Potkonyak & Ors v Commonwealth of Australia

Civil Liability Act 2002 Civil Procedure Act 2005 LEGISLATION CITED: Family Law Act 1975 (Cwth) Uniform Civil Procedure Rules 2005, r 5.2 Supreme Court Rules, 1970 Part 3

AAMI v NRMA Insurance Ltd [2002] 124 FLR 518 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25 Dey v Victorian Railways Commissioner [1949] HCA 1; (1949) 78 CLR 62 Exley v Wyong Shire Council, NSWSC Master Allen, Unreported 9 December 1996 Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 General Steel Industries Inc v Commissioner for Railways NSW & Ors [1964] HCA 69; (1964) 112 CLR 125 John Fairfax & Sons Ltd v Cojuangco (1987) 8 NSWLR 145 CASES CITED: John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346 Luxton v Vines [1952] HCA 19; (1952) CLR 352 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Potkonyak v Lenda [2006] FamCA 947 Potkonyak v Powell [2007] NSWDC 282 RTA of NSW v Australian National Car Parks Pty Ltd [2007] NSWCA 114 Rajski v Powell & Anor (1987) 11 NSWLR 522 Scanlon v Director-General, Department of the Arts, Sport and Recreation [2007] NSWCA 204; (2007) 70 NSWLR 1 Stewart v Miller & Anor [1979] 2 NSWLR 128 Yeldam v Rajski [1989] 18 NSWLR 48 Webster v Lampard [1993] HCA 57;(1993) 177 CLR 598

George Potkonyak (First plaintiff) Jacob Potkonyak (Second plaintiff) PARTIES: Daniel Potkonyak bhnf George Potkonyak (Third plaintiff) Commonwealth of Australia (Defendant) Robert Walsh (Respondent to the summons)

Mr G Potkonyak (In person as first plaintiff and as solicitor representing second and third plaintiffs) COUNSEL: Mr MG Kathner (Solicitor for the defendant in the proceedings) Mr ATS Dawson (Respondent to the motion for discovery)

Mr G Potkonyak (Plaintiffs) SOLICITORS: Australian Government Solicitor (Defendant in the proceedings) Colin Biggers & Paisley (Respondent to the motion for discovery)

There are two interlocutory applications for determination. The first application concerns a summons filed by the plaintiffs which in effect seeks identity discovery from Pastor Robert Walsh, the respondent to the summons. By this summons the plaintiffs seek to identify the legal status of the entity known as the Potters House Christian Fellowship or Church at Parramatta ("the Church"). The summons also seeks to identify potential further defendants amongst the membership of that organisation. The second application concerns a notice of motion filed by the defendant, the Commonwealth of Australia. The motion seeks to strike out the plaintiffs' statement of claim pursuant to UCPR Part 14 r 14.28 and to also have the proceedings dismissed pursuant to UCPR Part 13 r 13.4.

The statement of claim was filed on 28 May 2009. The statement of claim names three plaintiffs, the first being Mr George Potkonyak. The second and third named plaintiffs are his sons Jacob Potkonyak and Daniel Potkonyak. The second plaintiff is an adult. The third plaintiff is aged 17 years and is still a minor. The first plaintiff is his tutor in these proceedings.

In these proceedings Mr Potkonyak seeks to bring claims framed in negligence and vicarious liability solely against the Commonwealth of Australia concerning alleged acts, neglects and defaults on the part of various Family Court officials and staff in connection with other litigation that he has in the past conducted in that court and which involved issues between himself and his former wife.

On 16 June 2009, in these proceedings, the plaintiff filed a summons seeking identity discovery in respect of further potential defendants. Pastor Robert Walsh is named as the respondent to that summons. On 2 July 2009 Pastor Walsh filed an unconditional appearance. On 3 July 2009 the Commonwealth of Australia filed an unconditional appearance in the proceedings and later, on 6 July 2009, filed its notice of motion seeking to strike out and dismiss the proceedings brought by the plaintiffs. On 24 July 2009 the scheduled hearing of these interlocutory matters had to be adjourned owing to an urgency that had arisen concerning one of Mr Potkonyak's professional commitments.

In my view nothing of procedural significance turns on the fact that Mr Potkonyak has sought to pursue a summons for identity discovery pursuant to UCPR r 5.2 in the same proceedings as the principal claim against the Commonwealth of Australia.

Relief claimed in the principal proceedings brought by the plaintiffs

The statement of claim is a complex document in which various forms of damages are claimed against the Commonwealth of Australia.

Mr Potkonyak seeks to recoup a number of heads of alleged financial losses arising out of previously determined Family Court proceedings. He also seeks to recover damages for non-economic loss due to emotional harm he claims to have incurred following his involvement in protracted litigation in the Family Court. He traces the origins of that emotional harm to have been allegedly caused by the respondent to the summons. In addition to compensatory damages, Mr Potkonyak seeks aggravated and exemplary damages against the Commonwealth of Australia.

The claims made on behalf of Mr Potkonyak's two sons are in respect of alleged emotional harm occasioned to them by reason of the effect of protracted Family Court proceedings. On their behalf, claims are also made against the Commonwealth of Australia for compensatory, aggravated and exemplary damages.

In the principal proceedings Mr Potkonyak claims that the respondent and various members of the Church interfered with the relationship between himself and his children. Mr Potkonyak also makes a claim for declaratory relief in relation to possible future harm that he anticipates might be occasioned to his two sons and also to his daughter.

The statement of claim foreshadows the possibility that the respondent to the summons for discovery might also become a second defendant to the proceedings. A clinical psychologist who gave evidence in the Family Court proceedings, is identified as a possible third defendant. The statement of claim also foreshadows that Mr Potkonyak's daughter, Esther Potkonyak, might become a fourth plaintiff. The assumption upon which the plaintiffs proceed is that the joinder of additional parties might occur following the making of the orders for the discovery as sought in the summons.

The Commonwealth of Australia has submitted that the claims made by the plaintiffs raise scandalous allegations and merits a strike out order. Pastor Walsh, the respondent to the summons, claims that the request for discovery by the plaintiffs is without merit and ought to be refused.

In the summons brought by the plaintiffs the following issues arise for determination: (a) Whether the plaintiffs have made out a threshold case for the making of orders for identity discovery against the respondent;

(b) Whether, having regard to the evidence and the timing of relevant events, the exercise of discretion requires that an order for identity discovery should be made as sought;

In the motion brought by the defendant the following issues arise for determination: (a) Whether the proceedings are frivolous or vexatious or not disclosing of a reasonable cause of action such as to amount to an abuse of process;

(b) Whether the statement of claim should be struck out pursuant to UCPR r 14.28 and the proceedings dismissed pursuant to UCPR r 13.4.

The first plaintiff, Mr George Potkonyak, was born in 1941. He is presently aged 68 years. He has a background in computers and is now a pensioner. He holds a practising certificate as a solicitor. He was admitted to practise in NSW in 2008. He and his former wife have had a history of unhappy litigation in the Family Court of Australia. That litigation concluded on 28 September 2006 when the Full Court of the Family Court dismissed Mr Potkonyak's appeal in the last round of their proceedings in that jurisdiction : Potkonyak v Lenda [2006] FamCA 947.

In those proceedings, through consent orders made on 5 September 2005 and 13 July 2006, Mr Potkonyak and his former wife were able to ultimately reach resolution on all matters of legal dispute that subsisted between them except for one intractable issue. The outstanding issue concerned the attendance of Mr Potkonyak's children at meetings of the Church. The attendance of his children at the Church proved to be an ongoing cause of concern for Mr Potkonyak. He described the Church as a Christian religious sect that appears to have its origins and allegiances, including financial obeisance, to a similar organisation in Arizona, Illinois, USA. Mr Potkonyak was a former member and attendee of the Church which he now describes as a cult.

The unhappiness of the family law proceedings relates to Mr Potkonyak's concerns over possible abuse, possible undue influence and alleged mental harm occasioned to his children by reason of their association with the Church and its practices. The attendance of his children at the Church has been at the insistence of his former wife. After he left the Church Mr Potkonyak has been persistently trying to prevent his children from attendance at the Church. I accept that his motivation in pursuing that course has been out of a sense of duty he feels he has, as a father to his children and on a consideration of the best interests of his children.

Over the course of time Mr Potkonyak's sons no longer remained associated with the Church. However, his daughter still remains associated with the Church and she has married within the Church.

Mr Potkonyak has pursued other litigation in this court concerning the alleged emotional damage that he claims has been occasioned to his children. In this regard, he unsuccessfully sought to obtain leave to proceed against a clinical psychologist whom he claims gave misleading evidence in family law proceedings that were instituted between himself and his former wife. On 19 February 2007 those other proceedings in this court were dismissed as being futile on account of witness immunity from suit and because those proceedings illegitimately sought to impugn the outcome of the decision of the Family Court : Potkonyak v Powell [2007] NSWDC 282 per Nielsen DCJ. On 24 September 2007, by order of the Court of Appeal, Mr Potkonyak was refused leave to appeal from that decision.

Mr Potkonyak has failed in his past attempts to re-agitate issues that had already been litigated in the Family Court. His attempts to impugn relevant decisions of the Family Court that have been a cause of disaffection for him have been declared to be at an end by reason of the refusal of the High Court of Australia to grant him special leave to appeal from the decision of the Full Court of the Family Court. Similarly, by reason of the refusal of the NSW Court of Appeal to grant him leave to appeal the decision in Potkonyak v Powell [2007] NSWDC 282, his attempts to bring a damages claim against Dr Powell in respect of evidence given by Dr Powell in the family law proceedings have also been declared to be at an end.

These circumstances have resulted in a decision by Mr Potkonyak to attempt, through these proceedings, to claim damages against the Commonwealth of Australia in respect of alleged acts, neglects, defaults and asserted misfeasances said to have been perpetrated by court staff and unknown and unnamed officials of the Family Court. The Commonwealth of Australia has moved to strike out and dismiss these proceedings.

Mr Potkonyak's argument concerning the potential liability of the Commonwealth of Australia raises grievances against "the administrative arm of the Family Court" and raises allegations of wrongful acts by Family Court staff. These include allegations concerning wrongful disposal of evidence by a judge's Associate, the forging of court orders, manipulation of a judgment and manipulation of evidence presented to a Family Court Judge. Mr Potkonyak submits that such allegations are too serious to be summarily dismissed.

In the course of the foregoing events Mr Potkonyak has become convinced that the influence of the Potter House Church has had a detrimental effect on the mental health of himself and his children. He claims that the respondent to the summons, Pastor Walsh, as pastor of the Church, has by his conduct, acted in breach of a fiduciary duty that was owed to Mr Potkonyak and to his children. Mr Potkonyak claims that a fiduciary duty arises from the pastoral relationship that subsisted between himself, members of his family and Pastor Walsh. As a result he alleges there has been a relevant breach of duty of care that ought to sound in damages.

In his desire to bring proceedings against Pastor Walsh, Mr Potkonyak is anxious to ensure that he identifies the legal status of the Church and such other defendants who are "members" of the Church who might be appropriately joined in those proceedings. Mr Potkonyak's attitude in this regard arises from suspicions he holds over the legal status of the Church and its membership as well as the role some members of the Church may have taken in the events which have led to his present situation. His suspicions in this regard have been fuelled by the stated refusal of Pastor Walsh to answer enquiries in which particulars were requested of the legal status and identity of the Church. The question of the legal status and identity of the Church has been clouded by various descriptions and names that have been ascribed to the Church over the course of time.

In paragraph 7 of his affidavit sworn on 21 July 2009, Pastor Walsh acknowledged receiving a letter of request from Mr Potkonyak concerning such details. In paragraph 8 of the same affidavit Pastor Walsh stated his refusal to supply such information on account of his belief that Mr Potkonyak has taken an adversarial stance against the Church. His evidence was in the following terms: "8. Although I do not recall the letter in detail, I did not respond to it because of the adversarial stance which Mr Potkonyak has taken against the Church."

The evidence discloses that Mr Potkonyak has sought, without success, through ASIC searches, to ascertain the legal status of the Church. The result of his enquiries in this regard have been inconclusive and this has led him to take the step of pursuing orders for identity discovery of further potential defendants as sought in the summons that he has filed in these proceedings.

Evidence tendered in these interlocutory applications

In the course of a brief opening address and during the submissions outlining the applications before the court a number of documents were marked for identification. This series of markings was continued during the course of submissions when on the resumption of the hearing, further documents were identified. These documents were enumerated in the series MFI "1" to MFI "15." Subject to the resolution of objections to some aspects of Mr Potkonyak's documents being dealt with, the parties ultimately agreed with the suggestion that the series of MFI documents were to be treated as exhibits on the hearing of the motion and the summons. For expediency, it was also agreed that Mr Potkonyak's oral submissions were also to be treated as evidence in these interlocutory proceedings.

The following documentary evidence was identified: (a) MFI "1" comprised the plaintiffs' summary of argument offering resistance to the defendant's strike out motion and justifying the application for identity discovery;

(b) MFI "2" comprised the affidavit of the plaintiff George Potkonyak sworn on 16 June 2009;

(c) MFI "3" comprised the affidavit of the plaintiff George Potkonyak sworn on 20 July 2009;

(d) MFI "4" comprised the affidavit of the plaintiff Jacob Potkonyak sworn on 20 July 2009;

(e) MFI "5" comprised the affidavit of the plaintiff George Potkonyak sworn on 22 July 2009;

(f) MFI "6" comprised the affidavit of Enoch Yan-Tak Law sworn on 20 July 2009; (g) MFI "7" comprised the affidavit of the Pastor Robert James Walsh sworn on 21 July 2009;

(h) MFI "8" comprised a copy of a judgment of the Full Court of the Family Court in the appeal in Potkonyak v Lenda [2006] FamCA 947;

(i) MFI "9" comprised a copy of the judgment of the Court of Appeal delivered on 24 September 2007 refusing leave to appeal from the decision in Potkonyak v Powell [2007] NSWDC 282.

(j) MFI "10" comprised the orders of the High Court of Australia dismissing the plaintiff's application for special leave to appeal from the decision of the NSW Court of Appeal in relation to Mr Potkonyak's failed proceedings against Dr Powell : Potkonyak v Powell [2008] HCASL 232.

(k) MFI "11" comprised a copy of the plaintiff's treating psychiatrist's report to the Family Court, dated 17 December 2003 and various items of correspondence that flowed between him and the Chief Executive Officer of the Family Court concerning Mr Potkonyak's particular disaffection with aspects of the course that his litigation took in that court;

(l) MFI "12" comprised a number of documents. These included: (i) some extracted summaries of a textbook about the theoretical manner in which children are susceptible to harm as a consequence of involvement with the activities of cults where cults seek to undermine the role of parents;

(ii) correspondence from Mr Potkonyak to Pastor Walsh requesting the return of monies given by his 15 year old son Jacob to the Church as " tithes and other offerings " thereby giving rise to a suggestion of undue influence;

(iii) a reply from Pastor Walsh's wife concerning Jacob Potkonyak's " offering " which in effect declined the return of monies given to the Church by Jacob Potkonyak;

(iv) an assessment report from the Department of Community Services expressing concern over the alleged dictatorial approach of the Pastor of the Church, concerning the giving of money to the Church, and where reference is made to matters of discipline and the practice of the Church concerning its strongly held beliefs with regard to demon possession and exorcism;

(v) a portion of a counsellor's report commenting on video material Mr Potkonyak had assembled " about the sect " which I infer relates to the Church and about which the counsellor thought, without expressing a concluded view, was " suggestive of attitudes and practices which are extremely disturbing ";

(vi) a police running note minuting a conversation between a DOCS district officer and a police officer concerning that police officer's enquiries of Pastor Walsh and his wife; (vii) copies of letters from Centrelink to Mr Potkonyak's former wife, Mrs Renata Potkonyak, such letters being addressed to her care of Pastor Walsh's wife, Mrs Anne Walsh. The correspondence related to Mrs Potkonyak's pension and family allowance payments;

(viii) the reasons for judgment of a Local Court Magistrate who made interim residential, access and parenting orders on 1 May 2000 with regard to Mr Potkonyak's children;

(ix) an affidavit of Pastor Robert Walsh sworn on 12 October 1999 in the family law proceedings;

(x) ASIC searches results obtained by Mr Potkonyak concerning various Potters House entities;

(xi) other correspondence received by Mr Potkonyak and some research materials which are not relevant and which do not require description. (m) MFI "13" comprising orders made by the Family Court on 5 September 2005 in proceedings SYF. 5903 of 1999 between Potkonyak v Lenda concerning parenting orders;

(n) MFI "14" comprising orders made by the Family Court on 13 July 2006 in proceedings SYF. 5903 of 1999 between Potkonyak v Lenda concerning contact and residential matters;

(o) MFI "15" comprised a short and undated letter from Mr Potkonyak's current treating clinical psychologist. This letter had been emailed to Mr Potkonyak on or about 24 August 2009 and was intended for use in these proceedings to indicate the current state of Mr Potkonyak's health.

Objections were taken to aspects of the material tendered by Mr Potkonyak. For expediency, the material was conditionally admitted into evidence subject to an evaluation of its relevance following submissions from the parties. Essentially, the objections were as to form, hearsay and relevance. Ultimately, on consideration of the nature of the interlocutory issues that have been raised for decision, and given that Mr Potkonyak's perceptions of events are relevant to a determination of firstly, whether he is entitled to discovery and secondly, whether a justiciable issue has been raised or whether his claim should be struck out, I have concluded and therefore ruled that the evidence in contention is admissible for the limited purpose of dealing with the issues arising for decision on the summons and in the notice of motion. In coming to this view I have had regard to the need to give proper consideration to the facts contended for by the plaintiffs when those facts are taken at their highest for the purpose of determining the issues calling for decision in an application for summary dismissal.

The Commonwealth of Australia has submitted that I should characterise Mr Potkonyak's claim as being frivolous, vexatious and not disclosing of a reasonable cause of action so as to amount to an abuse of process and meriting orders for strike out and dismissal. In support of that submission I was informed that in the past, the Commonwealth of Australia had succeeded in having Mr Potkonyak declared a vexatious litigant in the Family Court of Australia. Since that declaration was made Mr Potkonyak has not only been substantially occupied in the matters that have given rise to the proceedings, but he has also taken the time and trouble to pursue and graduate in legal studies. In December 2008 he was admitted as a legal practitioner of the Supreme Court of NSW. He currently holds a practising certificate commensurate with that entitlement.

The Commonwealth has submitted, having regard to the nature and content of Mr Potkonyak's previous litigation, including his previously declared status as a vexatious litigant in the Family Court, that I should regard the current litigation as being of a vexatious character. In my view that submission carries with it an unwarranted inference as to general vexatiousness on Mr Potkonyak's part and I consider that it should be rejected. In my view, until it has been declared to the contrary, Mr Potkonyak's status as a solicitor carries with it a presumption as to good fame and character, a professional status which I consider to be inconsistent with the characterisation of him being a vexatious litigant. I do not consider that the previous order of the Family Court declaring Mr Potkonyak to be a vexatious litigant requires that he be regarded as such in this court.

In December 2003 it was the opinion of the psychiatrist who was treating Mr Potkonyak that at that time he was suffering from an adjustment disorder with anxiety, most likely precipitated by ongoing litigation with his former wife and also by reason of his concern over the wellbeing of his children. More recently, Mr Potkonyak has been seeing a clinical psychologist who has diagnosed him to be suffering from severe depressive episodes characterised by insomnia, poor concentration, diurnal mood variation, anhedonia and psychomotor slowing at times. These were said to be indicative of depression and anxiety in the severe range of symptoms of stress. On the basis of this evidence I infer that the current litigation has an influence on these conditions that affect Mr Potkonyak.

It needs to be stated that Mr Potkonyak presented his oral arguments in a sincere and moderate manner. He was obviously committed to pursuing, through the process of litigation, the righting of his perceptions of past wrongs that have impacted upon himself as well as upon the welfare of his children. In my view there was nothing vexatious or objectionable about his manner of addressing his opponents or the court. In that regard he was entirely proper and respectful. Further, when the nature, adequacy and content of his statement of claim was debated critically, he appropriately conceded that his document was not perfect or free from defects. I consider that he was not inappropriately argumentative in making his submissions. His arguments did not occupy undue time and he appropriately acknowledged the legal obstacles which he had to overcome in order to achieve the orders he was seeking. I draw no adverse credit inferences either from his presentation in court or from the fact that he has been previously declared to be a vexatious litigant in another jurisdiction.

Relevant legislation concerning application for identity discovery

The remedy of identity discovery is provided for in the rules. UCPR 5.2 of the Uniform Civil Procedure Rules 2005 provides: 5.2 Discovery to ascertain prospective defendant's identity or whereabouts (1) This rule applies if it appears to the court that:

(a) the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person ( the person concerned ) for the purpose of commencing proceedings against the person, and (b) some person other than the applicant (the other person) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.

(2) The court may make either or both of the following orders against the other person:

(a) an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned, (b) an order that the other person must give discovery to the applicant of all documents that are or have been in the other person's possession and that relate to the identity or whereabouts of the person concerned.

(3) A court that makes an order for examination under subrule (2) (a) may also make either or both of the following orders:

(a) an order that the other person must produce to the court on the examination any document or thing that is in the other person's possession and that relates to the identity or whereabouts of the person concerned, (b) an order that the examination be held before a registrar.

(4) An order under this rule with respect to any information, document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation. (5) A person need not comply with the requirements of an order under subrule (2) (a) unless conduct money has been handed or tendered to the person a reasonable time before the date on which attendance is required. (6) If the other person incurs expense or loss in complying with an order under subrule (2) (a), and the expense or loss exceeds the amount paid to the person under subrule (5), the court may order the applicant to pay to that person an amount sufficient to make good the expense or loss. (7) Unless the court orders otherwise, an application for an order under this rule:

(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of information, documents or things in respect of which the order is sought, and (b) must, together with a copy of the supporting affidavit, be served personally on the other person.

(8) An application for an order under this rule is to be made:

(a) if it is made in relation to proceedings in which the applicant is a party, by notice of motion in the proceedings, or (b) in any other case, by summons.

(9) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to claim or cross-claim against a person who is not a party to the proceedings.

I will review the applicable authorities on the issues concerning identity discovery when considering the submissions advanced by the parties on this topic.

Relevant legislation concerning strike out application

The rules provide a remedy for striking out proceedings. UCPR 13.4 of the Uniform Civil Procedure Rules 2005 provides: 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).

Similarly, the rules provide a remedy for striking out the whole or a part of any pleading. UCPR 14.28 of the Uniform Civil Procedure Rules 2005 provides; 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court.

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

Relevant authorities concerning strike out application

The well settled test for determining whether an action ought to be terminated summarily and not be permitted to proceed to a hearing on the merits is to be found in the judgment of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 approving the passage within the dissenting remarks of Dixon J as he then was in Dey v Victorian Railways Commissioner (1949) 78 CLR 62.

In Dey, at page 91, Dixon J reviewed the authorities and expressed the test in the following terms: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

In General Steel, at pages 129 to 130, Barwick CJ confirmed that the jurisdiction to summarily terminate an action is to be sparingly employed and is not to be used except in clear cases. He described the test thus: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

In AAMI v NRMA Insurance Ltd [2002] 124 FLR 518 Conti J referred to the General Steel test as restated in Webster v Lampard (1993) 177 CLR 598 to require a finding that the action ought not be permitted to go to trial in the ordinary way because it was apparent that it must fail. In Webster Mason CJ, Deanne and Dawson JJ said at 602-603: "The power to order summary judgment must be exercised with ' exceptional caution ' and ' should never be exercised unless it is clear that there is no real question to be tried '. Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact."

Consideration of plaintiffs' summons for discovery seeking to identify potential additional parties

For convenience I will first deal with the issues that arise from summons for identity discovery brought by the plaintiffs.

In support of the summons for identity discovery Mr Potkonyak relied upon the matters set out in his affidavit sworn on 16 June 2009. That affidavit provides evidence that Potters House Christian Fellowship Parramatta is currently an incorporated association in NSW. In that affidavit Mr Potkonyak also deposed as to his belief that, at some of the times referred to in his statement of claim, Potters House Christian Fellowship Parramatta did not exist as an independent legal entity but in his belief it may have been incorporated elsewhere. Mr Potkonyak referred to his previously ignored request of the respondent Pastor Walsh for relevant information to be supplied to him.

In support of his request for the relief sought in the summons Mr Potkonyak relied upon the results of ambiguous search results of ASIC records of the registration and de-registration of various entities that included the name Potters House. The search results appear to be dated 27 November 2007. The search results revealed, amongst others, the following entities: (a) The Potters House Christian Fellowship of Australia Incorporated SA A8252. It was listed as an incorporated association. The registration date was listed as unknown. The principal place of business was not stated and no document list was available for this entity;

(b) The Potters House Christian Fellowship of Australia Inc. ARBN 114 120 553. The registration date was listed as 4 May 2005 with the registered office being in Whiteman WA 6068. The documents received by ASIC were listed as a constitution and an application for corporate registration;

(c) The Potters House Christian Church - Parramatta Incorporated NSW INC9887234. Curiously, that search described the registration of an Association of unknown registration date with an unknown principal place of business and without an available document list;

(d) The Potters House bearing NSW registration J6642737 was listed as a deregistered business name;

(e) Potters House Christian Centre Inc bearing registration NT 00973C was listed as a deregistered association of unknown original registration date.

In my view, on the foregoing evidence Mr Potkonyak has established a sufficient climate of uncertainty associated with the status and registration details of the above organisations. Such uncertainties have not been clarified by Pastor Walsh, who has in my opinion, unreasonably ignored Mr Potkonyak's reasonable request for relevant information as to the legal status of Pastor Walsh's Church.

In determining the issues raised by the summons it is also relevant to consider the evidence offered by Pastor Walsh in his resistance of Mr Potkonyak's summons. That evidence was contained in an affidavit sworn by Pastor Walsh on 21 July 2009. Ignoring what in context I consider to be Pastor Walsh's irrelevant reference to Mr Potkonyak having been declared a vexatious litigant in previous and now concluded Family Court proceedings, and putting aside the content of a disputed conversation which is unnecessary to resolve in these interlocutory proceedings, the essence of the affidavit from Pastor Walsh reveals the following matters: (a) Pastor Walsh has been " the Pastor of Potters House Christian Fellowship Parramatta (Church) " since 1990;

(b) Pastor Walsh acknowledged that Mr Potkonyak was a former " member " of " the Church ";

(c) In relation to Mr Potkonyak's children, Pastor Walsh acknowledged Mr Potkonyak's attempts through litigation to seek " protection of the children from the influence of the Potters House ."

(d) Pastor Walsh acknowledged what he described as being Mr Potkonyak's " adversarial stance against the Church since the breakdown of his marriage and subsequent separation and divorce from his former wife. "

(e) Pastor Walsh sought to justify his refusal to provide Mr Potkonyak with the requested information on account of " the adversarial stance he has identified ."

In support of the request for identity discovery Mr Potkonyak relies upon an affidavit sworn by his adult son Jacob Potkonyak on 20 July 2009. That affidavit evidence was in the following terms: "3. Since I was less than one week old until the time I was 13 and a half years of age (December 2001), I was coerced into attending regular meetings at the Potter's House Christian Church in Parramatta. The regular weekly schedule involved 3 weekly church meetings, bible study and outreach groups every alternate fortnight, plus additional week-long conferences and camping trips throughout the year. After the court decision in December 2001 I was still attending at all the meetings of the church albeit every second weekend.

4. The strict religious environment created by my parents', in particular by my mother's, involvement with the church and the isolating social influence thereof made it difficult for me to form friendships with my peers outside the Potters House. The only people I felt I could associate with were fellow church members.

5. The expulsion of my father from the church in 1994 due to what I understand to be doctrinal differences and the subsequent divorce of my parents further added to my building confusion and isolation. At the time the only group I could interact with (members of the church) spent their time trying to convince me my father was evil.

6. Despite separating in 1998, my parents remained living in the same house until 2001. This difficult environment and lengthy court proceedings led to intervention and interviews by DOCS and numerous experts appointed by the court. My eventual decision to move out with my father has led to the effective loss of my childhood friends (in virtue of no longer being a full-time church member) and a permanently strained relationship with my mother.

7. The final break with the church took place while I was in year 12 of the (sic) high school, which led to a poor performance in my HSC exams. After initially losing interest in any further education, and after the loss of my "destiny in God" (after leaving the Potters House), I eventually began recovering and have taken up the study of psychology and philosophy at Macquarie University. My recovery was gradual and I lost in the process equivalent to two and one half semesters of study.

8. My university and work commitments, as well as the emotionally charged nature of the court proceedings, of which I am well aware after my experiences in the Family Court, means that full control of the proceedings on my behalf are given to my father, George Potkonyak, until such a time as I feel comfortable in participating. Not an insignificant factor is the fact that, if the Potters House becomes a defendant, I would be an opponent to the church of which my mother and my sister are still fully committed members."

It appears that it was the activities of the Church and its members as described above that has been a material part of Mr Potkonyak's motivation to seek to identify "the Church and its members" with a view to seeking legal redress from them.

In the light of the foregoing matters it is relevant to further review the basis for the identity discovery sought by Mr Potkonyak. Mr Potkonyak's affidavit sworn on 22 July 2009 annexed a letter dated 13 August 1998 from Pastor Walsh on letterhead entitled "The Potters House Christian Fellowship of Australia Parramatta". That letter was expressed to have been written in response to a letter from Mr Potkonyak that was not identified. The letter in question from Pastor Walsh is reproduced as an Annexure to these reasons for judgment.

Given the content of the letter from Pastor Walsh to which I have referred, and given Mr Potkonyak's concern over the welfare of his children, it seems to me unsurprising that Mr Potkonyak has in the past taken an adversarial stance against the Church and Pastor Walsh. In my view the content and tone of Pastor Walsh's letter seems to me to be contradictory of his stated role as a counsellor. The tone of the letter, which makes reference to an AVO obtained by Mr Potkonyak's former wife, also appears to be inflammatory to the concerns that burdened Mr Potkonyak where he was seeking to pursue a grievance over family matters with someone who had been in the role of counsellor to him and to his family.

The reference in Pastor Walsh's letter to an interim AVO against Mr Potkonyak takes on a far more benign significance when read together with a review of the relevant circumstances as set out in the decision of the Local Court Magistrate on 1 May 2000 which reviewed the bona fides of the circumstances in which that AVO was procured and then later withdrawn.

It emerges from the face of his letter, that for whatever reason, Pastor Walsh chose to cast aside the obligations of confidence arising from the pastoral trust that was invested in him when Mr and Mrs Potkonyak submitted themselves to his pastoral guidance for marital counselling. It is clear from the terms of his letter that he did so by providing a copy of his letter to his Church "Counsel (sic for council) members" notwithstanding that it contained material that was without doubt received by him within the confidential circumstances that would normally be expected of a pastoral relationship. Mr Potkonyak characterises these circumstances as a breach of fiduciary duty.

In support of his quest for identity discovery and also confirmatory of the adversarial role taken by Pastor Walsh towards him, Mr Potkonyak has pointed to a 9 page affidavit of Pastor Walsh sworn on 12 October 1999 which was filed by Mrs Potkonyak in the now concluded family law proceedings. That affidavit was annexed to Mr Potkonyak's affidavit sworn on 22 July 2009. It is clear from Pastor Walsh's 12 October 1999 affidavit that he sought to traverse in some great detail an unidentified affidavit of Mr Potkonyak. Whilst that latter affidavit is not in evidence in these proceedings, it is clear from the content of Pastor Walsh's 9 page affidavit referring to it, that from at least 1994, Pastor Walsh had taken an "adversarial stance" against Mr Potkonyak.

Mr Potkonyak indicated that the purpose of tendering the foregoing affidavit evidence was to demonstrate through the evidence of Pastor Walsh that as at October 1999 "The Potters House Christian Fellowship of Australia at Parramatta (now called 'the Church' - which is attended by the Applicant Wife and her 3 children" had "members", "a Church council" and a practice of "tithing." Mr Potkonyak submits that the relevance of these matters is that they relate to his allegation that "the Church" inappropriately took money from his son who was then a minor. On the evidence tendered, for the purposes of the summons I find that Mr Potkonyak has demonstrated a threshold basis for arguing these matters.

In support of his application for discovery Mr Potkonyak relies upon an extract from a counsellor's report in which video material compiled by Mr Potkonyak about "the sect", which I infer to relate to the Church, was considered, albeit inconclusively, to be "suggestive of attitudes and practices which are extremely disturbing". In the context of these proceedings, as a threshold issue, I have to have regard to the fact that such material is in existence and if it is given full force and effect at a hearing on the merits of the claim, it could have some bearing upon the damages claims that Mr Potkonyak seeks to pursue.

In connection with the proposed claim at least against Pastor Walsh, I therefore find that Mr Potkonyak has pointed to a climate of evidence that, if accepted, could be supportive of aspects of the damages claim he seeks to make. There are of course a number of legal hurdles to be overcome, including a limitation hurdle, to enable the potential arguments to succeed at a final hearing on the merits. Except for a consideration of the limitation issue to which I will return, I am not required to deal with all of these matters on this interlocutory hearing.

I find that Mr Potkonyak has demonstrated a threshold argument that over time, there has been some ambiguity in the description and naming of the Church and that its legal status has remained unclear. I also find that at all relevant times Pastor Walsh is and has been in a position to shed light on such facts and ambiguities. In my view Mr Potkonyak has established that Pastor Walsh is and has been in a position to identify the relevant persons and/or entities that constituted "the Church" at the relevant times over which Mr Potkonyak had grievances against the Church, its membership and Pastor Walsh against whom he wishes to litigate. I find that Pastor Walsh has unreasonably refused to provide Mr Potkonyak with the necessary information he seeks in order to identify parties he considers may be liable through the legal remedies that might be or might have been available to himself and his children arising from such grievances.

Having determined that a threshold case has been made out, notwithstanding the above findings, it becomes necessary to review the submissions made by Mr Dawson, counsel who appeared for Pastor Walsh, in resistance to the orders sought in the summons.

The essence of those submissions can be restated as follows.

Accepting for the purposes of argument that Mr Potkonyak blames the Church for the deterioration in his marriage and subsequent events, he has already identified Pastor Walsh as a proposed defendant and therefore it is submitted that the orders for identity discovery of other possible defendants as sought against Pastor Walsh are not necessary. In this regard it was submitted that Pastor Walsh was a sufficient proposed defendant and the making of further orders was therefore not necessary. It was also submitted that the evidence discloses Pastor Walsh to be the apparent point of contact with Mr and Mrs Potkonyak and the other plaintiffs so that a quest for the names of members of the Church or the Church council would be unnecessary. I consider that submission to have some merit but this is not necessarily a full answer.

However, this still leaves the question of the legal status of the Church. I consider that in the ordinary course, absent ulterior purposes and provided there is a utility for making an order to this effect, Mr Potkonyak would be entitled to know such details and to have them provided to him by Pastor Walsh. However, in this regard it is significant to note that Mr Potkonyak has not sought to either cross-examine Pastor Walsh nor has he sought to have Pastor Walsh examined under oath as provided by UCPR r 5.2(a) which enables such a course to be pursued. Further, the order which seeks a statutory declaration from Pastor Walsh is misdirected as there is no power within UCPR 5.2 for such an order to be made and in effect, what is sought is an interrogatory, which is the incorrect procedure. No application was made to treat this as an irregularity pursuant to s 63 of the Civil Procedure Act 2005.

The respondent submits that in any event, an order for identity discovery should not be made on account of a number of compelling reasons which outweigh any threshold case that might have been made out by Mr Potkonyak for the making of orders of the kind he seeks from Pastor Walsh.

Without undertaking an exhaustive analysis, those reasons include the circumstance that no prima facie case has been made out against Pastor Walsh; any allegations levelled at Pastor Walsh are not necessarily able to be made against the Church; Mr Potkonyak's affidavit does not provide sufficient evidence of an intention to bring proceedings which suggests that the remedy is being pursued to ascertain the details of the membership of the Church for an ulterior purpose and in any event, Pastor Walsh would not be liable for actions he took as a witness in the family law proceedings.

In addition, the respondent points to the fact that the contemplated litigation against Pastor Walsh and possibly the Church and its members, relates to events that are alleged to have occurred in 1994 when Mr Potkonyak was expelled from the Church and 1998 when Mr and Mrs Potkonyak separated. To that extent any such litigation is plainly statute barred so that no remedy is available to the plaintiffs in respect of such matters and the making of any orders for identity discovery would therefore be futile. I consider that submission to have some considerable force.

However, in answer to the respondent's submissions, and in addition to the requests made of Pastor Walsh on 9 April 1994 and 1 February 1998 for disclosure of matters relating to the identity of potential defendants, Mr Potkonyak points to a further request for information he made of Pastor Walsh on 3 April 2009. In answer to that submission the respondent submits that no material has been put forward to show that this might have given rise to a fresh cause of action on that date so as to justify the making of the orders sought. I accept the inherent reasonableness of that submission and the consequential submission that the making of the orders sought would be futile. Insofar as the position of Daniel Potkonyak is different in that he is still a minor, which could give rise to different limitation consideration, relevant to the exercise of discretion concerning the relief sought, no evidence has been put forward to demonstrate a potential claim by Daniel Potkonyak that would overcome the obvious hurdles of the Civil Liability Act, 2002.

It is necessary to consider some additional matters.

The respondent has also pointed to the fact that Mr Potkonyak has held his grievances against Pastor Walsh and the Church for some considerable time and for whatever reason, absent evidence of legal incapacity, there has been much delay in pursuing the contemplated litigation which has not yet been commenced. The result is that the leave of the court would be required to overcome what I consider to be, on the evidence before me, insurmountable limitation obstacles.

It is necessary to return to the respondent's submission that the orders for discovery should not be made because Mr Potkonyak already knows the identity of the defendant he wishes to pursue, namely Pastor Walsh. That submission has some support in authority.

In John Fairfax & Sons Ltd & Anor v Cojuangco [1987] 8 NSWLR 145 Mahoney JA at 150F-G confirmed that such an order is not necessary where a plaintiff has an effective cause of action against persons other than the person whose identity is in question. On appeal to the High Court that statement was not questioned : John Fairfax & Sons Ltd & Anor v Cojuangco [1988] HCA 54; (1988) 165CLR 346. In that case the defendants argued that there was an effective cause of action against them and that if the action succeeded, any judgment would be met.

In this case the respondent has not introduced evidence on that aspect and I must consider the applicability of the considerations in Cojuangco, which were based on Part 3 of the Supreme Court Rules 1970 as they applied in 1987, to the present application. In this regard I consider the authority of Cojuangco may be distinguishable because in that case there was the positive indication that any judgment would be met, whereas in this case, from the viewpoint of recovery of damages, Mr Potkonyak is entitled to entertain some disquiet over the prospect of a church pastor alone being found liable without others to share his liability or being able to meet a potential judgment where others may also be liable. In my view Cojuangco may also be distinguishable because it applied to the particular consideration of the sufficiency of joinder of a newspaper defendant as the publisher of allegedly defamatory material in defamation proceedings, in that case thus rendering it unnecessary for the plaintiff to pursue the joinder of the person who was the source for publication by the newspaper : John Fairfax & Sons Ltd & Anor v Cojuangco [1988] HCA 54; (1988) 165CLR 346 at p 357. Although it is not necessary for me to distinguish the decision in Cojuangco in this instance it is significant to observe that decision does not state that the existence of alternative defendants precludes the making of an order for identity discovery.

In RTA of NSW v Australian National Car Parks Pty Ltd [2007] NSWCA 114 UCPR r 5.2 was considered, as was the decision in Cojuangco. In the RTA case, Mason P at [11] - [15] identified the need to engage the conditions of UCPR r 5.2. Relevantly these conditions are: "[11] The application must be made on notice to the person perceived to have the information (r5.2(7)(b)) and be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of information, documents or things in respect of which the order is sought (r5.2(7)(a)).

[12] Rule 5.2(1)(a) implies that the applicant intends to sue the person whose identity is sought. Demonstration of such intention is obviously pertinent to a favourable exercise of the discretion to order preliminary discovery ( Re Application of Cojuangco (1986) 4 NSWLR 513 at 521). This does not mean that such intention must be immutably fixed or unqualified.

[13] The rule's predecessor in the Supreme Court was amended in 1974 to eliminate a requirement that the applicant establish a prima facie case against the intended defendant, but that issue is relevant to the exercise of discretion ( Stewart at 139-40; Levis v McDonald (1997) 75 FCR 36 at 41).

[14] Rule 5.2(1) effectively states two threshold requirements. First, the applicant must be unable sufficiently to ascertain the identity or whereabouts of the intended defendant despite having made reasonable inquiries. What is reasonable is a question of fact in all the circumstances. The availability of other means of ascertainment (eg resort to the FOI Act) does not in itself make it unreasonable to claim an alternative remedy under the rule (see Hughes Aircraft Systems International v Civil Aviation Authority (1995) 217 ALR 303 at 307). The cost, delay and uncertainty of alternative measures is relevant to the rule's "reasonable inquiries" component.

[15] Secondly, the applicant must show that the respondent to the application "may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts" of the prospective defendant. "Identity or whereabouts" is given an extended definition in r5.1 to include: the name and (as applicable) the place of residence, registered office, place of business or other whereabouts, and the occupation and sex, of the person against whom the applicant desires to bring proceedings, and also whether that person is an individual or a corporation. "

As to the first issue of whether or not Mr Potkonyak has made "reasonable inquiries", I consider that by his correspondence with Pastor Walsh and the ASIC searches, he has demonstrated that he has carried out "reasonable inquiries" that have resulted in an inability to identify the legal status of the Church and its members. Further, I consider that Mr Potkonyak has, by issuing the summons, sufficiently signalled an intention that he wishes to sue.

As to whether the other plaintiffs have an intention to sue, attention is drawn to the affidavit of Jacob Potkonyak in which he stated: "2. Even though I am over the age of 18 now, I do not appear as a plaintiff in my own right but have rather given authority to my father, George Potkonyak, to act in my behalf until such time, if ever, when I feel comfortable to take part in the action, for the reasons that follow."

In the light of the commentary made by Mason P in the RTA case at [12] as already cited, I do not regard the quoted portion from the affidavit of Jacob Potkonyak to be of significance.

As to the second issue of whether or not Mr Potkonyak has demonstrated that Pastor Walsh may have information in his possession that would identify individual members of the Church and the legal status of the Church, I consider that the evidence of Pastor Walsh permits the inference that these matters have been demonstrated and that Pastor Walsh is in a position to provide the information sought by Mr Potkonyak.

It is important to bear in mind the objectives of UCPR r 5.2 and its predecessor. In Stewart & Anor v Miller & Anor [1979] 2 NSWLR 128, in dealing with SCR Part 3 which preceded UCPR r 5.2 Sheppard J referred to the objects of the rule as was stated by Master Allen in the unreported decision in Exley v Wyong Shire Council, unreported, 9 December 1996. The relevant passage is as follows:

"… "The objective (of Pt. 3) was to overcome the manifest injustice which could occur that a person who had suffered a legal wrong committed by another might be without redress because he did not know the name of the wrongdoer or otherwise have such a description of his identity as would enable him to be sued. In such a case it was only just that the person so wronged should be enabled to obtain the wrongdoer's name (or other appropriate identification) from a person who had that knowledge. Preliminary discovery is a valuable aid to justice. But its objective would be perverted if it were to be permitted to be turned into an instrument of oppression. In my opinion it would be turned into an instrument of oppression if it became a procedure in aid of speculative claims. It is one thing to require the name of a wrongdoer to be disclosed to the person wronged. It is a very different thing to require his name to be disclosed so that someone supposing himself to have a grievance against him may commence merely speculative proceedings against him. This does not mean that an applicant for preliminary discovery will never be granted that relief unless he establishes that he has a prima facie case against the person whose name he wishes to ascertain. The evidence, although falling short of establishing all the ingredients of a prima facie case, may point sufficiently to the existence of a case for relief as to make it proper, in the interests of justice, that preliminary discovery be ordered so that proceedings for that relief can be brought. Each case must be considered on its own merits." "

Since the advent of UCPR r 5.2 it is no longer necessary to demonstrate the existence of a prima facie case. However, the existence of a prima facie case is a matter that is relevant to the exercise of discretion for making an order under r 5.2.

The respondent submits that the absence of the identification of a viable case against Pastor Walsh or the Church, the long delay since at least 1998 in seeking to commence proceedings, the improbability of the plaintiffs obtaining leave to bring proceedings out of time and the fact that Mr Potkonyak has unsuccessfully tried to litigate the subject matter of his grievances on appeal in the Family Court and at first instance in this court are all factors that should be viewed as an overwhelming counter-balance to the exercise of discretion in favour of granting the discovery sought.

In this regard he points to the fact that the prayers for relief in paragraphs 9 - 12 of Part C of the statement of claim being out of time. He points to the futility of the proposed claims in paragraph 13 of Part C of the statement of claim involving the claim against a witness who gave evidence in earlier proceedings. He also points to the relatively trivial nature of the alleged debt claim in paragraph 14 of Part C of the statement of claim. He submits that those matters contraindicate the exercise of discretion in making an order for identity discovery.

I also have to consider the submission that delay on the part of the plaintiffs in pursuing the proposed litigation including the delay in seeking identity discovery, together with insurmountable limitation obstacles, outweigh any arguments in favour of the exercise of discretion to make the orders sought. The fact is that Mr Potkonyak has known of Pastor Walsh and his Church since 1990. He has held a grievance about Pastor Walsh since at least 1994 and despite the time that has passed since, he has never sought to litigate a case against him or against his Church until now. This is so notwithstanding that he has sought to litigate against the witness Dr Powell in proceedings he filed in 2006 concerning essentially the same subject matter : Potkonyak v Powell [2007] NSWDC 282.

I accept the foregoing submissions made on behalf of the respondent. In my view, for the foregoing reasons, the plaintiffs' summons must fail. The result may have been different if the plaintiffs had sought to pursue discovery before action at an earlier point in time, however, the evidence does not permit me to express a concluded view on this issue and the availability of such a remedy in the past is not a matter calling for decision in the matters calling for decision in the summons.

Consideration of the notice of motion for strike out brought by the defendant

In order to consider the defendant's strike out application it is necessary to analyse the principal claim the plaintiffs seek to mount against the Commonwealth of Australia. That claim relates to matters arising out of three trials and two appeals that Mr Potkonyak has litigated in the Family Court. In relation to the Family Court proceedings generally the plaintiffs plead a duty of care to provide for the conduct of litigation in the Family court within a secure framework free from unlawful interference. The statement of claim alleges a relationship of proximity for foreseeable harm to occur in the event of a breach of the duty of care owed. The statement of claim goes on to allege numerous breaches of the duty of care owed in connection with the training and supervision of staff within the Sydney registry of the Family Court.

Allegations in the statement of claim concerning the first trial in the Family Court

In relation to the first trial in the Family Court the statement of claim goes on to raise a series of allegations of misfeasance including on the part of the Associate of a trial judge in receiving an affidavit for filing by email, the delivery to a trial judge of an altered version of a court counsellor's report, an altered version of an attachment to an affidavit by Mr Potkonyak an altered version of family law orders made in the Local Court and the withholding from a trial judge of a Local Court Magistrate's relevant reasons for judgment in which favourable comments were made concerning Mr Potkonyak. The statement of claim raises further allegations levelled at court staff concerning the alleged tampering with evidence and the alleged fabrication of evidence thereby leading to a process of unlawfully influencing a trial judge's determination of the proceedings before him.

Allegations in the statement of claim concerning the second trial in the Family Court

In connection with the second trial in the Family Court the statement of claim raises allegations that the proceedings were tainted by unknown persons who acted to alter orders made by a registrar having the effect of adding an order not actually made. Further allegations are raised concerning a judge's Associate allegedly communicating draft orders to Mr Potkonyak's wife before such orders were actually made and an allegation that such orders were tampered with prior to being released. A further allegation is made concerning the alleged withholding from Mr Potkonyak of the reasons for judgment in connection with the second trial for a period of over 2 years.

Allegations in the statement of claim concerning the third trial in the Family Court

In connection with the third trial in the Family Court, the statement of claim alleges that material evidence was disposed of by a judge's Associate with the result that the first plaintiff was unable to tender that evidence at the third trial in the Family Court

Allegations in the statement of claim concerning the appeals in the Family Court

The fourth matter raised by the statement of claim concerns the allegations that court orders were tampered with in connection with two appeals to the Full Court of the Family Court as well as an assertion that an unwarranted delay occurring in the appeal process caused by a failure to inform the Court that the appeal could progress following the issuing of a notice to that effect by the Attorney-General.

Submissions of the parties on the strike out motion

The Commonwealth has submitted that the foregoing serious allegations have been raised by the plaintiffs without supporting evidence notwithstanding that the statement of claim has been verified. The Commonwealth further submits that the allegations raised are scandalous and amount to nothing more than mere speculation such that they warrant that the statement of claim be struck out and that the proceedings should be dismissed. Mr Potkonyak resists the defendant's application and argues that the claim should not be summarily dismissed. He claims the statement of claim raises justiciable issues and should be permitted to proceed.

Consideration and resolution of the issues concerning the strike out application

The fact that allegations of a speculative nature are made does not necessarily mean that the pleadings by which such allegations are raised should be struck out. This is so because in litigation there is often debate as to whether facts calling for decision are on analysis ultimately seen to be speculative. In each case it always remains a matter for analysis to determine whether such facts are proven according to the required standard of proof or whether they remain as allegations that do not rise above mere speculation : Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Luxton v Vines [1952] HCA 19; (1952) CLR 352.

On the strike out motion I do not consider it to be an appropriate course to order the striking out of a pleading based only upon the consideration that the facts alleged in the proceedings are speculative in nature. This is so because courts are frequently required to resolve issues that involve speculation to varying degrees : see for example Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. In my view, in the context of this interlocutory consideration of the issues, the speculative nature of the facts relied upon by the plaintiffs to base a claim for damages can only truly be determined after a hearing on the merits. It is therefore necessary to consider whether other grounds exist for the making of the orders sought by the defendant.

I therefore turn to deal with the remainder of the defendant's submissions to the effect that the allegations raised are scandalous in nature and seek to impugn the previous decision of a Court by collateral means.

The starting point for this part of the analysis is the public policy consideration that at some point litigation must be regarded to be at an end. Associated with this is the further consideration of immunity of courts and judges. In Rajski v Powell & Anor [1987] 11 NSWLR 522 at 527G to 528A Kirby P described the policy of judicial immunity in the following terms: "… It is a fundamental principle of our law that a judge of a superior court is immune from civil liability for acts done in the exercise of his judicial function or capacity. Such immunity rests, as it has been said, upon considerations of public policy. Its object is not to protect judges as individuals but to protect the interests of society. The purpose of the rule is to preserve the integrity, independence and resolve of the judiciary and to ensure that justice may be administered by such judges in the courts, independently and on the basis of their unbiased opinion - not influenced by any apprehension of personal consequences."

On behalf of the defendant Mr Kathner submitted that the immunities that are afforded to judicial officers, by analogy should extend to registrars performing judicial functions : Scanlon v Director-General, Department of the Arts, Sport and Recreation [2007] NSWCA 204. In that regard, it was submitted that the orders of the registrar of the Family Court, which Mr Potkonyak seeks to impugn, are not actionable. Although Scanlon involved the consideration of Part 8A Judicial Officers Act 1986 (NSW) the defendant submitted that by analogy, judicial immunity for civil proceedings applies to non-judicial officers who have been invested to perform judicial functions : Scanlon, per Tobias JA at page 22 [76].

Mr Kathner also pointed to the remarks by Hope JA in Yeldam v Rajski [1989] 18 NSWLR 48 at p 69 cited with approval by Gleeson CJ in Fingleton v The Queen [2005] HCA 34 at [40]; (2005) 227 CLR 166 at pp 186-187, namely:

"The basis of the immunity of judges from civil proceedings in respect of their judicial acts, which has been part of the law for centuries, is based on high policy which has been put in a number of ways but in essence is that the immunity is essential to the independence of judges. It is a policy designed to protect the citizen and not merely to give protection to judges. As it seems to me this policy is as equally applicable to criminal proceedings for the acts of judges, in the exercise of their judicial functions, as it is in respect of civil proceedings. … If the law were that any disgruntled litigant could charge a judge with contempt for being wrong and mala fide in his conclusion, or in arriving at the conclusion without any or any sufficient evidentiary basis, the independence required of judges would be greatly eroded."

When the content of the statement of claim is examined concerning the claim sought to be made against the Commonwealth, notwithstanding Mr Potkonyak's moderately expressed presentation of argument to the contrary, without evidence, the scandalous and meritless nature of the allegations relied upon by the plaintiffs becomes immediately apparent as a collateral attack upon the decisions of the Family Court. It is pertinent to note the framework and content of the four pivotal sections of the statement of claim summarised in (a) to (d) below, namely: (a) In connection with the first trial in the Family Court between July 2000 and January 2001: (i) A trial judge was presented with an altered version of a court counsellor's report : statement of claim, Part A[1] particular (b);

(ii) A trial judge was presented with an altered attachment to Mr Potkonyak's affidavit, such attachment concerning the sexual abuse of males. The assertion is that the trial judge relied upon such information : statement of claim, Part A[1] particular (c);

(iii) A trial judge was presented with an altered version of the relevant orders of the Local Court which were dated 1 May 2000 which assert that relevant reasons for judgment by the Local Court Magistrate were withheld from the trial judge : statement of claim, Part A[1] particulars (d) and (e);

(iv) Persons assisting the trial judge selectively summarised, unlawfully tampered with or fabricated evidence with the result that the trial judge was led to an erroneous interpretation of the evidence : statement of claim, Part A[1] particulars (f), (g) and (h). (b) In connection with the second trial in the Family Court between August to December 2001: (i) Interim orders made by the registrar were allegedly not made as recorded : statement of claim, Part A[2] particular (a);

(ii) The alleged tampering with consent orders : statement of claim, Part A[2] particular (b) and (c); (iii) The alleged withholding from the plaintiff of the reasons for judgment by the trial judge : statement of claim, Part A[2] particular (d); (c) In connection with the third trial in the Family Court between October 2002 and March 2003 Part A[3] particular (a) of the statement of claim asserts: (i) " In the course of the proceedings the first plaintiff tendered or attempted to tender critical evidence (medical records, including original medical records negligently or deliberately withheld by the possible third defendant in the earlier proceedings), I interpolate this to be Dr Powell which subsequently were disposed off (sic for of) by a person or persons unknown, most likely the trial judge's associate (name unknown) ";

(ii) where the reference to the possible third defendant is a reference to Dr Powell. (d) In connection with two appeals to the Full Court of the Family Court, in July 2005 and July 2006, interim orders made by a Judge were tampered with, some unknown person communicated unauthorised material to the solicitor for Mr Potkonyak's former wife and some unknown person unwarrantedly interfered with the appeal process by not informing the court that the Attorney-General had issued a notice to permit the appeal process to resume. Presumably this latter issue was connected with Mr Potkonyak's earlier declared status of vexatious litigant : statement of claim, Part A[4] particulars (a), (b) and (c).

In his submissions Mr Kathner took the time to trace the broad similarities between the allegations set out in the statement of claim as I have summarised them above and the unsuccessful attack Mr Potkonyak attempted to make on the result obtained in the Family Court proceedings : Potkonyak v Lenda [2006] FamCA 947. When that exercise is followed through the correctness of Mr Kathner's submission became immediately self-evident.

In submitting that the course sought by the plaintiffs was not permitted, Mr Kathner referred to Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130 where Rich ACJ stated the principle thus at p 139: "A proceeding of this kind is an attempt to re-examine the merits of a judgment in a collateral suit between the same parties. Reasons of public policy and uniform authority forbid the attacking and impeachment of a judgment in this way. The plaintiff's only remedy is an equitable proceeding to set aside the judgment, or a petition for a new trial under the statute. An action by the defeated party cannot, for equally good reasons, be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re-examined by a trial of the witness' testimony in a suit against him. The procedure, if permitted, would encourage and multiply vexatious suits, and lead to interminable litigation."

Mr Kathner drew attention to the fact that in Potkonyak v Powell [2007] NSWDC 282 Nielson DCJ ordered that Mr Potkonyak's earlier proceedings be dismissed on the foregoing principles. Notwithstanding such dismissal, in his statement of claim Mr Potkonyak still refers to Dr Powell as a possible third defendant. In these proceedings it is clear that what the plaintiffs seek here is to controvert or impugn the outcome of the previous litigation in the Family Court as was attempted and rejected in the previous litigation in this court in Potkonyak v Powell [2007] NSWDC 282.

When the allegations in the statement of claim which are levelled at the defendant in connection with the first and second trials in the Family Court are reviewed, it is immediately apparent that, without evidence, the suggestion is made that a court would determine proceedings on the basis of material the parties had not had the opportunity to consider or make submissions upon, is inherently scandalous and without arguable merit. So too is the suggestion that court orders were allegedly tampered with. In both instances these are matters over which a court has inherent powers to control its own processes. In the former instance cited, this is by way of appeal and in the second instance, this is by way of administrative correction.

Similarly, when the allegations made in connection with the third trial in the Family Court are examined, it is also clear that a court has the inherent power to deal with such matters when attention is drawn to them either administratively or in connection with an appeal.

The amenability of these matters to be dealt with by the Family Court in connection with each of the three trials in that court is plain from the allegation made in the statement of claim that the relevant events are said to have occurred "just before, during or after the proceedings but before the delivery of judgment".

When the allegations made concerning the appeals are examined, it is clear that the alleged tampering with orders is a matter which, if shown to have occurred, are also matters capable of being remedied within the administrative procedures of the Family Court. Insofar as there was alleged delay in informing the court of Mr Potkonyak's entitlement to proceed with his appeals, plainly, that was a matter which lay in his own hands, the presumption being that whenever necessary, a party seeking to ventilate administrative issues before a court is entitled to invoke the administrative and judicial processes of the court to ensure that relevant matters are communicated to the court in an appropriate way.

In my view it is immediately plain that the foregoing allegations relied upon by the plaintiffs as set out in the statement of claim are without arguable merit. Insofar as it is necessary to consider that there may be truth in the allegations raised, it is important to recognise that any right to rectification of such matters was within the province of the Family Court where all of Mr Potkonyak's rights were exhaustively concluded. If the allegations had substance they were matters that were amenable to correction in that Court. When this fact is considered it become immediately plain that what Mr Potkonyak seeks to do in these proceedings is to mount a collateral attack on the decisions of the Family Court that have already been conclusively determined on appeal in that court.

Further, when the nature of the damages claimed by Mr Potkonyak is considered, it is at once clear that they are remote and fanciful. The claims include alleged direct financial losses as a result of alleged unduly unfavourable costs orders, alleged indirect financial losses due to unemployment and the undertaking of legal studies and alleged "mental shock" following Mr Potkonyak's perception that the processes of the Family Court were allegedly unlawfully interfered with. When the allegations of damage relied upon by the second and third plaintiffs are examined it is apparent these relate to emotional issues precipitated by the Family Law proceedings and alleged impairment in earning capacity all of which are too remote to sound in damages. Further, and in any event, such claims would be filtered out by the restrictive provisions of the Civil Liability Act 2002 which were legislatively designed to stop small claims such as these from proceeding.

The statement of claim also seeks declaratory relief in respect of possible future harm that the second and third plaintiffs may encounter as well as seeking declaratory relief on behalf of his daughter, the "possible fourth plaintiff" because she is allegedly prevented by the alleged theological influence and authority of Pastor Walsh from bringing her own claim. At a glance it is plain that such claims are without arguable merit and the declaratory relief sought by the plaintiffs is beyond the power of the Court.

Furthermore, as Mr Kathner correctly points out, when the allegations in the statement of claim that are raised against "the administrative arm" of the Family Court are compared to the matters ventilated in Mr Potkonyak's litigation Potkonyak v Lenda [2006] FamCA 947, the matters concerning the first, second and third trials in the Family Court were all sought to be ventilated and given appropriate judicial consideration in that case. That comparison shows that the submitted position of the Commonwealth concerning these current proceedings is correct, namely that Mr Potkonyak's pursuit of them amounts to a collateral attack on the decision of the Family Court and this should not be permitted : Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130.

On the foregoing analysis, in this case I consider that the plaintiffs' statement of claim does not admit of reasonable argument and is bound to fail if permitted to go forward. This is apparent at first glance and further confirmed on close analysis. The plaintiffs' claims involve a defect of pleading that could not be improved by amendment : General Steel Industries Inc v Commissioner for Railways NSW & Ors [1964] HCA 69; (1964) 112 CLR 125. Further, in this regard Mr Kathner submits that radical surgery would not rehabilitate the defective statement of claim in this case and he further submits that in any event any such surgery should not be permitted. In support of that position Mr Kathner aptly draws attention to relevant remarks by Kirby P in Rajski v Powell & Anor [1987] 11 NSWLR 522 at p 525B, namely: "Courts must remain neutral. They may not become involved in unfair assistance to one party. Nor should they lend their aid to pleading which is so defective that major surgery would be required to rehabilitate it."

Before arriving at my conclusions as stated above I gave careful consideration to Mr Potkonyak's submissions. In seeking to answer the arguments put forward by the defendant Mr Potkonyak has argued that he does not seek to make a collateral attack on the result of the family law litigation in that the claim is made against the "administrative arm" of the Family Court. In my view that is no answer to the defendant's submissions because the Family Court had power and jurisdiction to deal with the matters of which he complains and has declined to do so which is the end of the matter. In my view this circumstance confirms that what the plaintiffs seek to do in the proceedings is to mount an impermissible collateral attack on the decisions of the Family Court. The allegations raise no real or justiciable issue to be tried. This makes the proceedings untenable. They lack arguable merit and in my view the claim ought not be permitted to proceed : General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

In seeking to defend his pleading from being struck out Mr Potkonyak has cited remarks by Brennan J in Church of Scientology v Woodward [1982] HCA 78; (1982) 154 CLR 25. In that case, at p 78, [22] Brennan J commented that an allegation in the statement of claim that the organisation in question had acted outside its statutory powers. Brennan J said that the fact of such an allegation made it justiciable: "… That allegation is made; it is justiciable; it is within the original jurisdiction of the Court. The pleading cannot be struck out. It may be the plaintiffs will fail for want of admissible evidence, but that is not the matter for present consideration, nor does it appear from the pleading."

Putting to one side the fact that Brennan J delivered a dissenting judgment in that case, the position in Church of Scientology is significantly different to the present case because there the pleaded allegation related to whether the impugned activities of ASIO that were under consideration fell within the powers available to that organisation under its specified enabling legislation. Here, in contrast, the statement of claim makes allegations that are, on the face of the document, untenable.

Notwithstanding Mr Potkonyak's arguments to the contrary I consider that the statement of claim in these proceedings is revealed to be frivolous and vexatious, disclosing of no reasonable cause of action and not amenable to remediation. In the sense that it contains scandalous assertions against court staff where such allegations have already been appropriately considered and dealt with by the Family Court, I consider that such allegations have a tendency to amount to an embarrassment to the judicial process. I therefore consider that the allegations in the statement of claim amount to an abuse of the process of the court.

Recognising that the procedural step of summary dismissal must be exercised with exceptional caution and only where it is clear that there is no real question to be tried, I consider this to be such a case. It necessarily follows that the statement of claim must be struck out pursuant to UCPR r 14.28. I also consider that this also warrants that the proceedings should be dismissed pursuant to UCPR r 13.4.

Notwithstanding that a measure of sympathy arises in connection with Mr Potkonyak's situation and the concerns he has over the roles of Pastor Walsh and the Church as these roles may have affected him and his family, sympathy is not the required legal test for determining whether or not he is entitled to the relief sought. Applying the requisite legal test, I have concluded that the position of the plaintiffs in the litigation against the defendant in the principal proceedings is without merit and cannot be supported by reasonable argument. In my view the claims sought to be made by the plaintiffs do not raise a justiciable issue. This is therefore an abuse of process of the court. This requires that the statement of claim should be struck out and the proceedings dismissed. I have also found that the summons brought by the plaintiffs which seeks to identify potential additional parties to be joined to the proceedings cannot succeed.

Mr Potkonyak's pursuit of identity discovery against Pastor Walsh has directly arisen from the refusal of Pastor Walsh to appropriately answer correspondence that was reasonably addressed to him seeking relevant information. In my view Pastor Walsh's refusal to supply Mr Potkonyak with the information he sought lacked reasonable foundation in the good faith that would reasonably be expected from a person with whom he had been in a pastoral relationship. Mr Potkonyak's requests for such information were reasonable requests at the time he made them. These requests were met with refusal. In these circumstances, notwithstanding that the plaintiffs have failed to obtain discovery, I consider that it is appropriate to depart from the usual order. I consider that Pastor Walsh should bear the costs of the summons.

Consequent upon the striking out of the statement of claim and the dismissal of the proceedings I see no reason for departing from the usual order of costs following the event which means that Mr Potkonyak should otherwise bear the cost of the notice of motion and also of the dismissed proceedings except in relation to the summons.

In respect of the summons filed by the plaintiff on 16 June 2009 seeking discovery I make the following orders: (a) The summons is dismissed;

(b) The respondent is to pay the costs of the plaintiffs to the summons.

In respect of the notice of motion filed by the defendant on 6 July 2009 I make the following orders: (a) The statement of claim filed by the plaintiffs is struck out pursuant to UCPR 14.28 of the Uniform Civil Procedure Rules 2005;

(b) The proceedings are dismissed pursuant to UCPR 13.4 of the Uniform Civil Procedure Rules 2005;

(c) Plaintiffs to pay the defendant's costs of the notice of motion and the proceedings generally except in relation to the costs of the summons filed on 16 June 2009.

I order the documents marked for identification in the proceedings remain with the court papers pending any further order of this court or any superior court.

Letter dated 13 August 1998 from Pastor Walsh to Mr Potkonyak ( omitting formal parts, addresses, telephone numbers, facsimile numbers and email addresses )

The Potter's House CHRISTIAN FELLOWSHIP OF AUSTRALIA PARRAMATTA

I have just received your letter. While I am not confident that you will be interested in including the following pieces of truth into your letter to the churches, I feel that you need to be aware of the truth as it is. Unfortunately, I don't have time to answer every falsehood.

With regards to my not wanting to help resolve your strained relationship with Renata, from almost the day that I arrived in Sydney over 8 years ago, I have been involved in counselling you and your wife on numerous occasions. In literally every one of those sessions, two things should have been apparent to you. One, it was literally always you who had somehow brought the relationship to the brink of disaster with your suspicious, callous, dominating, harassing manipulation of your wife and children by both words and deeds This had on occasion resulted in actual violence. I do not remember any occasion when you admitted fault of any kind. On the contrary, you always responded with even more bizarre accusations against Renata. Second, I always counselled your wife to stay with you and try and work it out, counsel I still hold to. Any claims to the contrary are false. Your recent flippant, off-handed 'Of course I'm sorry' to Renata has obviously not worked the magic you thought it would after 11 years of hell for her.

As far as your children being 'indoctrinated' in my church, the Sunday School program is called Gospel Light and is distributed by Koorong Books in Ryde, the largest Christian book distributor in Australia. 80% of their Sunday School trade is in Gospel Light materials. If your kids have been lead astray, then so have 80% of Christian kids in Australia!

When you were 'expelled' from the church four years ago, your memory needs a little help. On your request, you brought your theory on tithing before our church counsel with friends of your own choosing. None of the men gathered (five in all), nor the authors of over 12 Old Testament Commentaries that I had researched for the occasion, agreed with your interpretation of Scripture. These included Dr Walvoord from Dallas Seminary's Commentary on Deuteronomy, The Pulpit Commentary, The Expositor's Bible Commentary, The New International Bible Commentary, The Bible Speaks Today, The Communicator's Commentary amongst others. We went through your paper point by point exposing obvious errors and blatant inaccuracies, none of which you were willing to accept. This was not surprising to me, as I pointed out that in all the time I had known you, you had never once changed your mind even when confronted with flagrant error.

However, I said before those gathered that you were more than welcome to stay in our church, with your wife and family, as long as you didn't propagate your booklet. Based upon the bulk of evidence, the booklet would have thus contained false doctrine, as well as a fairly overt attack on much of what the Bible says we ought to do as a church. You went with the booklet and thus out of the church. I said that if you wanted to change your mind on the booklet, you would be welcome back into the church. So far, you haven't changed your mind. Your wife was informed that she was free to stay in our church or go with you, it was up to her. She has chosen to stay.

In the meantime, your wife was forced to take out an AVO against you several months ago. Knowing what she has gallantly put up with over the years, I can only wonder and weep at what you must have done to drive her to that course of action. When you called and asked to come back to church, only after the AVO and never before, I said that I didn't think that it would be wise for me to allow you to come to church with your wife while the AVO was in place. I said that any 'talk' we might have been able to have would have to wait until the courts had decided your fate. I said that I didn't want to jeopardise or hinder the court process, something that you said I should pay no attention to. And of course there is the little matter of your booklet. And would you mind explaining exactly why you want to come to our church? Is it possible that it would be just another way of hurting and embarrassing your wife and family?

In closing, your energies would be better spent taking care of business on the home front and not in font (sic) of your computer screen. The time and money you have spent on dozens of harassing and threatening phone calls to me in recent weeks could likewise be put to better use trying to reconcile your wife and family. I feel, however, that you have given up on healing and now just want to go on hurting. If your threat to make public your false accusations about your wife's church and me is the result of your prayerful consideration and concern for your family, I can only suggest that your relationship with God is in need of repair. (1 Peter 5:6) "Humble yourselves, therefore, under God's mighty hand, that he may lift you up in due time."

As I began, you wanted my opinion on the reality of your opinions, so please fell (sic) free to include these changes in your letter and if you want to talk further after the court case, call me then.

I have forwarded a copy of this letter to the Counsel members of our church and one to Renata to use, if needs be, in the upcoming court case.

Robert J Walsh (Pastor, the Potter's House Christian Fellowship Church of Parramatta)

20/10/2009 - Typographical error - December 2006 should read December 2008 - Paragraph(s) 29.Typographical error - "in 2006" should read "in 2008" - Paragraph(s) 14

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