Supreme Court New South Wales Medium Neutral Citation: Martin v Malouf [2021] NSWSC 415 Hearing dates: 21 April 2021 Date of orders: 23 April 2021 Decision date: 23 April 2021 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1. The proceedings against Mr Vardanega, Mr Roberts and Mr Studdart be dismissed. 2. Unless the parties approach to be heard within 7 days, Ms Martin is to bear Mr Vardanega, Mr Roberts and Mr Studdart's costs as agreed or assessed. Catchwords: PROCEDURE – notices of motion – orders dismissing proceedings or striking out statement of claim sought – Rules 13.4 and 14.4 of the Uniform Civil Procedure Rules 2005 (NSW) – statement of claim not properly pleaded – required particulars of serious allegations not provided – whether proceedings time barred – no reasonable cause of action – abuse of process – motion granted – proceedings dismissed. Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 58.1 Evidence Act 1995 (NSW) s 140 Limitation Act 1969 (NSW) ss 11(3), 14, 52, 55 Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.7, 14.8, 14.9, 14.14, 15.1, 15.3, 15.7, 15.8, 15.9 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 Martin v Gow Gates Insurance Brokers Pty Limited Unreported 16 February 2000 Boyd-Boland J Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 Category: Principal judgment Parties: Lynette Martin (Plaintiff) Stephen Vardanega (Third Defendant) Michael Roberts (Fourth Defendant) Nicholas Studdart (Sixth Defendant) Representation: Counsel: Mr D Feller SC (Third, Fourth and Sixth Defendants) Plaintiff: (Self – Represented) Solicitors: Vardanega Roberts (Third, Fourth and Sixth Defendants) File Number(s): 2020/337173 Judgment 1. In 1997 Ms Martin failed in proceedings for common law damages for a back injury which she suffered in 1996, which she had brought in the District Court against her employer Julia Ross Personnel Pty Ltd and the company where she was then working, Gow Gates Insurance Brokers Pty Ltd. Later, two workers compensation proceedings were brought in respect of that injury. The first, which was settled, Ms Martin contends without her knowledge, against Julia Ross Personnel. The second, which was withdrawn, was later brought against Gow Gates Insurance Brokers by Ms Martin herself. 2. Ms Martin commenced these proceedings in November 2020 against her former solicitors Mr Malouf and Mr Kolokossian, principals of Gerard Malouf & Co; Mr Petrovski their employed solicitor; Mr Vardanega and Mr Roberts, principals of Vardanega Roberts, solicitors who acted for the insurer of Julia Ross Personnel; and Mr Studdart, their employed solicitor. 3. By her statement of claim Ms Martin claims $48million compensation for the reduction in her above average income; being forced to live in penury on a government pension and in public housing; loss of her ability to work and live a happy family life for over 24 years; pain and suffering over that time and for continuing and increasing pain and mental stress. 4. The statement of claim itself provides no particulars of Ms Martin's claims. It refers, however, to a 5-page statement which she signed on 3 November 2020; forty-three exhibits, which include documents relating to the earlier proceedings and a 4 November 2020 document, which should thus be considered as forming part of her pleadings. 5. Mr Vardanega, Mr Roberts and Mr Studdart filed a defence in March 2021, denying any liability to Ms Martin or that she is entitled to the relief claimed; contending that her statement of claim does not disclose any reasonable cause of action; involves an abuse of process; and that it was brought outside the applicable limitation period provided by the Limitation Act 1969 (NSW). 6. By an amended motion also filed in March, Mr Vardanega, Mr Roberts and Mr Studdart seek orders under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) dismissing the proceedings as frivolous and vexatious; disclosing no reasonable cause of action and involving an abuse of process. In the alternative, an order under r 14.14 striking out the statement of claim as disclosing no reasonable cause of action, tending to cause prejudice, embarrassment or delay and involving an abuse of process. The motion is supported by an affidavit sworn by Mr Roberts. 7. Ms Martin, who appeared unrepresented, relied on an affidavit she swore on 30 March 2021, in support of her motion, by which she resisted the orders sought. 8. Ms Martin claims that her back injury continues to cause her pain and suffering for which she has never been adequately compensated. By her pleadings she accuses Gerard Malouf and Partners not only of what amounts to negligence, but also of cheating and a deliberate failure to obtain financial compensation for her work injury, with her last attempt to obtain compensation having occurred in November 2003. 9. Ms Martin also claims that Gerard Malouf did not disclose to her an offer of settlement of her common law action, of which she only became aware in 2020 when a copy of the offer was provided to her anonymously and of failing to submit evidence of the acceptance of her workers compensation claim. She also claims to have been "in a stupor over making an appeal" until about June 2020, when she prepared an action for damages of $12million against Gerard Malouf. 10. Ms Martin also claims that Gerard Malouf had not submitted any reports which were in her favour; deliberately selecting reports that gave him the outcome he wanted; of having engaged in doctor shopping and as a result, having bastardised her claim and corrupted the legal system. She also claims that he had cunningly had her sign a document to transfer her compensation claim to a common law hearing, setting her up to lose in the Supreme Court in 2000. 11. Ms Martin also claims that she still has two compensation claims which have never been settled; that she has never received any money, apart from medical expenses; and that one claim remained open, but the other had been settled illegally and should thus be open to her to revisit. She also claimed that a Ms Moroney had been passed off as her, in proceedings before Burke AJ in the Compensation Court. 12. What the pleadings do not disclose is the basis of Ms Martin's claims against Mr Vardanega, Mr Roberts and Mr Studdart. That was explained in her written and oral submissions and affidavit. 13. There Ms Martin advanced various serious allegations, including of Mr Vardanega, Mr Roberts and Mr Studdart conspiring in 2003 with the other defendants to illegally remove her compensation rights against Julia Ross Personnel; co-operating in identity theft; perverting the rule of law to strip her of her workers compensation rights; conspiring to pervert the course of justice by conducting proceedings without her knowledge, approval or presence; fabricating a settlement and admissions; as well as perjury and forgery. Conclusion 1. The onus falling on Mr Vardanega, Mr Roberts and Mr Studdart on their application is a high one. It must be considered in accordance with the approach discussed in General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125; [1964] HCA 69. The General Steel test is particularly stringent and may only result in dismissal of the proceedings at an early stage such as this, where there is no reasonable cause of action disclosed on the pleadings and where it is clear that the plaintiff's case is so untenable, that it cannot possibly succeed. 2. The Court's power to strike out proceedings must thus be exercised with great care, essentially only in cases which are doomed to fail and where no pleading amendment could cure the defect. 3. In the circumstances disclosed on the evidence, I am satisfied that this is such a case and that the order sought dismissing the proceedings must be made. That being consistent with the obligations imposed by s 56 of the Civil Procedure Act 2005 (NSW) on the Court and the parties to "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" and with what the dictates of justice require in the circumstances revealed on the evidence: s 58(1). The claim is not properly pleaded 1. Ms Martin's statement of claim clearly does not comply, as it must, with the requirements of the applicable Rules. If the proceedings themselves were not struck out, Ms Martin's statement of claim would have to be struck out and Ms Martin given an opportunity to replead. 2. The applicable requirements include that a summary of the material facts relied on, not the evidence, must be pleaded: r 14.7. Pleadings must also be as brief as the nature of the case allows: r 14.8. It is the effect of a document or words spoken which must be pleaded, with a mere reference to the existence of a document not being sufficient: r 14.9. The pleadings must also give such particulars of any claim necessary to enable the opposite party to identify the case that the pleading requires him or her to meet: r 15.1. Particulars of alleged fraud, misrepresentation or breach of trust must also be given: r 15.3. 3. If aggravated or exemplary damages are claimed, as they here seem to be, the facts and circumstances relied on to establish that claim must also be stated: r 15.7 and r 15.8. If particulars are given in a separate document, they must also be filed with the pleading: r 15.9. 4. The real question lying between the parties is, however, whether orders should be made under r 13.4, striking out the proceedings against Mr Vardanega, Mr Roberts and Mr Studdart. Why the proceedings against Mr Vardanega, Mr Roberts and Mr Studdart must be struck out 1. Ms Martin's seemingly extravagant claim for $48million damages, made without provision of any particulars of the basis upon which such an order could conceivably be made against Mr Vardanega, Mr Roberts and Mr Studdart, itself tends to support the conclusion that her claims against them, her former employer's solicitors, are frivolous or vexatious and involve an abuse of process. 2. After all, even in the District Court proceedings which Ms Martin pursued unsuccessfully in 1997 against Julia Ross Personnel and Gow Gates Insurance Brokers, she claimed damages of only $750,000. How the claimed damages could conceivably be awarded in her favour, is not apparent on her defective pleadings. 3. Ultimately the conclusion that Mr Vardanega, Mr Roberts and Mr Studdart have met the onus which fell upon them was unavoidable, given the evidence and the case Ms Martin finally advanced at the hearing. The position then revealed, in short, included that: 1. Ms Martin's common law damages claim against Julia Ross Personnel and Gow Gates Insurance Brokers failed in 2000 in the District Court, because the evidence of a Ms Moroney, with whom Ms Martin had worked at Gow Gates Insurance Brokers, about the weight of boxes which Ms Martin claimed had resulted in her back injury when she had to lift them while at work, was preferred over that of Ms Martin: Martin v Gow Gates Insurance Brokers Pty Limited ( District Court (NSW) Boyd-Boland J, 16 February 2000, unrep). There was no appeal from that decision, with the result that it bound Ms Martin. 2. Ms Martin's case was that she was not aware until 2020 that in 2003 workers compensation proceedings had been pursued against Julia Ross Personnel by Gerard Malouf and settled without her knowledge or authority. In her March 2021 affidavit, Ms Martin said that she had attended the District Court in December 2003, when she was told that there was no money for her. She then signed a document as applicant, dated 11 September 2003, which she did not read, understanding she was signing it in order that Gerard Malouf & Partners could receive $50,000. 3. There was no such document in evidence and no proceedings on foot in the District Court in 2003. But the making of such a payment could be consistent with the settlement, in September 2003, of the workers compensation proceedings brought against Julia Ross Personnel, the terms providing for the payment of Ms Martin's costs, after assessment. 4. Those workers compensation proceedings had been defended by an estoppel argument. On 11 September 2003 when the matter was listed for hearing before Burke AJ, the Court was eventually advised that the matter had settled, on terms which also included payment of Ms Martin's s 60 expenses, agreed at $9,400. Ms Martin was then represented by counsel Mr Beale and Mr Petrovski, but claims she was not present in court or aware of the proceedings or settlement. Consent orders were made that day and later advised by the Court to Ms Martin, but not at her then current address. 5. In evidence is the admissions document, on its face signed by Ms Martin on 11 September 2003, which was provided to the Compensation Court with other documents signed by her counsel and solicitor that day, when the orders were made. Ms Martin contends that her signature was forged, even though she had the document examined by a handwriting expert, who on her account, could not detect such a forgery. 6. Ms Martin later herself commenced workers compensation proceedings against Gow Gates Insurance Brokers. In her application she said, "I feel my solicitors have not made any attempt to resolve any dispute professionally". This is consistent with Ms Martin having had knowledge of the compensation proceedings earlier brought against Julia Ross Personnel, as well as the District Court proceedings, as was a letter sent to her by Gerard Malouf on 21 January 2004. 7. That letter said: "Re Your Workers Compensation Claim We refer to the above matter and to the settlement of your Workers Compensation Claim in accordance with your instructions. Please find enclosed a cheque made payable to you for the amount of $8,460.00. You will recall that the matter was settled for a figure of $9,400.00. The insurer has forwarded, in accordance with the Law, 10% of the settlement monies that is, $940.00 to the Health Insurance Commission (Medicare). As had been advised to you, the settlement amount related to the part payment of those medical and treatment expenses that related to your injuries. As the settlement cheque is drawn in your favour, you will be responsible for attending to payment of all the outstanding treatment expenses in this matter." 1. Ms Martin had by then instructed another firm of solicitors, Kerrisons, to represent her. Mr Studdart advised Kerrisons on 21 January 2004 when the Gow Gates Insurance Brokers proceedings were discontinued, that costs would not be sought against Ms Martin, but that in any future proceedings brought against either Gow Gates Insurance Brokers or Julia Ross Personnel, they would not be so generous. 2. Ms Martin obtained Gerard Malouf & Partners files in 2007, but on her account did not examine them until 2020. She only that year became aware that a settlement offer had been made to her in the 2000 proceedings which she claimed had also been concealed from her. Her delay in bringing these proceedings, she claimed, was the result of ill health. This also had the result that it was only in 2020 that she sought and obtained access to the 2003 Compensation Court file concerning Julia Ross Personnel. It was there that she found the document where she believes her signature was forged. 3. Despite this Ms Martin has taken no steps to seek to have the 2003 consent orders with which she now takes issue, set aside. That they would be set aside, given her acceptance of the agreed payment, seems doubtful. 4. The serious allegations which Ms Martin seeks to pursue against Mr Vardanega, Mr Roberts and Mr Studdart, with whom she has never had any professional relationship are properly summarised, she agreed to be: "a. that all of the defendants commenced and maintained the Compensation Court proceedings without the Plaintiff's knowledge, instructions or authority and without her participating in any way in the proceedings; and b. that at some unspecified point in time the First and Second Defendants on the one hand, the Third and Fourth Defendants on the other induced their respective employees the Fifth and Sixth Defendants to conspire and subvert the course of justice in the Compensation Court in connection with the proceedings." 1. Ms Martin's evidence and submissions establish that her claims finally rest on opinions she has formed: 1. of documents which refer to her as if she had been present in the Compensation Court on 11 September 2003; 2. that there was no proof that she was aware of those proceedings, present that day, participated in the hearing or aware of the outcome; 3. that there was also no evidence that she had given instructions to commence, prosecute or settle the claim against Julia Ross Personnel; 4. that her signature was forged and that she was cheated of her compensation entitlement against Julia Ross Personnel; 5. that Gerard Malouf and Partners had failed to properly represent her in the proceedings in 2000 and did not contact her until December 2003; 6. that on 11 September 2003 the defendants conspired to pervert the course of justice by conducting proceedings without her knowledge, approval or presence; 7. that Mr Vardanega, Mr Roberts and Mr Studdart may not have been aware of this perversion before the hearing, but had since December 2020 denied that perversion in 2003; 8. that Mr Petrovski and Mr Studdart prepared and signed documents in a fabricated compromise settlement of the workers compensation proceedings of $9,400, when Gerard Malouf had valued her claim at $750,000 in 1998; 9. that they had also fabricated her admissions and witnessed the forgery of her signature by a yet to be identified person, even though in earlier documents she had claimed that person to have been Ms Moroney, because she had been required to attend the Compensation Court to give evidence on 11 September; 10. that her counsel Mr Beale and Julia Ross Personnel's counsel Ms Moore had also witnessed the forgery; 11. that there was strong circumstantial evidence that she had later renewed her compensation claims against Julia Ross Personnel and Gow Gates Insurance Brokers in November 2003. 1. I am satisfied, however, that Ms Martin's submission that the January 2004 letter from Gerard Malouf did not refer to a hearing and thus did not put her on notice that workers compensation proceedings had been brought and settled cannot be accepted, given the terms of the letter itself. 2. It is relevant that Ms Martin was then represented by another firm of solicitors, who had advised Mr Studdart that Gerard Malouf's files were being pursued. Ms Martin says she did not obtain those files until 2007. However, there is no issue that while so represented she accepted the 2004 cheque forwarded to her by Gerard Malouf, without enquiry or complaint about the settlement of her worker's compensation claim. That is not consistent with her having then had no knowledge of the workers compensation claim which had been pursued against Julia Ross Personnel and settled by the payment which she then accepted. 3. That Ms Martin had also herself commenced proceedings against Gow Gates Insurance Brokers, rather than Julia Ross Personnel, her employer, after that settlement was also consistent with such knowledge, particularly given what she said about her dissatisfaction with Gerard Malouf in her application. 4. When this is considered together with the serious claims which Ms Martin now wishes to advance against Mr Vardanega, Mr Roberts and Mr Studdart, on the basis of opinions she has formed of documents she first examined in 2020, that her claims against them have any prospects of success is impossible to see. 5. Nothing that Ms Martin has advanced provides any basis for the conclusion that they knew or should even have suspected that the workers compensation proceedings against Julia Ross Personnel, which it defended as it was entitled to do, were initiated without her authority, taking her case at its highest. Let alone that it was settled by her lawyers without her authority, with her signature on documents then provided to the Court being forged. 6. That the workers compensation claim brought against Julia Ross Personnel was defended on the basis of the findings made against Ms Martin in the District Court, also provides no support for her claims. That was a defence plainly available to Julia Ross Personnel in the circumstances. Nor does a settlement which effectively accepted that Ms Martin's further claim was estopped because of what was decided in those proceedings, apart from some limited medical expenses. 7. The result, a payment of those medical expenses and Ms Martin's costs was plainly of advantage to her, consistent with her accepting the agreed expenses and not at the time challenging the basis upon which they were obtained or making any other complaint about the settlement. Even today she remains bound by that settlement, having taken no steps to challenge the orders made in 2003 by the Compensation Court. 8. This situation simply provides no foundation for the serious allegations which Ms Martins seeks to advance against Mr Vardanega, Mr Roberts and Mr Studdart. It is relevant to note that the onus would fall on her to prove her claims on the balance of probabilities: s 140 Evidence Act 1995 (NSW). Given the serious nature of those allegations, that onus would have to be approached in light of what was decided in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363; [1938] HCA 34, followed in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66. 9. In a civil case such as this the strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what is sought to be proved. Thus in this case account would have to be taken of the "conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.": Neat Holdings at [47]. 10. It is apparent from the evidence on which Ms Martin seeks to advance her very serious claims against Mr Vardanega, Mr Roberts and Mr Studdart, that even taking her case at its highest, she has no reasonable cause of action against them. In the result the case which they advance on their application, must be accepted. Are the proceedings time barred? 1. It is not necessary to decide the motions on this basis, even though in the circumstances finally advanced by Ms Martin, it is difficult to see how these proceedings are not time barred. 2. The Limitation Act required that they be brought within six years running from the date on which her cause of action first accrued in 2003, when the disputed workers compensation proceedings were brought and, on her case, wrongfully settled: s 14. 3. Given that Ms Martin alleges fraud, however, s 55 also arises. It provides that the time which elapsed after this limitation period commenced to run and before the date on which she first discovered, or may with reasonable diligence have discovered the fraud, does not count in the reckoning of the limitation period. 4. That time would appear to be when Ms Martin received the January 2004 letter from Gerard Malouf advising her of the settlement and accepted the payment made to her by a cheque made in her favour, which accompanied the letter. Or at the latest, when she obtained the Gerard Malouf file in 2007. That was a time when she could also undoubtedly have obtained access to the Court file, by pursuing steps then available to her. 5. That Ms Martin did not pursue any steps to obtain the Court file until 2020, when she also first looked at the Gerard Malouf file, does not provide a basis for the conclusion that with reasonable diligence she could not have discovered the fraud she now seeks to allege against Mr Vardanega, Mr Roberts and Mr Studdart, until 2020. 6. To the contrary, given the 2004 letter, her acceptance of the accompanying payment and that Ms Martin has had the Gerard Malouf file since 2007, time to bring these proceedings appears long to have expired. 7. Section 52 may also conceivably arise, providing as it does that in the case of a person who suffers a disability, the running of the limitation period is suspended for the duration of the disability. Section 11(3) provides for when a person is under a disability, including while for a continuous period of twenty-eight days or upwards, he or she is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action by reason of "any disease or any impairment of his or her physical or mental condition". 8. That was not a question which the parties addressed and Ms Martin's health was but little dealt with in the evidence. It follows that a concluded view about any possible disability should not be formed, especially given that Ms Martin appeared unrepresented. Costs 1. The usual orders under the Rules is that costs follow the event. In this case that is an order that Ms Martin bear Mr Vardanega, Mr Roberts and Mr Studdart's costs as agreed or assessed. 2. Unless the parties' approach to be heard within 7 days, that will be the Court's order. Orders 1. In the result I order that: 1. The proceedings against Mr Vardanega, Mr Roberts and Mr Studdart be dismissed. 2. Unless the parties approach to be heard within 7 days, Ms Martin is to bear Mr Vardanega, Mr Roberts and Mr Studdart's costs as agreed or assessed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2021