Slater v Romano & Verduci

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

20007/02 MERRILEE MARGARET SLATER v ROMANO & VERDUCI, SOLICITORS

JUDGMENT 1 HIS HONOUR: By notice of motion filed 25 February 2003 the defendants in this cause are seeking orders that: "1. Pursuant to Part 13 rule 5 of the Supreme Court Rules, the plaintiff's Statement of Claim against the defendants be dismissed generally. 2. Pursuant to Part 15 rule 26 of the Supreme Court Rules, the plaintiff's Statement of Claim against the defendants be struck out as an abuse of process. 3. The respondent pay the applicants' costs of this motion. 4. Such further or other orders as the Court thinks fit." 2 The defendants moved on the affidavit of Bruna Romano sworn on 25 February 2003. 3 Mr Meagher, who appeared for the defendants, submitted that the statement of claim was deficient as to form, that the proceedings instituted by the plaintiff were an abuse of process and that, in any event, the proceedings are barred by statute: the Limitation Act 1969. 4 The plaintiff has appeared in person to resist this application and it was the plaintiff who prepared the statement of claim in which the defendants named are "Messrs Romano and Verduci, Solicitors". The statement of claim is relatively short in its form and I set it out hereunder: "1. The Plaintiff hired and paid the defendant in which Mrs Bruno Romano represented the Plaintiff to obtain a Divorce and Settlement of Property; the defendant failed to follow through the Decree and Orders and see the Plaintiff and Six (6) Children were provided for, she failed to secure a Settlement of Property. The Plaintiff was forced home and had another child through not disposing of the Marriage. The Defendant did not do as the Law required of her, she failed to see Orders were enforced and Property transferred and executed. The Plaintiff got no Orders, no orders enforced. The Supreme Court A.C.T. put the husbands Name WRONG on Decree. The Defendant ABANDONED the case. The Plaintiff has been cruxified [sic] ever since, not only by the husband the Courts because of Non-Enforcement of the Orders. Plaintiff has suffered - Continual Harassment by stalking, intimidation, physical injuries, Psychological, social and Financial and also by the Courts by not allowing her lawful rights and by having to represent herself in Court because of her lack of faith in the legal system through the Defendants actions and because no solicitor would take it on. 2. The Defendant mislead the Plaintiff to believe she was Divorced and could not get a Property Settlement because the Matrimonial home/property was in the husbands name which left her no right to claim. The Defendant allowed the husband to keep the home and the Earth Moving Business, money and investments, she knew the Plaintiff and six children were left out in the street, Plaintiff deceived and mislead. No transfer of Property has taken place, husband has attempted and is still trying to kill Plaintiff and two of the Children over it. (a) Neglect of Duty to follow through, failed to enforce Decree Orders, (b) Mishanded [sic] the case, (c) Abandoned the case, (d) Loss of Entitlements, home, hardship, stress, Financial loss, injuries (e) Fraud and Deceit, (f) Legal Costs. THE PLAINTIFF CLAIMS 1. - Damages - Compensation - Interest under s 94 - Costs - Pain and Suffering - $25 million" 5 It is to be observed that the plaintiff's claim relates to the alleged negligence of Bruna Romano in the conduct of proceedings on behalf of the plaintiff. It seems to be clear enough from the affidavit of Ms Romano that she was engaged to act for the plaintiff in March 1976 and that in doing so Ms Romano was taking over the conduct of a matrimonial cause then on foot. 6 Before considering the issues that arise on this notice of motion, it is desirable that I record relevant matters of history. 7 The plaintiff's petition in which a decree of dissolution of marriage was being sought came on for hearing before Connor J in the Supreme Court of the Australian Capital Territory on 28 July 1976. On that date a decree nisi for dissolution of marriage was pronounced and the court made these further orders: "(1) That the petitioner have the sole custody of Bridgett Margaret Slater and Mindi Hidi Slater and that the respondent have reasonable access to the children. (2) That the right to make an application for sole custody in respect of any one or more of the said five children of the marriage be reserved to the petitioner or the respondent. (3) That the respondent pay to the Registrar of the Court the weekly sum of $40.00 for the maintenance of the petitioner, such sum to be calculated from the 28th. day of July, 1976 and the first payment to be made on or before 4th. August, 1976. (4) That the respondent also pay to the Registrar of the Court the weekly sum of $20.00 in respect of the maintenance of each of Andrea Beverley Slater, Tracey Ann Slater, Bridgett Margaret Slater and Mindi Hidi Slater. Those payments to be calculated from the 28th. day of July, 1976 and the first payment is to be made on or before 4th. August, 1976. (5) That the questions of settlement of property be reserved and that the petitioner's costs of an[d] incidental to the proceedings up to and including today be taxed and be paid by the respondent." 8 The decree nisi became absolute automatically on 29 August 1976. 9 It was not however until 29 November 1993 that the plaintiff's application for property settlement was listed before Higgins J in the Supreme Court of the Australian Capital Territory, and his Honour made an order under the cross vesting legislation transferring the proceedings to the Family Court of Australia. Thereafter, on 5 July 1994, the application for property settlement proceeded in the Family Court. The plaintiff, as applicant, and her former husband, as respondent, were represented by counsel on the application heard by Treyvaud J. The proceedings were determined in the plaintiff's favour and her former husband was ordered to pay to her the sum of $30,000. An order for costs was made in the plaintiff's favour. 10 The plaintiff, being dissatisfied with that decision, appealed to the Full Court of the Family Court and on 10 August 1995 that court made an order varying the order for property settlement made at first instance. The Full Court ordered that the former husband pay to Mrs Slater a further sum of $70,000, together with interest calculated from 5 October 1994. In that appeal Mrs Slater had sought unsuccessfully an order in respect of the transfer to her by her former husband of his right title and interest in a property known as "Wondarra" at Murrumbateman. 11 The plaintiff being dissatisfied with the outcome of the proceedings in the Family Court made application in the Supreme Court of the Australian Capital Territory again seeking an order that her former husband transfer to her his interest in the former matrimonial home known as "Wondarra" and that he pay to her $1 million in compensation. Certain other orders were sought which it is not necessary to record here. Miles CJ dismissed that application. His Honour considered that the Supreme Court of the Australian Capital Territory no longer had jurisdiction by reason of the order that had been made under the cross vesting legislation. 12 An appeal was pursued and was heard by a Full Court constituted by Gallop, O'Loughlin and Drummond JJ. Judgment was delivered on 27 June 1997, and in his judgment Gallop J said this: "10. Miles CJ observed that those proceedings having been heard and determined in the Family Court, that would be an end of the matter. However, it seems to me that whether his Honour is right about that or not, the order transferring the proceedings to the Family Court out of the Supreme Court of the Australian Capital Territory certainly has divested the Supreme Court of the Australian Capital Territory of any jurisdiction in relation to the application for a property settlement and that the Supreme Court, as his Honour said, lacks entirely the power to arrogate that lost jurisdiction to itself. 11. In my opinion, his Honour was correct in holding that the Supreme Court of the Australian Capital Territory no longer had jurisdiction to entertain the application for property settlement. This has caused a good deal of grievance on the part of Mrs Slater. She maintains that what happened in the Family Court did not amount to a property settlement. I do not agree with that submission. The powers of the Family Court extended in relation to her application for property settlement to making orders for the payment of lump sums of money to her in full settlement of her claim for property settlement. Clearly, that is what that court did and her claim for property settlement was thus heard and determined. 12. Next, it was submitted by Mrs Slater that the parties are still married because the decree absolute, which she has seen, has not been sealed. In my opinion, that is a submission which has no merit whatsoever. The parties clearly have been divorced, as I say, since 1976 and the decree became absolute on 29 August 1976. There is no substance in the argument to the contrary. 13. Mrs Slater has complained in a general way that the transfer of the proceedings to the Family Court has deprived her of justice. One can understand her saying that. She is plainly seriously aggrieved by the results that she obtained in the Family Court and in a frank answer to a question asked from the bench, she has said that by instituting these proceedings, what she wants is somehow to get the maintenance which has not been paid pursuant to the order that was made on pronouncement of the decree nisi on 28 July 1976, she wants the property, Wandara , and she wants compensation for 'What she has been put through'. 14. She says that the husband has been guilty of harassing her and the children all the time and they live in fear all the time. All of that is her grievance but this court cannot do anything about relieving those grievances. 15. In my opinion, the appeal against the order of the Chief Justice made on 28 October 1994 should be dismissed." 13 The other members of the court expressed their agreement with the presiding judge, although adding some remarks to which it is unnecessary for me here to refer. 14 From the judgment of the Full Court the plaintiff sought, but was refused, special leave to appeal to the High Court. In refusing leave Brennan CJ said this: "Mrs Slater has reached the end of the appeal process. No error appears in the judgment of the Full Court of the Federal Court which warrants a grant of special leave to appeal to this Court. Special leave must be refused and, whether Mrs Slater accepts the decisions or not of the courts below, they are binding upon her. Accordingly, special leave is refused." 15 Two further appeals were the subject of judgments delivered by the Full Federal Court on 25 February 1999: [1999] FCA 184 and [1999] FCA 185. One of those appeals was an appeal against a decision of Miles CJ refusing to entertain Mrs Slater's notices of motion seeking enforcement of orders made by Connor J on 28 July 1976. Behind the application to Miles CJ and the appeal from his decision was Mrs Slater's mistaken belief that in reserving any question of settlement of property in 1976 Connor J was reserving his judgment on an application for property settlement which he had entertained. That error was exposed in the judgment of Spender J delivered on 25 February 1999 and with whose judgment the other members of the court agreed. Spender J said in the course of his judgment (at para 10): "Mrs Slater persists in ignoring the binding nature of the decisions made concerning her matrimonial cause. It seems to me plain that there has been no error demonstrated in relation to the decision of Miles CJ concerning the notice of motion dated 28 September 1998. That application, it seems to me, was an abuse of process in that it was an attempt to re-litigate matters which had been conclusively and finally determined against Mrs Slater" 16 The second of the appeals resulting in judgment delivered on 25 February 1999 was an appeal from a decision of Finn J in dismissing applications for prerogative relief against Miles CJ and the Registrar and the Sheriff of the Supreme Court of the Australian Capital Territory. That appeal was also dismissed. The court was constituted by Spender, Higgins and Weinberg JJ. Each of the members of the court considered that the proceedings should be dismissed as an abuse of process. I refer only to part of the judgment of Spender J, with whose reasons the other members of the court agreed: "20 The application before Finn J was a further effort by Mrs Slater to get what she says she is entitled to. She admitted in the course of the discussion with this court that this appeal is directed to making the Supreme Court listen to her claims in relation to the enforcement of the orders made by Connor J in 1976. 21 It is clear that the object of this litigation is to pursue matters which have been conclusively and authoritatively determined against her. It is an abuse of process in those circumstances to commence and maintain these proceedings. 22 In my opinion, this appeal is an abuse of process and indeed the proceedings before Finn J were an abuse of process…" 17 The plaintiff took further proceedings in the Federal Court which were determined on 10 May 2001 ([2001] FCA 549). In those proceedings the plaintiff sought an order for a writ of mandamus against Mr Justice Higgins "directing him to fulfil his duty to continue as if the Family Law Act had not been passed". These proceedings were heard by Madgwick J and his Honour set out much of the history as to what has occurred since the time that the plaintiff filed the petition to which I referred earlier in this judgment. His Honour said this at pp 34-35 of his judgment: "34 Thus the applicant has instituted numerous proceedings in the Federal Court and also the Supreme Court, sought leave to appeal to the High Court in relation to her matrimonial property grievances and sought to compel the ACT Supreme Court to deal with her proceedings. After the initial attempts to invoke the jurisdiction of this Court were unsuccessful, the continued attempts by the applicant to use this Court to compel the Supreme Court to deal with her matrimonial cause, including these present proceedings, have clearly been instituted without any reasonable ground. No doubt the applicant believes that she has valid reasons to come to this Court and seek it to compel the Supreme Court to deal with her matrimonial cause but, looking at the matter objectively, the applicant has had no reasonable ground for instituting the numerous proceedings that she has. The issues which the applicant continually raises before this Court have been authoritatively determined against her and her cause can fairly be described as "utterly hopeless", in the words of Roden J. 35 Although it is a serious thing to declare a litigant as vexatious and keep her out of the Court, without first having the leave of a judge, Ms Slater has shown by her persistent refusal to accept the decisions of this and other courts that, unless the Court acts to protect the respondents whom Ms Slater is apt to name, other litigants in the queue of cases awaiting hearing and the Court's own interest in preventing abuse of its processes, she will continue to seek to bring these hopeless matters forward. Ms Slater should therefore be treated as a vexatious litigant pursuant to O 21 r 1. " 18 In the result his Honour dismissed the plaintiff's application and ordered that the plaintiff not be permitted to institute further proceedings without the leave of a judge of that court. 19 What is clear from the above narrative of litigation in which the plaintiff has been engaged, and the narrative is not exhaustive, is that the plaintiff's claim for property settlement was duly entertained in the Family Court and upon the completion of the appeal process in the Family Court on 10 August 1995 the plaintiff's rights to property settlement were duly and finally determined. 20 Against this background I consider the plaintiff's claim. It is quite obvious that the pleading is defective in form and cannot be allowed to stand. Certainly it is embarrassing for the purposes of Pt 15 r 26. For the assistance of the plaintiff I set out the provisions of Pt 15 r 26: "(1) Where a pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, (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, the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 21 At this point I observe that the statement of claim as drawn generally offends the requirements of Pt 15 r 7 of the Supreme Court Rules, which is in the terms following: "(1) A pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved. (2) Subrule (1) has effect subject to this Part and to Part 7 (which relates to originating process) and to Part 16 (which relates to particulars)." 22 It is encumbent on the pleader to plead facts and to do so with precision. This requirement has not been satisfied and this failure renders both paras 1 and 2 deficient. 23 I add that in para 1 of the statement of claim the plaintiff has endeavoured to plead a retainer. However the precise terms of the retainer have not been pleaded, nor have the precise breaches. Nor has the date of the retainer or the date or dates of the breach or breaches been pleaded. 24 It would seem from sub-headings (a), (b) and (c) under para 2 that the plaintiff has in contemplation the pursuit of a claim in negligence but such a claim has not been properly pleaded, nor have particulars been provided as required by Pt 16 r 4 of the Rules of Court. 25 Paragraph 2(e) conveys a claim in fraud is intended. Part 15 r 13 of the Rules requires that such a claim must be specifically pleaded, and no attention has here been given to the requirements of this rule. Moreover, Pt 16 r 2 requires that a party pleading must give particulars of any fraud pleaded and this has not been done. 26 Part 16 r 5 requires a pleader to give particulars of moneys paid or liable to be paid where a claim of such a nature is intended to be included in a claim for damages. No attention has been given to this rule. 27 Then there are assertions in the pleadings which are plainly untenable in the pursuit of a claim against the defendants. I instance the following:

(i) the assertion that the defendants were in some way responsible in law for the birth of the plaintiff's youngest child;

(ii) the assertion that the defendants were in some way responsible for "continuous harassment by stalking, intimidation, physical injuries and psychological harm" to the plaintiff when such was apparently suffered in consequence of the behaviour of the plaintiff's former husband. 28 There is a complaint in para 1 of the pleading that "the Supreme Court ACT put the husband's name WRONG on a decree". (The husband was wrongly named in both the decree nisi and the decree absolute as Laurence Walter Slater instead of Walter Laurence Slater.) This is not the first time that that complaint has been made by the plaintiff. Indeed, that complaint was considered in the Family Court in 1998 and more recently in the Federal Court in 2001. I need refer only here to the judgment of the Federal Court on 12 June 2001. The Court was constituted by Whitlam, Madgwick and Kenny JJ and the judgment was a joint judgment. Their Honours said at para 34: "On 12 January 1998 Bell J of the Family Court also concluded (as we have done) that the mistakes in Mr Slater's name did not affect the validity of the decree nisi pronounced on 28 July 1976. On that occasion too, Mrs Slater claimed that the decree nisi had not become absolute because, amongst other things, her husband was named incorrectly. His Honour held that in January 1998 the decree had been absolute for over twenty-one years, and it was unnecessary to correct the errors which concerned Mrs Slater. On 10 June 1999 the Full Court of the Family Court dismissed an appeal from his Honour's judgment…" 29 As the Federal Court observed there was nothing left to be done in the judgment of that court concerning the error in name and no action could possibly be maintained now by reason of the husband being incorrectly named in the decree. 30 This Court is conscious of the disadvantages under which a litigant in person inevitably labours. Nevertheless the conclusion is inescapable this statement of claim must be struck out. The only remaining question is whether the plaintiff ought to be permitted to replead, or whether the proceedings should be dismissed either generally or on some other basis pursuant to the provisions of Pt 13 r 5. As recorded at the outset, the defendants here rely upon the requirements of Pt 13 r 5, and of Pt 15 r 26 in the alternative. Part 13 r 5 provides: "(1) Where 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) no reasonable cause of action is disclosed, (b) the proceedings are frivolous or vexatious, or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings. (2) The Court may receive evidence on the hearing of an application for an order under subrule (1)." 31 If the proceedings are struck out under Pt 15 r 26 the plaintiff may be permitted to replead. However, as its terms indicate, Pt 13 r 5 confers a power to stay proceedings or to dismiss them generally in relation to any claim for relief pursued in the proceedings. 32 An order to bring proceedings to an end on an interlocutory application should only be made where to permit the proceedings to go to trial would be futile: see the much cited dicta in General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125. That case made it plain that summary dismissal of proceedings is a power to be used sparingly. What Barwick CJ said at p 129 as to the jurisdiction summarily to terminate an action, after considering authorities referred to in argument, was this: "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 various 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." 33 One of the deficiencies in the pleading here, as I pointed out earlier, is that it does not reveal when it is alleged that the services of the defendants, and in particular Ms Romano, were retained or when it was that the cause of action arose. However, Ms Romano has stated in her affidavit sworn 25 February 2003 and filed in support of the notice of motion, that the plaintiff came to see her in March 1976 and that her firm ceased to act for the plaintiff in "about 1977 or 1978". I refer to paras 22-24 of her affidavit. 34 Then, in paras 26-27, Ms Romano further deposed: "26. I had no further dealings with the plaintiff until on or about 25 November 1997 when the plaintiff came to the offices of Romano & Co complaining about the solicitors who dealt with her property settlement in 1994 and asking my advice. On that day, and in my office, I had a conversation with the plaintiff to the effect of: She said: I am here to ask your help concerning what happened with my property settlement. The solicitors who dealt with its stuffed it up and I want to know what happened". I said: You should contact the solicitor who acted for you in this property settlement and obtain details from that solicitor. 27. On 26 November 1997, I then advised the plaintiff in writing to consult the solicitor who acted for her in the property matter…" 35 The letter referred to was annexed to the affidavit and, omitting formal parts, it read as follows: "We refer to your attendance at this office on the 25th November and confirm that there will be no charge for that consultation. In the writers view you should consult the Solicitor who acted for you in the property matter and obtain written advise [sic] of what your position is today relating to property. This firm is not on the Court records as your most recent Solicitors and no work will be undertaken by us on your behalf." 36 Ms Romano was not cross examined on the assertions set out in paras 33 and 34 above. 37 It seems then that the professional services of Ms Romano were engaged some twenty-seven years ago and from the review of the litigation set out earlier in this judgment that the full Family Court finally determined the plaintiff's right to property settlement as long ago as 10 August 1995. Moreover, the plaintiff had legal representation not provided by the defendants in those proceedings in the Family Court. 38 The plaintiff filed an affidavit sworn 25 February 2003 in response to the notice of motion presently under consideration and this affidavit was directed to alleged shortcomings in the conduct of Ms Romano. Those shortcomings and allegations of misconduct related to the proceedings of the plaintiff under the Matrimonial Causes Act. This affidavit refers further to what would appear to be various of the allegations pleaded in the defective statement of claim. However, the affidavit cannot be regarded as curing the defects in the statement of claim. 39 Mr Meagher submitted that the proceedings ought to be dismissed pursuant to Pt 13 r 5 of the Rules of Court. He submitted that the effect of s 14 of the Limitation Act in its application to a case of the nature here under consideration is such that at the very latest, even assuming there was breach of the terms of their retainer by the defendants, any cause of action arose at the time of the decision of the full Family Court in August 1995. It followed that at the latest any claim the plaintiff may otherwise have had against the defendants became statute barred in August 2001. Mr Meagher submitted that since the statement of claim was not filed until 4 January 2002 any claim the plaintiff might otherwise have had was by then indeed statute barred. 40 The plaintiff responded to this submission in two ways: firstly, the plaintiff submitted that the letter from the defendants on 26 November 1997 and set out above evidenced a retainer continuing at least up to that time and that it was incorrect to assert that the defendants ceased to act back in 1977 or 1978. I do not accept that the letter of 26 November 1997 would support a conclusion that there was at that time a continuing retainer. 41 The second matter put by the plaintiff is that the defendants' retainer remained on foot whilst orders remained unenforced. That submission in my view is untenable and misconceived. As the review of the plaintiff's litigation after her decree nisi was pronounced reveals, the plaintiff subsequently retained other solicitors to act for her in later proceedings and such retainer is not consistent with the alleged continuing retainer of the defendants. 42 I accept Mr Meagher's submission that any claim the plaintiff may otherwise have had against the defendants in contract or based on the tort of negligence is statute barred. What of a claim based upon alleged fraud? 43 Section 55 of the Limitation Act provides: "(1) Subject to subsection (3) where: (a) there is a cause of action based on fraud or deceit, or (b) a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed, the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person against a person answerable for the fraud deceit or concealment. (2) Subsection (1) has effect whether the limitation period for the cause of action would, but for this section, expire before or after the date mentioned in that subsection. (3) For the purposes of subsection (1), a person is answerable for fraud deceit or concealment if, but only if: (a) the person is a party to the fraud deceit or concealment, or (b) the person is, in relation to the cause of action, a successor of a party to the fraud deceit or concealment under a devolution from the party occurring after the date on which the fraud deceit or concealment first occurs…" 44 Allegations of fraud are made in the plaintiff's submissions. I refer to her affidavit filed 26 February 2003. On page 5 of that affidavit these assertions are made: "Mrs Romano frauded both the Courts by lodging a second Application in March 1977 in the Family Court that has no Jurisdiction, estopel prevented hearing twice, the suit was heard by Decree in the Supreme Court. Mrs Romano frauded the Courts seeking and obtaining Orders in both Jurisdictions, she made a mockery of the Court system jumping from one Jurisdiction to the other seeking essentially the same orders, then failed to inform me, acting Exparte in the Family Court proceedings in which I had no knowledge of untill 1997. She abused the system, taking advantage of the Change over of the Laws and me for self gain. Both the Reserved Judgement of the Supreme Court and the Family Court Orders are not in the Court Files, which leads to no other option but to believe Mrs Romano removed the Orders in effect to collude with the husband and giving no reason or evidence to date of what Orders were made still further indicates her to further collusion and Deciet…" 45 To assert fraud is to make a very serious assertion indeed, and the Rules of Court recognise this in their requirements as to how it should be pleaded and particularised. It is anything but clear to which precise fraudulent act or cause Mrs Slater is referring in the above paragraphs but what is clear is that the reference is to events that occurred in the 1970s. 46 Then, on p 6 of that same document, this is asserted: "In 1977, Mrs Romano appeared at the Family Court and falsely stated that she was instructed to do so… She falsified documents by forging my signature." 47 Once again these assertions relate to events that allegedly happened in 1977. 48 The plaintiff has not properly pleaded any cause of action in fraud and there is nothing in her submissions or her affidavit to indicate that an arguable case of fraud could have existed against the defendants. Even if it were otherwise, there is nothing put forward by the plaintiff to support a conclusion that the existence of such a cause of action was first discovered by the plaintiff, or may with reasonable diligence first have been discovered, at a time such as would defeat the limitation period for which the Limitation Act makes provision. 49 The litigation in which the plaintiff has been engaged in the period that has elapsed since the decree nisi for dissolution of her marriage was pronounced in July 1976 evidences her deep dissatisfaction with the outcome of all aspects of the resolution of her relationship with her former husband but nevertheless that outcome has long since been determined. 50 I have concluded, having reflected on all that Mrs Slater has put before this Court, that the pursuit now of any claim arising out of the retainer of the defendants in 1976 or thereabouts is doomed to failure, and that, indeed, this present claim constitutes an abuse of process. Accordingly, I make the order sought in para 1 of the defendants' notice of motion. I also make the order for costs sought in para 3. **********

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