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[2025] NSWSC 1422
General information, not legal advice.
Supreme Court of NSW
2025-11-28
Harrison CJ at CL
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Sanjiv v Coleman Greig Lawyers Pty Ltd [2025] NSWSC 1422
Hearing dates: 21 November 2025
Date of orders: 28 November 2025
Decision date: 28 November 2025
Jurisdiction: Common Law
Before: Harrison CJ at CL
Decision: (1) Dismiss the proceedings.
(2) Order the plaintiff to pay the defendant’s costs.
Catchwords: PRACTICE & PROCEDURE – pleading – abuse of process – UCPR 13.4 – Anshun estoppel – whether present proceedings assert matters that were so relevant to the subject matter of earlier proceedings that it would have been unreasonable not to rely on them PLEADING – UCPR 14.28 – whether statement of claim liable to be struck out on the basis that it tends to cause prejudice, embarrassment or delay in the proceedings
Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D
Family Law Act 1975 (Cth), ss 79, 80
Legal Profession Uniform Law (NSW), ss 172, 174, 178
Vexatious Proceedings Act 2008 (NSW), s 5
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 36.15, 36.16
Cases Cited: BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
Fairfield Pastoral Holdings Pty Ltd as trustee of the Piney Ridge Trust v Van Niekerk [2025] FCAFC 25
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Inghams Enterprises Pty Ltd v Hannigan [2021] NSWCA 309
Port Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Re Attorney-General; ex parte Skyring (1996) 70 ALJR 321; [1996] HCA 4
Sanjiv v Coleman Greig Lawyers Pty Ltd [2024] NSWSC 1675
Sanjiv v Coleman Greig Lawyers Pty Ltd [2025] NSWSC 528
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581
Texts Cited: The Hon P A Keane AC KC, Spencer Bower and Handley: Res Judicata (6th ed, 2024, LexisNexis)
Category: Procedural rulings
Parties: Reshka Sanjiv (Plaintiff)
Coleman Greig Lawyers Pty Ltd (Defendant)
Representation: Counsel:
KJ Young (Defendant)
Solicitors:
Wotton Kearney (Defendant)
File Number(s): 2025/126128
Publication restriction: Nil
1. An order pursuant to UCPR 13.4 or the Court’s inherent power that the plaintiff’s statement of claim filed on 2 April 2025 be struck out on the basis of Anshun estoppel abuse of process or issue estoppel.
- An order pursuant to UCPR 14.28 that the statement of claim be struck out on the basis that it tends to cause prejudice, embarrassment or delay in the proceedings.
3. An order pursuant to s 5 of the Vexatious Proceedings Act 2008 that the plaintiff not be permitted to commence proceedings against the defendant (or any employee or associate or agent of the defendant) arising out of any matter relating to the defendant’s prior retainers relating to the plaintiff’s family law proceedings against her husband Dr Shah commenced in 2014 or any matter related to the earlier proceedings commenced in the Court in 2023 and 2024 without the leave of the Court.
Reshka Sanjiv is a former client of Coleman Greig which she engaged in about June 2018 to act for her in a family law property matter that had been by that time on foot for approximately three years. Coleman Greig continued to act for Ms Sanjiv until May 2019 when it ceased to do so due to her failure to pay tax invoices rendered for professional fees or to provide instructions to implement orders made in the Family Court.
In around July 2019, Coleman Greig commenced proceedings in the District Court against Ms Sanjiv for the recovery of its outstanding fees of $258,490. Judgment by default was obtained by Coleman Greig in November that year for $266,860. Attempts to recover this judgment were unsuccessful.
In due course, in April 2022, Ms Sanjiv retained alternative solicitors to act for her on the sale of the matrimonial home in Epping. A dispute arose with respect to the sale. Ms Sanjiv’s former husband obtained a warrant for possession of the property from the Family Court. In June 2022, Ms Sanjiv attempted to retain Coleman Greig to assist her with respect to her husband’s application and to finalise the sale of the property. She paid their outstanding fees in July 2022. Ms Sanjiv did not thereafter provide instructions to Coleman Greig to assist her either with the sale of the property or her family law proceedings.
On 31 August 2023, Ms Sanjiv commenced proceedings in the NSW Civil and Administrative Tribunal against Ms Karina Ralston personally seeking copies of all trust account statements and itemised invoices. Ms Ralston was an employed solicitor at the time of Ms Sanjiv’s Family Court proceedings and is now a principal and director of Coleman Greig. Ms Sanjiv withdrew the NCAT proceedings on 18 September 2023 after copies of the statements and invoices were provided.
Ms Sanjiv then commenced proceedings in this Court by summons filed on 20 September 2023 naming Coleman Greig and Ms Ralston as the defendants (“the First Supreme Court Proceedings”). She sought the following orders:
- An order declaring cost agreement, if any, between plaintiff and defendants void and invalid and unenforceable and non-existent and to be set aside.
- An order requiring defendants to repay under equity principles/inherent jurisdiction amount of exorbitantly charged and unauthorised costs to plaintiff who bore the costs.
- An order to make a gross sum costs assessment under s 98 of the Civil Procedure Act or reference to a referee under UCPR 20.14.
- An order for contempt of court for wilful, knowing and deliberate breach and disobedience of court order 2.4.3 made by Court on 30 April 2019.
- An order for all invoices with number of hours and rate per hour to be given to plaintiff.
- An order for pre-judgment interest and costs such as payment for court fees.
1. Are the defendants required to repay any monies to the plaintiff?
2. Should the Court make an order for a gross sum costs assessment under s 98 of the Civil Procedure Act 2005 and, if so, in what amount?
3. If the Court is not prepared to make a gross sum costs assessment, should the Court appoint a referee pursuant to UCPR 20.14 to make determination as to costs which the plaintiff is liable to pay to the first defendant?
4. Did the defendants commit contempt of court for wilfully, knowingly and deliberately breaching and failing to comply with paragraph 2.4.3 of the orders made in Family Court of Australia on 30 April 2019?
5. Is the plaintiff entitled to an order for pre-judgment interest and costs of the proceedings?
Prior to the commencement of the hearing, Ms Sanjiv indicated that she would no longer press for Orders 1 or 5 in her summons. However, on the evening before the hearing commenced, Ms Sanjiv proposed a series of amendments to her summons. On 26 September 2024, Meek J refused that application. The hearing then commenced on that day but was not finalised until a further two days of hearing on 7 and 8 April 2025. His Honour published his reasons for judgment on 26 May 2025: Sanjiv v Coleman Greig Lawyers Pty Ltd [2025] NSWSC 528.
On 30 September 2024, less than two days after the first day of the hearing, Ms Sanjiv commenced her second proceedings in this Court by summons naming Coleman Greig as the only defendant (“the Second Supreme Court Proceedings”). By that summons, Ms Sanjiv sought the following relief:
1. Extension of time be granted.
2. Leave to appeal, if required, be granted.
3. Judicial review under Part 59 of Uniform Civil Procedure Rules of judgment of District Court made on 11 November 2019 issued on 17 September 2024 at 11.19 AM, in the alternative, be granted.
4. Appeal allowed.
5. Judgment made by District Court of New South Wales on 11 November 2019 and issued on 17 September 2024 be quashed and set aside under UCPR 35.15 or 36.16 (2)(a) & (b).
6. A declaration that the defendant law practice contravened its disclosure obligations under s 174(1) & (3) of Legal Profession Uniform Law.
7. A declaration that defendant law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed and the plaintiff is not required to pay the legal costs until they have been assessed.
8. An order under this court's inherent jurisdiction for defendant to repay plaintiff $266,859.42, paid by plaintiff to defendant pursuant to this District Court judgment that has no legal effect in view of s 178(1 )(b) & (c) of Legal Profession Uniform Law.
9. An order for pre-judgment interest and costs for payment for court fees etc. or each party to bear own costs.
10 An order that this summons be case managed and heard and determined together with 2023/299506 summons pending before Meek J.
On about 12 November 2024, Coleman Greig filed a motion seeking to strike out the summons in the Second Supreme Court Proceedings on the basis that it was an abuse of process or otherwise had a tendency to cause prejudice, embarrassment or delay.
In her written submissions responding to that application, Ms Sanjiv raised various complaints and claims including that the costs sought by Coleman Greig were excessive because the quality of their work was poor, it included fees incurred unnecessarily and were otherwise not fair and reasonable in the circumstances. Meek J heard the motion and on 10 December 2024 dismissed the summons with costs: Sanjiv v Coleman Greig Lawyers Pty Ltd [2024] NSWSC 1675. At [85] of his judgment, his Honour said this:
“I consider that the relief sought in prayers 1 to 5 of the new summons is untenable. Further, given that the plaintiff had sought leave to pursue similar relief on the hearing of the related proceedings which was denied, I consider that her attempt to re-agitate similar claims by her new summons constitutes an abuse of process of this Court.”
The present proceedings were commenced by Ms Sanjiv by statement of claim filed on 2 April 2025, shortly before the commencement of the second day of the hearing in the First Supreme Court Proceedings. Coleman Greig is the only defendant.
In addition to the agreed list of issues prepared for the First Supreme Court Proceedings, Ms Sanjiv raised the following further issues and matters to which Meek J referred at [49]-[51] of his principal judgment as follows:
“[49] In my assessment, the main complaints of the plaintiff underlying the repayment relief included the following:
(1) Did CGL agree to act for the plaintiff on the basis that the total costs to be charged to her would be no more than a sum of $50,000 (limited sum issue)?
(2) Did CGL fail to disclose to the plaintiff an estimate of the total amount of fees that would be charged to her for acting in relation to the family law proceedings (disclosure of total costs estimate issue)?
(3) Did the plaintiff receive copies of CA1 and CA2 (provision of costs agreements issue)?
(4) Was the plaintiff provided with certain invoices or provided with details of invoices showing the rate per hour of the person doing the work and number of hours utilised by that person (invoice documentation issue)?
(5) Did CGL request instructions from the plaintiff, did the plaintiff give instructions for the tasks itemised in the invoices, and did CGL refuse repeated requests to provide copies of the instructions and evidence of work performed by them (instructions issue)?
(6) Was the plaintiff forced to sign documents and acknowledgements (duress issue)?
(7) Were the total fees charged by CGL exorbitant (exorbitant costs issue)?
(8) Did the plaintiff give instructions for disposal of funds to CGL (funds dispersal issue)?
(9) Is the District Court judgment invalid (District Court judgment issue)?
[50] Mrs Young asserts that a complaint of unreasonable pressure to continue with the retainer was not articulated properly until the cross-examination of the plaintiff. I consider that is partly true. However, even as early as the plaintiff’s affidavit affirmed 4 December 2023, it is clear that the plaintiff asserted conduct that amounts to compulsion, threats, duress, and false representations. Further, Ms Ralston in her affidavit dated 2 April 2024 responded to the plaintiff’s assertions of compelling and threatening conduct.
[51] Principally, whether repayment should be ordered as relief (as the first agreed issue) depends upon answers to these subsidiary issues. Accordingly, I propose to address them first.”
(a) Poor quality of work under s 172(2)(e) of the Legal Profession Uniform L**aw, including that Coleman Greig caused her to suffer loss by failing to advise her to obtain an order for a trustee to be appointed under s 79 and/or section 80(e) of the Family Law Act 1975 to sell assets, pay off liabilities and pay net sale proceeds into the Family Court for it to determine the percentage of division of money paid into Court; (b) Coleman Greig incurred costs on domestic violence matters which were never filed and on super fund matters that were unnecessary; (c) Coleman Greig charged substantial amounts of money for barrister’s fees when the matter settled without a hearing that could have been handled by a trustee appointed under s 80(e) of the Family Law Act and allegations of negligence; (d) Coleman Greig filed a notice of ceasing to act but continued to charge Ms Sanjiv; (e) Coleman Greig obtained an order from the Family Court to act as a conveyancer but refused or failed to act as such after continuing to charge fees; (f) Coleman Greig wasted Ms Sanjiv’s money; (g) Coleman Greig abused Ms Sanjiv’s trust and took unconscionable advantage of her vulnerability to earn substantial amounts of fees for their own benefit even though Coleman Greig and Ms Ralston knew that she was a vulnerable client subject to principles governing non est factum [sic]; (h) Legal costs charged were not fair and reasonable, nor proportionate or reasonably incurred.
Meek J dealt with issues (e), (f) and (g) in his final judgment but said it was too late for Ms Sanjiv to raise issue (a) which was related to issue (c) and what his Honour described as allegations of negligence, issue (b) or issue (d). In her closing submissions filed on 14 April 2025, Ms Sanjiv said, “I respectfully request for findings and conclusions that do not create issue estoppel or issue preclusion or A**nshun estoppel or res judicata in relation to my claim for negligence against defendants in 2025/126128 where assessed costs are claimed as damages.”
In her further closing written reply submissions filed on 26 April 2025, Ms Sanjiv said:
“27. The Costs Agreements are void due to lack of proper disclosures. The quality of work done under s172(1)(e) of the Legal Profession Uniform Law was negligent. That is why I have sued Coleman Greig Lawyers Pty Ltd in the Supreme Court of New South Wales-Common Law Division.
…
- I filed and served a statement of claim against first defendant for negligence and loss of opportunity. I respectfully request for an adjournment of decision-making in these proceedings or a decision that will not create issue estoppel or claim preclusion or res judicata in my above negligence proceedings in Supreme Court common law division”.
HIS HONOUR: ... So what do I do in a context where I’m trying to finalise a judgment, some of the matters that have been raised in the submissions - and I accept it’s not a massive theme - but there is, absolutely, there is reference to either - at least on two occasions, not more than that, I think - but negligence or negligent, and reference to failure to give advice about appointment of trustees, which have led to loss and excessive fees, which even as I speak, it sounds as if that’s a sort of negligence claim. What do I do? Do I deliver judgment on what’s before me or in the context where I have some request, albeit, embedded in a final submission document that hasn’t been formulated - at least formalised in some way, but it’s nonetheless it’s there - what do I do? What do you want me to do Ms Sanjiv?
PLAINTIFF: Your Honour, definitely there is a negligence, that’s why I have filed a statement of claim in common law court and I want that to go ahead; I don’t want that to be stopped. If a decision is made today, I don’t want that to be affected to that court case to--
HIS HONOUR: Well, part of the difficulty with that is that you’ve run an entire hearing, three days of hearing plus submissions afterwards, that have been conducted on the basis that you haven’t even told me about this other action. And I only become cognizant of it by finding, let me use the word, “ad hoc” references to it in submissions.
PLAINTIFF: Your Honour, you’re right, we’ve gone through everything, but this negligence thing is very important. I did not expect the professional I trust take me through that, and I want to go and continue. The situation, you know about the case. Just now, you mentioned about there’s two places you can see that negligence. I would be - I would be happy if you can take that case as well--
HIS HONOUR: Well--
PLAINTIFF: --because that has to go forward.
HIS HONOUR: At the moment, I was literally at the point of delivering judgment in this hearing, and by a process of going through and finally attempting to finalise and finally check a draft judgment, I became cognisant of it, which is why the email that was sent to you both was converted from an email that told you initially that has been listed for judgment this morning to an email that said it was listed for mention to try to work out what was going on and what people want me to do about it.
The whole case has been run on a basis that it’s been about your complaints regarding costs and the size of the costs and disclosure issues, and there are a handful, one or two references, maybe three references if you count this other matter that I’ve referred to where you seem to complain about failure to give you advice on a certain thing that’s caused you loss, but on the whole, it’s not been front and centre of your case. You knew five days before we commenced the hearing, recommenced the hearing on 7 April. You’d filed it on 2 April. You knew. When we first started, the very start of the second day of the hearing, which is 7 April, why didn’t you say to me Judge, I’ve filed this other claim, I want you to hear it, or I’ve filed this other claim, I don’t want you to further hear this case, I want it all to be dealt with together? You’ve allowed a situation to happen whereby the entire case has now been heard and argued. Ms Young, do you assert that you’ve made forensic decisions throughout the hearing on the basis that these issues haven’t been raised? That’s a question.
YOUNG: Sorry, I wasn’t sure whether it was a question. Well, the answer to that is yes.
In the result, his Honour was not satisfied that he should postpone the delivery of his judgment in the First Supreme Court Proceedings to allow the common law matter to be dealt with concurrently or to defer judgment for any significant length of time based on the existing litigated issues. His Honour then indicated that he proposed to deliver judgment on 26 May 2025, which he did, dismissing Ms Sanjiv’s claim with costs.
Paragraph [97] of his Honour’s judgment in the First Supreme Court Proceedings should be noted:
“For abundant clarity, what I have done is address whether an issue of negligence has been fairly raised in these proceedings such that I should attempt to make a finding of ‘negligence’ in respect of the plaintiff’s complaints regarding relief as to costs that she sought in the summons. I have determined that it was not fairly raised (including in light of forensic decisions made by Mrs Young). However, I have not, and do not propose to make any further determination as to whether, in light of my findings and the orders made by me on 22 May 2025, the plaintiff is in some way precluded or estopped from hereafter litigating issues of negligence against the defendants or at least against CGL.”
Three days after the publication of that judgment, Ms Sanjiv filed a motion in the First Supreme Court Proceedings seeking, amongst other things, an order that the judgment be set aside or varied under UCPR 36.15 and 36.16(3A) and that the proceedings be transferred to the Common Law Division. McGrath J heard that application on 11 July 2025 and on 13 August 2025 dismissed it as “meritless”. He made an indemnity costs order against Ms Sanjiv.
Ms Sanjiv has not appealed against Meek J’s decision in the First Supreme Court Proceedings.
Coleman Greig made the following submissions.
It is well-established that the Anshun estoppel doctrine may operate to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of an earlier proceeding to have made it unreasonable in the context of that earlier proceeding for the claim not to have been made or the issue not to have been raised. Considerations of finality and fairness inform the doctrine.
The causes of action do not need to be the same. A**nshun itself involved the same set of facts but completely different causes of action. One involved a claim for indemnity, the other was a contractual claim. McColl JA in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [81] said:
“Anshun … operates ‘not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. … There will be an estoppel if it appears that ‘the matter relied upon ... in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’: Anshun (at 602). The test is one of reasonableness …”.
The party invoking the Anshun estoppel doctrine bears the onus of establishing the unreasonableness of the other party’s choice not to make claims or raise issues in the earlier proceedings. Determination of the reasonableness (or otherwise) of the second party’s conduct of the earlier proceedings involves “a value judgment to be made referable to the proper conduct of modern litigation”. That value judgment is to be made objectively, considering any facts relevant to the proper conduct of those earlier applications and is not limited merely to considering the pleadings.
As noted by Gleeson JA in Inghams Enterprises Pty Ltd v Hannigan [2021] NSWCA 309 at [15], “the relevant question is not whether it would have been reasonable to have made the subject claim in the first proceedings; rather, the question is whether the failure to do so was unreasonable in the context of the first proceeding.”
There nevertheless remains a “special circumstances” exception to the application of the Anshun principle which comprehends situations where, for broad discretionary considerations relating to notions of justice, the principle will not be applied with full rigour: Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 296 citing the Privy Council in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 at 590; BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221 at [30]; Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242 at [38].
“HIS HONOUR: Well, in the plaintiff’s closing submissions in reply, the final paragraph, which responds to your - sorry, not the final paragraph, but the paragraph which responds to your para 51 says, “I filed and served a statement of claim against first defendant for negligence and loss of opportunity. I respectfully request for an adjournment of decision-making in these proceedings, or a decision that will not create an issue estoppel.” So, unless I’m mistaken, that’s a request that I don’t deliver judgment.
YOUNG: Okay, your Honour. Well, it’s been known as a throwaway line, with respect, in terms of dealing with multiple issues which is raised by an unrepresented litigant. I have instructions on that if that’s being formally pressed. We oppose any form of interim or temporary stay, and in our view, I’m happy to address the issues in respect of a stay if it’s sought under s 67 or whether it’s sought pursuant to inherent jurisdiction.”
It is reasonably apparent that Ms Sanjiv embraces Meek J’s comments at [97] of his judgment in the First Supreme Court Proceedings as some indication or implied indorsement of her position that she had not in some way been precluded or estopped by his decision from thereafter litigating issues of negligence against Coleman Greig. Put another way, Ms Sanjiv was at pains to emphasise that Meek J was not making any determination that she could not later plead a separate case in negligence against Coleman Greig simply because he declined to entertain her attempt to raise such a claim in the proceedings then before him.
Although Ms Sanjiv does not say so in terms, I also assume that she would wish to contend that in her legally unrepresented state in the proceedings before him, there were “special circumstances” that ought to translate to the exercise of a broad discretion not to apply the Anshun point strictly against her now.
The question must necessarily distil to whether it was unreasonable for Ms Sanjiv not to have raised the allegations of negligence against Coleman Greig in the First Supreme Court proceedings. In my opinion it was unreasonable. This is for the following reasons.
It is clear that Ms Sanjiv was alive to the possibility of suing Coleman Greig for negligence by no later than April this year when these proceedings were commenced. I consider that she would in fact have been cognisant of the matters she wished to agitate in these proceedings well before that. It is not as if Ms Sanjiv only became aware of or somehow coincidentally alerted to the prospect that she could complain about Coleman Greig’s professional competence as the result of some issue that emerged in the course of the First Supreme Court proceedings.
The hearing of those proceedings commenced on 26 September 2024. Having regard to the plethora of issues that Ms Sanjiv much later attempted, both with and without success, to have Meek J determine, it cannot reasonably be accepted that she was not aware of the matters she wished to allege were breaches of duty by Colemen Greig in the performance of their retainer. Meek J adverted to that on a number of occasions at the hearing on 22 May 2025.
Nor can it be said that the allegations are unconnected with the subject matter of the First Supreme Court Proceedings. Ms Sanjiv pleads that Coleman Greig gave advice to her on or about 30 April 2019 to enter into an agreement with her former husband that resulted in consent orders being made by Harper J in the Family Court. Other similar iterations of alleged failures by Coleman Greig are also pleaded, to the effect that their services were professionally unsatisfactory. There is a direct connection between Ms Sanjiv’s assertions that Coleman Greig’s work was poorly performed and unsatisfactory and her contention that she was not obliged to pay their fees for that work.
Even if there were no such direct connection, the First Supreme Court Proceedings concerned litigation between Ms Sanjiv and Colemen Greig, whether in the context that she was defending their claim for costs relating directly to her Family Court litigation on the one hand or her level of satisfaction with their performance of the services for which the fees were being charged on the other hand. There was a legal and factual connection or overlap between the matters touching and concerning resolution of both disputes.
The fact that Meek J refused Ms Sanjiv’s application to amend to add the negligence issues to the First Supreme Court Proceedings does not alter the position. The effect of a refusal to amend does not mean that the Anshun principle has no application. Paragraph 8.36 of Spencer Bower and Handley: Res Judicata*,* 6th Ed says this:
“The Henderson principle applies although leave to raise the omitted matter was refused. If that matter properly belonged to the earlier litigation, its omission, for whatever reason, until it was too late to obtain leave to amend, bars its assertion in later proceedings…
This must also apply for issue estoppel, and an unsuccessful application in the earlier proceedings for leave to amend should not be a special circumstance which displaces the estoppel…”.
“43 Insofar as FPH can be taken to rely on the remarks of Powell JA in Macquarie Bank to dispute the primary judge's analysis of the relevant principles of Anshun estoppel (at [45]-[55]), which hold that such an estoppel may arise where the failure to litigate a matter in earlier proceedings was due to leave to amend to raise the issue being refused, we apprehend no difficulty with the reasoning of the primary judge. As the respondent submits, while it is not necessarily determinative, the fact that leave to amend to introduce a claim was sought and refused is plainly relevant to consideration of whether subsequent litigation of the point is precluded by an Anshun estoppel.
44 In this regard we agree with the learned authors of Spencer Bower and Handley that the view so definitively expressed by Powell JA in Macquarie Bank at 619 cannot be accepted as a statement of generally applicable principle. It would be anomalous if a party could avoid an Anshun estoppel merely by virtue of having sought to raise the issue by means of a late amendment. This is especially so in light of the now entirely orthodox recognition of the importance of timely, cost effective and efficient conduct of modern civil litigation. In UBS AG v Tyne (2018) 265 CLR 77 (UBS AG) at [38], Kiefel CJ, Bell and Keane JJ addressed the effect of Aon in this respect as follows:
‘The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the [Federal Court of Australia Act]. As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the ‘just resolution’ of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the [Federal Court of Australia Act]. Integral to a ‘just resolution’ is the minimisation of delay and expense. These considerations inform the rejection in Aon of the claimed ‘right’ of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitate. The respondent's argument in Aon, that the proposed amendment to raise the fresh claim was a necessary amendment to avoid multiple actions, did not avail. As their Honours observe, if reasonable diligence would have led to the bringing of the claim in the existing proceedings, any further proceeding might be met by a stay on Anshun grounds’.”
Coleman Greig maintains for a number of reasons that Ms Sanjiv’s statement of claim is defective and should be struck out on the basis that it tends to cause prejudice, embarrassment or delay in the proceedings.
First, it bundles multiple points in a single large paragraph and does not give proper particulars. That requires the defendant to guess what the claim is. That is not an acceptable way to proceed, even allowing for the fact that Ms Sanjiv is not legally represented.
Second, it does not include any reference to matters required by the Civil Liability Act 2002. Such matters are fundamental to understanding the legal basis of the claim. For example, there is no identification of the existence and scope of the retainer at each relevant time, the scope and content of any duty, the alleged risk of harm, the basis relied on to say the defendant knew or ought to have known of the risk, or what precautions Coleman Greig ought to have taken.
Third, paragraph 8 of the statement of claim pleads nothing about what advice should have been given. The remaining paragraphs identify the content of the proposed advice, but not the circumstances relied on for why that advice would have been given by a reasonable person: s 5B(1)(c). There is no pleading of any of the matters in s 5B(2) or any other relevant circumstances relied upon.
Fourth, there is no pleading that the alleged negligence was a necessary condition of the harm or that it is appropriate for the scope of liability to extend to the harm caused (s 5D). There is also no pleading of the circumstances relied upon for either s 5D (3) or s 5D (4).
Fifth, there is no pleading of the losses claimed and therefore no proper pleading of causation. Without legally recognised compensable harm, the claim has no legal basis and no prospect of success.
Sixth, it is similarly fundamental that the alleged breach caused the claimed harm. This is not pleaded.
Seventh, Ms Sanjiv has failed to plead all relevant facts and circumstances relied upon or to give adequate particulars.
Eighth, there is inadequate pleading of what Ms Sanjiv alleges would have happened had that advice been given. The allegation that she would have accepted the advice is only the first step: there is no reference to what would have happened if the “correct” advice had been given and acted upon.
Ninth, there are no facts or circumstances pleaded to support causation or that the scope of liability should extend to the losses.
Ms Sanjiv submitted that access to justice is a fundamental aspect of the administration of justice and that the Court should be vigilant to guard against the rigid application of principle at the expense of facilitating the just resolution of matters properly brought forward for judicial determination. To that end, a degree of flexibility and even indulgence might appropriately be afforded to a self-represented litigant in a proper case: see Re Attorney-General*; ex* parte Skyring (1996) 70 ALJR 321; [1996] HCA 4.
I take Ms Sanjiv’s response to be at least a tacit acceptance of the fact that her statement of claim is inadequate and that she should be given an opportunity to replead it in proper form.
There is in my opinion no question that Ms Sanjiv’s statement of claim is wholly inadequate and should be struck out. Resorting to purely non-technical language, it would not be possible to know from any reading of the statement of claim precisely, or even generally, what advice Ms Sanjiv says Coleman Greig should have given to her in place of the advice that she actually received. Presumably Coleman Greig recommended that she enter into the agreement represented by the consent orders. If Ms Sanjiv alleges that that advice was negligent or inadequate or faulty, at the very least she would be required to describe or explain what was wrong with it. What advice should she have been given? It is not possible to know what Coleman Greig failed to do which they allegedly should have done.
Equally fundamental is Ms Sanjiv’s failure to explain what she has allegedly lost as the result of the advice she was given. Ms Sanjiv was in a property dispute in the Family Court. It may be accepted for present purposes that she came away from that contest disappointed with the outcome. What does Ms Sanjiv now say is the outcome that Colemen Greig could and should have secured for her in contradistinction to the outcome they achieved? Ms Sanjiv does not articulate the nature or extent of her loss by any comparison between what she got and what she wanted. Nor does she come to terms with the fact that the achievement of any different result for her in the Family Court was necessarily constrained by the parameters of adversary litigation in which she was engaged: the extent to which Colemen Greig could or should have achieved a different result is to a considerable extent a function of factors beyond their control. Would Ms Sanjiv’s former husband have agreed to any other result? Was the outcome reasonably aligned with the forensic risks that she faced? These things are not adverted to in the statement of claim in any way at all.
I have already indicated that these proceedings are an abuse of process and should be dismissed. But for that conclusion, I would have been prepared to afford Ms Sanjiv an opportunity to re-plead her case. However, in so saying I remain pessimistic that any statement of claim that Ms Sanjiv might prepare without legal assistance would not offend in the ways described above.
I make the following orders:
Dismiss the proceedings.
Order the plaintiff to pay the defendant’s costs.
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Sanjiv
Coleman Greig Lawyers Pty Ltd [2025] NSWSC 1422
(1995) 57 FCR 287
(1981) 147 CLR 589
(1996) 70 ALJR 321
(2004) 146 FCR 10
(2018) 265 CLR 77