Stankovic v Peter Michael Magee t/as Armstrong Legal

Judgment 1I have before me three Motions. The first is a Motion by the Defendant filed 6 June 2014, which seeks that the proceedings brought by the Plaintiff be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW); alternatively, that the Amended Statement of Claim be struck out pursuant to r 14.28. 2I have two Motions by the Plaintiff. The first was filed on 30 September 2013 and seeks trial by jury on the proceedings he has brought. The second Motion by the Plaintiff was filed on 9 April and it seeks an order THAT the Court issue a formal statement to clarify a specific point of law as to the definition and application of the word "dismiss" when Judge or Magistrate orders that a case is dismissed. 3The proceedings were commenced on 29 August 2013. They seek damages of $35 million for the professional negligence of the Defendant, who was a solicitor acting for the Plaintiff in Family Court proceedings that commenced in 2006. 4The original Statement of Claim did not comply with the Rules or the proper approach to pleading to enable an understanding of what was complained about and the basis for what was sought. The Defendant's lawyers engaged in correspondence with the Plaintiff and ultimately in a long letter of 22 May 2014 drew the Plaintiff's attention to the various Rules concerned with pleading and set out what they saw as the difficulties with the Statement of Claim as pleaded. The parties then went before the Registrar, who made directions for the filing of an Amended Statement of Claim so that the complaints of the Plaintiff could be properly articulated. 5On 28 May 2014 the Plaintiff filed an Amended Statement of Claim. He identified the amendments by underlining the additional portions of the Statement of Claim. The Statement of Claim pleads the cause of action in this way: 1. From the moment I employed Armstrong Legal to represent me in the Family Court of Australia in matter No SYF 4345 of 2006,1 gave them specific instructions to follow my instructions in total and that I wanted to be present when any discussions took place between other parties. I said that in the Peter Magee office in Level 3, 127 York Street, Sydney, and with me at that moment was Wayne Lawrence as, as he said, my "financial adviser and McKenzie Friend in the Family Law proceedings". And Peter Magee was engaged to work for me on an indemnity basis only. And he agreed then to be paid only when I, Milovan Stankovic, develop build and sell my property in President Road Kellyville and not before. And Peter Magee confirmed that already in this particular case. But he did not honour his duty and care as and Officer of the Court to do what he promised to do. It ought to be noted that, when I met Peter Magee recently when I served him personally with some documents, when come personally out in the hallway on the front of the lifts and we started to discuss what went wrong in my case and I mentioned to him the FRAUD and he said to me, "Michael, what happened to you was wrong and not fair." He continued and said, "Also it is not fair I been working for you and not been paid." And I tell him, "Na. Na. If you did work for me as you agreed I would still have my property." 2. From the beginning I made it known to them that the case in the Land & Environment Court, Case No: 41243 of 2004 Baulkham Hills Shire Council v Milovan Stankovic and Milka Stankovic, was DISMISSED on 16 February 2005 on the front of Justice Lloyd and that the so-called "Costs Order" sealed on 22nd March 2005 and the seal say that and signed by Registrar, Susan Dixon, and this was after the event of the DISMISSAL on 16 February 2005. and not signed by the Judge in that same court and on that same number was TOTAL FRAUD. Susan Dixon was never been in my case as a Judicial Registrar. She was on the Registrar in the registry Office on Level 4 of the land & Environment Court. Peter Michael Magee made no effort to argue this fact in the Family Court which is a serious delection of his Duty of Care as a Court Officer and serious Professional Negligence. I asked peter magee that the two so-called "Trustees" must not be in my case because there is no validity - the case was DISMISSED and, therefore, there is no validity of the "Sequestration Order" or anything at all that could happen after the DISMISSAL. This is a crucial POINT OF LAW and that the Court must answer that specific POINT OF LAW that "DISMISS" means DISMISS. A dismissed case cannot continue on to make any orders whatsoever. I, again, make the request to this Court that this POINT OF LAW be addressed before entering into any discussion or argument. It is in UNIFORM CIVIL PROCEDURE RULES 2005 in section 14.9 that, when a POINT OF LAW is raised, it must be dealt with. 3. When a case is DISMISSED, it is removed form the court with no further hearings. This is a POINT OF LAW that has been ignored by lawyers and judges since 16 February 2005 and must be confirmed by a Court issuing a formal statement clarifying that, "when a case is DISMISSED, it is removed from the court with no further hearings". It is scandalous for Peter Michael Magee or any lawyer or any judge to keep on concealing the FRAUD that happened when this POINT OF LAW was brushed aside. It was wrong for Harrison J to refuse "to do right" on 15 April 2014 when I moved the court to issue a formal statement to clarify that point of law. 4. I told them that my property was not to be sold under any circumstances because I would be doing any development, by myself, and when that is complete, built and sold, by myself only, only THEN would they be paid and not before. And they agreed to work for me under those conditions. And I told Kim Randall and Peter Magee if they don't follow my instructions what they agreed, I will report them to the NSW Law Society. I said this to them when I was in their offices on Level 4, 127 York Street, Sydney. 5. I was there with Mr Wayne Lawrence, as my financial advisor. Kim Randall started to cry when I said that and she said words to the following effect: "Please, Michael, do not report me to the legal society - and continued to cry and I said, in the presence of Wayne Lawrence and herself, "You don't need to worry and cry -just do the right thing what we agreed that my property NOT to be sold, as Justice Cohen, of the Family Court, made Orders for my property not to be sold but, instead, to be developed between two parties, myself and my wife." She promised that she would do the right thing to prepare all of my things for the Family Court what was required from the Judge from the Family Court. She agreed on all that and Wayne Lawrence was there. I also told her NOT to go and pick up my file from Charles Hockey, my previous lawyer, and she agreed she would not. 6. But, for one reason or another, she went and picked up the file from Charles Hockey, instead of me going to pick up the file from Charles Hockey because I knew what I gave to Charles Hockey and she did not. Even today, I do not know did Charles Hockey give her all the documents. And I noticed that in the file she picked up that the Order from Justice Cohen of the Family Court was missing from the file :.. and only the front page from that Judgment. 7. When I complained to her, she said that Judgment was not important and that it was in the past. Wayne Lawrence and I told her exactly what to do to prepare my papers for Justice Watts what Charles Hockey did not want to do it... but, again, for some reason or another, she did not follow instruction and did not give anything to the court what she said she would do, and Justice Watts said he did not have the tools what he asked to be prepared for the hearing and he said, "Well, we will work with what tools we got." And the tools what he got were only what my wife's solicitors prepared for her for the Court. The tools on my side was none. But, instead, she was colluding with the so-called Trustees and her instruction solicitor, Wong. Together they collude with so-called Trustees and my wife's solicitor and Watson & Watson that my property was to be sold. And, because of their action, as I said before, I lost my property of $35,000,000 plus. Therefore, because of their actions and ignorance, failure of Duty of Care I assert my Claim for Damages. The reason for my asking for $35,000,000 is because the property at Kellyville was zoned for 75 dwellings including 4-storeyed units. When I say "zoned" I mean zoned and not "will be zoned". 8. Because of their action and the stress to me not to do the right thing and not to follow my instruction, I collapsed twice in the Family Court and been taken to hospital... once to Prince Alfred ... on one or both occasions, Kimberley Randall come with me in the ambulance. And, even in hospital, I complained things were not going my way, but she said Justice watts was on my side and had adjourned the case for one week while I recovered. She did not even file the documents on the Friday before. 6It is difficult to discern from the amended Statement of Claim quite what it is the Defendant is said to have done or failed to do to give rise to a cause of action. However, my attention has been drawn to an earlier judgment involving the Plaintiff which has clarified the position to some to the extent. 7It appears that the Plaintiff had been involved in proceedings in the Land and Environment Court brought by the Hills Shire Council. A hearing date for those proceedings was fixed for 19 January 2005. The hearing date was vacated and the proceedings were stood over to a later date. On that later date there was no appearance for the Council and Lloyd J made an order that the proceedings be dismissed for want of prosecution. 8Subsequently the proceedings came to be re-listed before Pain J. Her Honour heard the matter, made some substantive orders and ordered that Mr Stankovic pay the costs of the proceedings. The costs were assessed and judgment was entered for the Council in the Local Court for the amount of the costs taxed and assessed. Those costs were not then paid, and that led to the Council serving a bankruptcy notice and ultimately a bankruptcy petition. 9On 12 May 2009 in the Federal Magistrates Court Raphael FM made a sequestration order against the estate of Mr Stankovic. By order 3, he directed that all proceedings under the order be stayed for a period of 21 days. 10Mr Stankovic says that within that 21-day period he paid the costs which had given rise to the bankruptcy notice. He said, however, that those costs were not accepted. There is no evidence precisely of what happened in that regard. Nevertheless, what is apparent from the material before me is that the sequestration order remained in place until Mr Stankovic was discharged from his bankruptcy on 14 July 2012. 11At some later time the Defendant was instructed to act for Mr Stankovic in proceedings in the Family Court concerning his property in President Road, Kellyville. The affidavit read in support of the Defendant's Motion said that prior to the hearing in the Family Court the Defendant had sought, and been granted leave, to withdraw by reason of being unable to obtain instruction from Mr Stankovic. The record of the Family Court shows that by the time the orders were made by the Family Court, Mr Stankovic was acting for himself. He and the trustee in bankruptcy appeared and orders were made by Watts J which, it seems, ultimately led to the property being sold. 12Although it is not apparent from the Amended Statement of Claim, Mr Stankovic tells me that the particular complaints he has against the Defendant is, first, that the Defendant failed to draw the Family Court's attention to the fact that the Land and Environment Court proceedings had been dismissed by Lloyd J, with the result that no costs order could and should have been made. Secondly, the Defendant failed to advise the Family Court that after the date of the sequestration order, Mr Stankovic had paid the costs, with the result that the sequestration order should not have come into effect. 13No challenge was made by Mr Stankovic to the ordersof the Land and Environment Court including the order for costs. No appeal was brought from the orders made by Raphael FM until Mr Stankovic made application to the Federal Court of Australia in 2011, seeking leave out of time to file and serve a notice of appeal from the sequestration order. 14Those proceedings came before Emmett J, who refused leave to appeal on 4 May 2012: Stankovic v Hills Shire Council (No 3) 2012 FCA 523. The background that I have already set out is largely taken from that judgment. Emmett J (as his Honour then was) concluded at [16] that: The material before me does not support any contention that the order for costs made by the Land and Environment Court was incompetent. In any event, as I have said, that matter was not ventilated before Raphael FM. 15On 15 April 2014 Mr Stankovic moved on his Motion filed 9 April 2014 concerning the point of law in relation to the word "dismiss" before Harrison J in this Court. Harrison J delivered a judgment on that day where he declined to make the order sought by Mr Stankovic in the Notice of Motion. Nevertheless, Mr Stankovic sought to re-agitate that Notice of Motion and, in doing so, drew my attention to an extract from the Oxford English Dictionary, the second edition, which identified the meaning of the word "dismissed" especially in relation to its use in legal proceedings. 16The present form of the Statement of Claim has not been pleaded in accordance with the rules or in any way that identifies the true complaints that Mr Stankovic is making. The pleading is embarrassing in the sense of that term in rule 14.28. The principles associated with proper pleading are set out by Schmidt J in Cameron v Qantas Airways Ltd [2010] NSWSC 899, by Johnson J in McGuirk v University of New South Wales [2009] NSWSC 1424 at [21] to [35] and by Hislop J in Bott v Carter [2009] NSWSC 236 at [18]. 17I am entirely satisfied that the present form of the Amended Statement of Claim should not be entitled to stand and should be struck out. However, the question further arises of whether the proceedings should be dismissed under r 13.4 because there is in fact no arguable case that the Plaintiff seeks to make against the solicitors. 18The principles for summary dismissal of a claim are well known and are referred to most particularly in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 to 130 and also by Ward J (as her Honour then was) in McDonald v Grech [2012] NSWSC 717 at [26] to [40]. 19At the time that the solicitors acted for the Plaintiff in the Family Court, Mr Stankovic was a bankrupt. The costs order made by the Land and Environment Court was extant because it had never been challenged. The sequestration order was made on the basis of that costs judgment. Despite that, Mr Stankovic continued to assert before me that the sequestration order was "illegal" and that he was not bankrupt. 20Emmett J detailed the course of events after the making of the sequestration order: [10] ... In fact, his Honour granted a stay of the sequestration order for the maximum period of 21 days. His Honour's reason for doing so was that Mr Stankovic said that all he needed to do to have the loan from the ANZ Bank materialise was to obtain his wife's signature on the documentation and present it to the ANZ Bank. Mr Stankovic said that, if he received payment from the ANZ Bank, he would pay the Council. Raphael FM was not prepared to dismiss the application, but considered that the appropriate course was to make the sequestration order subject to the stay. If the debt had been paid, it would have been open to Mr Stankovic to seek annulment of the bankruptcy. ... [21] ... [I]t is of some significance that, shortly after the making of the sequestration order, Mr Stankovic paid the amount claimed by the Council. He then made two applications to the Federal Magistrates Court. The first was an application to extend the stay ordered by Raphael FM. It appears that on 5 June 2009 Barnes FM refused that application. Her Honour observed that, where there is no appeal, the Federal Magistrates Court has no power to grant a stay beyond the period of 21 days allowed for in s 52(3) of the Bankruptcy Act. Her Honour was not satisfied that she had power to extend the stay beyond the period of 21 days. The significance of that observation is that it might at least have drawn Mr Stankovic's attention to the fact that he may have had a right of appeal. [22] Rather than dismissing the application for an extension of the stay, her Honour considered that the appropriate way to deal with the application was to adjourn the matter to the date for the return of a separate proceeding commenced by Mr Stankovic on 20 May 2009, seeking annulment of the bankruptcy. I have no evidence relating to the application for an annulment, other than that an order was made by Smith FM, on 13 October 2009, that the application for an annulment be dismissed by consent. Thus, it appears that Mr Stankovic had some knowledge of a basis for seeking relief in respect of the sequestration order. 21There was no evidence put forward before me by Mr Stankovic to explain these matters. However, what is clear is that the sequestration order was in place at the time of the Family Court orders. Any failure on the part of the Defendant to inform the Family Court that the Land and Environment Court proceedings had been dismissed, with the result that no costs order could be made and therefore no sequestration order should have been made, and to inform them that he had paid the costs, with the result that the sequestration order should never have come into effect, could not be causal of any loss arising from the Family Court proceedings. The Family Court had no power to make any orders that would affect the costs order in the Land and Environment Court nor any power to annul the bankruptcy. 22Accordingly, it cannot have been as a result of any failures on the part of the Defendant that any loss now suffered by the Plaintiff, which has not been pleaded or identified apart from a claim for $35 million, can be shown to be attributable to the Defendant. 23It seems to me that the claim made by the Plaintiff is entirely hopeless and is doomed to fail. No reasonable cause of action is disclosed. In addition, the Plaintiff has had two opportunities properly to plead his case and has not managed to do so. The proceedings should be summarily dismissed. 24In those circumstances there is no need to consider the Plaintiff's motions. The Plaintiff says that I am obliged to consider the point of law that he says is the basis of the Motion to determine the meaning of the word "dismiss". He draws attention to r 14.19 UCPR. That provision is, however, concerned with pleading. There is no obligation to determine that matter before consideration of other matters or, indeed, in advance of the final hearing. A determination of the meaning of the word "dismiss" would not advance the present proceedings because it would not result in the order of the Land and Environment Court being affected. That is the only reason the Plaintiff raises the matter. 25In those circumstances, the orders I make are: