Stankovic v Hockey

Judgment 1On 25 July 2014, Beech-Jones J struck out a statement of claim that had obviously been prepared by the plaintiff without legal assistance: see Stankovic v Hockey [2014] NSWSC 1019. A further order contained in the motion then before his Honour, seeking to have the proceedings as a whole dismissed, was not pressed at that stage by counsel for the defendant. 2The plaintiff filed an amended statement of claim on 11 August 2014. That document is very largely a replication of the preceding document. Because that material appears in the judgment of his Honour, I shall not repeat it. Additionally, a portion of the preceding statement of claim that had been hand written became typewritten; the first pleading was also supplemented by a number of paragraphs that were as follows: [7] The deceit that Charles Hockey is embroiled in extended to the Judiciary as a whole because every time I raise the POINT OF LAW, that when a case is DISMISSED it is removed from the court with NO further hearings, every Judge REFUSES to address it BECAUSE ever since 16th February 2005, one after another Australian Judges in the Land & Environment Courthave [sic] VIOLATED that LEGAL PROCEDURE beginning with Her Honour Justice PAIN on 14th March 2005 and in the NSW Supreme, Local and District Courts have DISREGARDED that DISMISSAL. This constitutes FRAUD UPON THE COURT. [8] It is IMPERATIVE that this case been determined by TRIAL BY JURY so that ordinary men and women can and will deliver JUSTICE based on the TRUTH ... and that TRUTH is that the case in the Land & Environment Court was DISMISSED on 16th February 2005 ... And because that case was DISMISSED all subsequent cases are automatically a MOCKERY and allowed the scandal of an UNLAWFUL BANKRUPTCY against me with my property being STOLEN. [9] Charles Hockey is deeply involved in this DECEIT. (In oral and written submissions, the plaintiff made clear that his insistence on trial by jury was based upon Magna Carta.) 3Before me, counsel for the defendant pressed the order that had been held in abeyance before Beech-Jones J. (As a matter of strict formality, the notice of motion containing the proposed order now pressed referred to the first statement of claim and not the amended one, but I am satisfied that nothing turns on that technicality, and that the plaintiff well understood the order for which the defendant was contending before me.) Counsel for the defendant submitted that the proceedings should be struck out pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("the Rules") on two bases. The first was that the amended pleading suffers from the same defects as the first pleading; indeed, it could be said that the additions caused it to be even less satisfactory. The second basis is that, to the extent that the claim of the plaintiff is intelligible, it is doomed to failure, because the defendant is protected by the well-known advocate's immunity discussed in Giannarelli v Wraith [1988] HCA 52; 165 CLR 543 and D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1. 4The plaintiff appeared before me in person in order to resist the motion. He informed me that he is homeless, unable to write other than "phonetically", and has been seeking legal representation for many months. The written submissions that he filed were intemperate in their references to the defendant and to the judiciary generally. As one would expect, his oral and written submissions were repetitive and discursive to a large degree. Nevertheless, he was able to present his oral submissions (which were provided with some structure by my questioning) in a way that was in the main courteous and coherent. 5To state my understanding of the claim of the plaintiff succinctly, some years ago a local council obtained a judgment debt against him for over $25,000. Based upon that debt, the Council had the plaintiff declared bankrupt. The plaintiff sought to have that bankruptcy annulled. At the time, the defendant was his solicitor. According to the plaintiff, the defendant agreed in a consent order dismissing the application for annulment of the bankruptcy without the knowledge or instructions of the defendant. That was done, so it was said, as part of a conspiracy to damage the interests of the plaintiff. As a result of that step having been taken by the defendant, the plaintiff lost some valuable real property. If that had not occurred, the plaintiff would have been able to subdivide that property with a resultant profit approaching $35 million. 6So much was able to be discerned with reasonable clarity. But that could occur only after reflection upon the amended statement of claim, the written submissions filed by the plaintiff in opposition to the motion, his oral submissions, as I have said, provided with a structure by my questioning, and indeed the appropriate assistance to me of counsel for the defendant. 7In support of the order sought, counsel for the defendant submitted that his client had not acted precipitously: in the past he had not sought to have the proceedings brought to an end, but rather merely to be provided with a proper pleading. The plaintiff having been afforded an opportunity to re-plead some months ago, the proceeding should at this stage come to a close, pursuant to r 13.4 of the Rules. 8If I were against counsel for the defendant with regard to that first submission, his contingent submission was as follows. He accepted that it is tolerably clear that the allegation of the plaintiff is not that the defendant acted negligently, but rather that the defendant agreed to have the annulment application dismissed with the deliberate intention of damaging the interests of his client; indeed, pursuant to a conspiracy to do so. Counsel for the defendant submitted that I would accept at this interlocutory stage that the well-known advocate's immunity extends beyond the tort of negligence to intentional torts of lawyers as well. In support of that submission, he relied upon obiter dicta of Ward JA (with whom Bathurst CJ agreed, Emmett JA not deciding this point) in Young v Hones [2014] NSWCA 337 at [228], where her Honour said "there is no reason to conclude that advocate's immunity does not apply to conduct which is mala fide". Counsel for the defendant submitted that, just as the immunity of a witness from civil suit extends to deliberate lies told in the witness box, so it is that the advocate's immunity extends to civil wrongs done deliberately; he referred to Cabassi v Vila [1940] HCA 41; 64 CLR 130. 9Finally, as for costs, counsel for the defendant submitted that, if he were successful before me, costs should follow the event in the usual way. However, he accepted that, if it be the case that the plaintiff is truly homeless and living in his truck, such an order could well be futile in serving to protect the interests of his client. 10In response, the submissions of the plaintiff may be summarised as follows. 11As for the inadequacy of his pleadings, they are able to be understood by a layperson, let alone a lawyer. Due allowance should be made for the fact that he is a citizen seeking to obtain justice without the benefit of legal assistance. 12As for the extent of advocate's immunity, it cannot be the case that it extends to allegedly corrupt and deliberate acts undertaken by a lawyer with the express intention of damaging the interests of his or her client. 13As for his reliance upon Magna Carta, whatever else it may mean it surely means that an ordinary citizen is entitled to seek justice in the Supreme Court of New South Wales. 14Turning to my determination, I consider that the amended statement of claim suffers from the same defects identified by Beech-Jones J. As I have said, the new document is very largely a replication of the preceding statement of claim. 15To my mind, the supplementation by way of the three new paragraphs does nothing to solve the problem. It is inconceivable that the defendant can be called upon to file a defence to the pleading under consideration. Nor can it be the case that the matter can thereafter proceed to trial on that document as it currently stands. 16In short, I accept the submission of counsel for the defendant that the amended statement of claim remains unsatisfactory in the sense that it "has a tendency to cause prejudice, embarrassment or delay in the proceedings": r 14.28(1)(b) of the Rules; see the summary of "embarrassing pleadings" in the judgment of Johnson J in Mcguirk v the University of New South Wales [2009] NSWSC 1424 at [30]-[35]. 17I have reflected upon whether the proceedings should be brought to a close on this discrete basis, in accordance with the order that counsel for the defendant seeks. I have come to the view that that could be unduly peremptory. In discussion, the plaintiff expressed a readiness to obtain free legal advice (if the statements he made from the Bar table are to be accepted, there is no prospect of him being in a position to pay for it). I think it is possible that within the next several weeks he may be able to persuade a lawyer who does not require fees to take his case and to draft a further amended statement of claim in proper form. 18As for the second basis for the order, I have no difficulty accepting the submission of counsel for the defendant that the advocate's immunity protects a lawyer from proceedings in negligence with regard to work done in court, or closely connected with court. But I regard it as more controversial to say that a client could never sue his or her lawyer for deliberate wrongdoing in court or connected with court. When I posited in discussion with counsel a completely hypothetical example of a barrister appearing as defence counsel in a criminal trial who corruptly takes money in return for deliberately representing his or her client incompetently, with the result that the client is imprisoned for many years, counsel for the defendant submitted that, even in those extreme circumstances, there could be no successful civil proceedings against the barrister. I regard that submission as, at the least, contestable. And I would, with the greatest respect, require more than the brief obiter dicta of a majority of the Court of Appeal to be affirmatively satisfied of the proposition to a sufficient degree to dismiss the proceedings at this very early stage. 19In the circumstances that I have outlined, I am prepared to strike out the amended statement of claim pursuant to r 14.28 of the Rules. I am not prepared to dismiss the proceedings pursuant to r 13.4 of the Rules. In short, I consider that the plaintiff should be given one final chance to obtain legal advice and put his pleadings into proper form. 20However, if it be the case that the plaintiff files a further unsatisfactory pleading and the defendant thereafter seeks to have the proceedings dismissed, I do not think that the defendant should be put to the trouble and expense of filing a further motion. I consider that the best way to advance this matter is to stand the order sought before me over, with an eye to permitting the defendant conveniently to rely upon it if any further pleading is unsatisfactory. 21In light of my determination, I think that the plaintiff should have four weeks from today to file a further pleading; thereafter the matter should return promptly to the Registrar's list. 22As for costs, I propose to exercise my discretion pursuant to s 98 of the Civil Procedure Act 2005 (NSW) to make no order with regard to the costs of the proceedings before me. I do so for three reasons. First, the defendant has not been entirely successful upon the motion. Secondly, a costs order is very likely to be futile in any event. Thirdly, without expressing the slightest opinion about the merits of the case, I accept that the plaintiff is an unrepresented citizen who sincerely believes that he has suffered a serious wrong. I also accept that he is doing his best to right that alleged wrong through his repeatedly unsuccessful efforts at pleadings. In the circumstances, on this occasion I am not prepared to order costs against him. Orders (1)The plaintiff's amended statement of claim filed 11 August 2014 is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules. (2)The plaintiff is to file and serve any further amended statement of claim on or before 21 November 2014. (3)The proceedings are stood over before the Registrar for directions at 9am on Friday 28 November 2014. (4)The relief sought in prayer 2 of the notice of motion filed 19 May 2014 is stood over to 28 November 2014 at 9am before the Registrar. (5)No order as to the costs of the proceedings before me.