
Paragraphs 41-42 and 44-46 of the submissions also raise matters which should be addressed. Paragraphs 41 and 42 state that:
The Applicant's claim of serious allegations against Mr Condon SC which pertain to criminality is not a matter to be determined by the OSLC.
The Justices have placed the OLSC higher than the courts to deal with serious allegations requiring a final hearing. To determine whether the allegations are unfounded requires due process of a final hearing.
The only issue for the Legal Services Commissioner is whether any steps should be taken in light of the conduct of Ms Odtojan and Mr Bryl. The Legal Services Commissioner will not deal with the serious allegations made against Mr Condon, and there could be no suggestion that the Legal Services Commissioner is "placed higher" than the courts. Ms Odtojan does not have an unqualified entitlement to a final hearing merely because she makes serious allegations. Before there can be a final hearing, the defendant is entitled to a properly pleaded and particularised case. This has not hitherto occurred.
Paragraphs 44 and 45 state:
It is not a matter for the Justices to engage in obtaining evidence from the Applicant of the alleged conduct of the Respondent at the leave hearing.
Throughout the leave hearing, the Justices were focused on the Applicant and Mr Bryl's ethical obligations and interrogated Mr Bryl, constantly interrupting him. However, the Justices showed no concern about the conduct of the Respondent and his legal representatives, as set out in [33] of the Affidavit_MJO.
The meaning of the first paragraph is not apparent. As for the second paragraph, the transcript indicates that Mr Bryl was not "constantly" interrupted, and was in fact permitted to address the Court for an extended period, as set out in the earlier reasons at [4]. Beyond that, the criticism made is not relevant to the issue at hand.
[7]
Paragraph 55 and conclusion
The concluding submission is paragraph 55:
As set out in these submissions, there is no basis for referral of the Applicant and Mr Bryl to the OSLC. The issues are ongoing, unresolved, and there is no finality. To determine the Applicant's allegations which pertain to criminality, are unfounded requires a final hearing at the appropriate forum.
Ms Odtojan was given leave to replead, and extended time within which to do so. So far as we are aware, that has not occurred. Nor was any interlocutory relief sought within that time. It may be open to Ms Odtojan to seek to replead out of time, but if and when that occurs, that will be a matter for the District Court to resolve, and no doubt much will turn on the quality of the proposed pleading. We say this because insofar as the issues concern Mr Condon, there is not (so far as we are aware) any pending pleading in the District Court. The contention that by making an allegation which pertains to criminality Ms Odtojan is without more entitled to a final hearing misconceives basic aspects of the legal system. It also manifests a continued failure to grasp the need to have a proper basis for making serious allegations within the court system before those allegations are made.
More generally, the materials provided by Ms Odtojan and Mr Bryl do not show cause why this Court's judgment and the papers in this Court should not be referred to the Legal Services Commissioner. If anything, they reinforce that such a referral is appropriate given their reiteration of serious allegations without any apparent proper foundation and the apparent ongoing misunderstanding by Ms Odtojan and Mr Bryl of their obligations as legal practitioners.
The whole of the papers will be referred to the Office of the Legal Services Commissioner. They are quite voluminous, but it is better that all of the materials be provided, noting that the most important are the pleading which was struck out by the District Court, the transcript of the hearing before Norton DCJ on 16 February 2023, Ms Odtojan's email to her Honour's Associate dated 24 February 2023, the transcript of the hearing in this Court on 31 May 2023, the reasons for judgment of this Court of 9 June 2023 and today, and the affidavit and submissions dated 27 June 2023.
[8]
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: 03 July 2023