Stankovic v Hockey

Ex tempore Judgment 1Before me is a notice of motion filed on behalf of the defendant, Charles Hockey, seeking four orders. The first order is that the statement of claim filed against Mr Hockey by Mr Michael Stankovic be struck out. The second order sought is that the proceedings be dismissed. The third order sought is for costs. The fourth order is what is usually included in a notice of motion, namely, such further or other orders as the Court deems fit to make. 2In the written submissions filed in support of the notice of motion counsel for Mr Hockey indicated the only substantive relief sought was that the statement of claim be struck out. It was conceded that Mr Stankovic should be given an opportunity to replead. That has significance to the events that have transpired. 3The proceedings in this Court appear to have arisen out of the fact that at some point Mr Hockey was Mr Stankovic's solicitor and acted for him in some proceedings in the bankruptcy jurisdiction of the Federal Circuit Court of Australia, then known as the Federal Magistrates Court of Australia. 4The only course now to take is to set out the entirety of the pleading against Mr Hockey: "The plaintiff relies on the following facts and assertions: 1. On 1st June 2009, Charles Hockey filed a Notice of Appearance into the Federal Magistrates Court of Australia stating that he was the Plaintiff's legal representative in the Matter of the Baulkham Hills Shire Council v Milovan Stankovic, Case Number SYG1333 of 2008. 2. On 2nd June 2009, Charles Hockey attended the Federal Magistrates Court of Australia, still claiming to be my legal representative, and signed a General Short Minutes of Order for the Court to dismiss my oral Application made on 29 May 2009 before Federal Magistrate Barnes that the Sequestration Order made and stayed for 21 days by Federal Magistrate Raphael on 12 May 2009 be nullified and not brought into effect. Charles Hockey wrongly told the Court that I had consented to this dismissal. 3. Neither on 1st nor 2nd June 2009, was Charles Hockey my legal representative. No [sic] did I instruct him to do that. And hi [sic] knew that I pay in ful co [sic] cold sacvesecion [sic] order. 4. On 25th May 2009, I paid the one and only Petitioning Creditor in the Matter of Case Number SYG1333 of 2008, being the Baulkham Hills Shire Council, the money ordered by Federal Magistrate Raphael on 12th May 2009 which was well before the expiration of the 21 days of the Stay. 5. On 29th May 2009, I attended the Federal Magistrates Court of Australia and handed to the Federal Magistrate the Receipt of that payment, totalling $25,420, but Federal Magistrate Barnes rejected the receipt and refused to rescind the pending Sequestration Order. 6. The deceitful actions of Charles Hockey has caused me extreme loss, damages and suffering." 5To this part of the pleading there must be added the fact that the relief claimed in Mr Stankovic's statement of claim is as follows: "1. THAT a Jury adjudge the Defendant as guilty of Deceit. 2. THAT a Jury award to the Plaintiff damages of $AUD35,000,000 plus (thirty five million Australian dollars) or the amount they determine is right pursuant to s.4 of the Jury Act 1977 No 18." 6The statement of claim is self-evidently fatally flawed. It fails to identify the relevant material facts alleged in the case against Mr Hockey. As best as can be ascertained, the only cause of action pleaded is one for the tort of deceit, but the relevant conduct of Mr Hockey said to give rise to that tort is not properly pleaded. It is to be remembered that an allegation of deceit is a serious one being an allegation of fraud. Such allegations must be fully particularised (see Uniform Civil Procedure Rules 2005 (NSW), r 15.3). 7In fact there are so many difficulties with the pleading it is quite an exercise to catalogue all of them. I will simply note a further matter. There is nothing in the pleading which identifies any material facts supporting the allegation that any alleged tortious conduct of Mr Hockey caused the alleged "extreme loss, damages, suffering" that Mr Stankovic pleads in [6], much less anything that would justify a verdict for the not inconsiderable sum of $35 million. 8The matter was specially fixed for today with an estimate of half a day. The obtaining of a fixture for a notice of motion in this Division is an important step. The Court expects parties to be ready to proceed on the dates indicated. However, in the days preceding the hearing of the motion Mr Stankovic brought to the attention of the solicitors for the defendant the fact that he was unwell, and requested that today's date be adjourned. It appears he advised them he had the flu. 9Yesterday a document was sent to the Court attaching a doctor's certificate indicating Mr Stankovic had a "flare-up of his arthritis" and was unfit to continue his "usual activities". This document also indicated that Mr Stankovic had made an appointment with a "new lawyer" in relation to his case. In addition there was a communication made to the Court on his behalf. However, the author of the communication has previously been found to be a vexatious litigant (see Attorney General of NSW v Wilson [2010] NSWSC 1008). It can be put to one side. 10In the ordinary course, a bona fide contention that a person in Mr Stankovic's position was too ill to attend Court might lead to an adjournment of an application of this kind, especially in circumstances where he had arranged an appointment to obtain legal representation. However, for two reasons I will not take that course. The first is that the relief sought is not in any way determinative of the outcome of the proceedings. Instead, as I have indicated, all that is sought at this point on Mr Hockey's behalf is that the current formal pleading be struck out. It is accepted Mr Stankovic will be given an opportunity to replead. Second, this is one of the relatively rare cases where there is absolutely nothing that could possibly be said that could defend Mr Stankovic's statement of claim as a viable pleading. That is the case, irrespective of whether Mr Stankovic turned up or if he obtained the very best of legal representation. 11Consistent with s 56 of the Civil Procedure Act 2005 (NSW), the only way to progress this matter is to strike out Mr Stankovic's statement of claim and then to give him, hopefully with the benefit of legal advisors, sufficient time to assemble a proper pleading so that the proceedings can go forward. 12To adjourn this matter at this point, even for a short period, would inevitably lead to wasted costs and wasted time. It would be in the interests of no-one. 13Accordingly, I order that: (1)Pursuant to Uniform Civil Procedure Rules r 14.28 the statement of claim filed on 25 February 2014 be struck out. (2)I order the plaintiff to file and serve on or before 19 September 2014 any amended statement of claim. (3)I order the proceedings to stand over before the Registrar for directions at 9am on Thursday 25 September 2014. (4)I grant the parties liberty to apply on two days' notice. (5)I order that the plaintiff pay the defendant's costs of his notice of motion. (6)I stay the entry of order (5) up to and including 5 September 2014. (7)I grant the plaintiff liberty to apply to the associate of Beech-Jones J to set aside or vary order (5), such application to be notified on or before 19 September 2014. (8)The relief sought in prayer 2 of the notice of motion is stood over to 25 September 2014 at 9am before a Registrar. (9)I direct the defendant's solicitors to provide this judgment and the orders to the plaintiff and any solicitor who enters an appearance on his behalf.