Combe v Ziade [2000] NSWSC 848

New South Wales Supreme Court

CITATION : Combe v Ziade [2000] NSWSC 848 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20091/00; 20092/00 HEARING DATE(S) : 24 August 2000 JUDGMENT DATE : 29 August 2000

PARTIES : Faye D Combe - Plaintiff/Respondent Anthony Ziade - Defendant/ Applicant JUDGMENT OF : Simpson J at 1

COUNSEL : Mr M J Cohen - Plaintiff/Respondent Mr J Gleeson - Defendant/Applicant SOLICITORS : Middletons Moore & Bevins - Defendant/Applicant CATCHWORDS : Professional negligence - notices of motion pursuant to SCR Pt 13 R 5 that the proceedings be dismissed, in the alternative that they be permanently stayed - further alternative pursuant to SCR Pt 15 R 26 that the proceedings be struck out - duplication of proceedings - abuse of proceedings. LEGISLATION CITED : Family Provision Act Henry v Henry (1996) 185 CLR 571 at 590 Moore v Inglis (1976) 50 ALJR 589 at 591-592 CASES CITED : on appeal 51 ALJR 207 Andrew, Official Liquidator v Baradom Holdings Pty Limited (1995) 36 NSWLR 700 Combe v Ziade [2000] NSWSC 762, unreported DECISION : In each case statement of claim struck out, plaintiff to pay the defendant's costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Professional Negligence List SIMPSON J

29 August 2000

20091/00 20092/00 Faye D COMBE v Anthony ZIADE Judgment

HER HONOUR : 1 By notices of motion filed in identical terms in each of these proceedings the defendant, Anthony Ziade trading as Anthony Ziade and Associates (solicitors) seeks an order pursuant to SCR Part 13 Rule 5 that the proceedings be dismissed, or alternatively an order that they be permanently stayed; and in the further alternative, an order pursuant to SCR Part 15 Rule 26 that the proceedings be struck out. 2 The essential basis for each application is the same; it is that the proceedings constitute an abuse of process because they duplicate proceedings commenced in other jurisdictions, and raise identical, or substantially similar, issues. A further basis for the claim in relation to the proceedings numbered 20091/00 is that they are the subject to issue estoppel. 3 It was common ground that, between about 1990 and 1993, the defendant (as I shall continue to refer to the applicant) acted in his professional capacity for the plaintiff in three sets of proceedings. These were: an application for probate following the death of her father; a related application pursuant to the Family Provision Act 1982, to which the plaintiff was, as executor of her father's will, the nominated defendant, and proceedings in the Family Court of Australia related to the dissolution of the plaintiff's marriage. 4 The statements of claim were filed by the plaintiff herself. In their form they disclose that the plaintiff was, at the time of filing, unrepresented, and from this it may be inferred that she prepared and drafted the statements of claim herself. This creates considerable difficulties in appreciating precisely the causes of action which the plaintiff seeks to plead, but it is quite apparent that the substance of her claim in each case is an allegation that the defendant is liable to her in negligence and/or in contract, and, possibly, (in statement of claim 20091/00) for breach of trust. In each case the plaintiff claims damages, interest and costs. 5 Statement of claim No.22091/00 appears to be predominantly concerned with allegations against the defendant in relation to his representation of her in the Family Court proceedings. However, there are also references to the defendant's representation of, and advice to her in the equity proceedings (as I shall compositely refer to the Probate and Family Provision Act proceedings). The plaintiff pleads that, in relation to the proceedings in the Family Court of Australia, the defendant acted negligently in the discharge of his duty to her, and, (additionally or alternatively) was in breach of the implied terms and conditions of the contract of services which governed their relations. It is to be observed that in this statement of claim the plaintiff also alleges that, on 23 January 1992, she instructed the defendant not further to act for her, but that, in breach of that instruction, the defendant continued to take steps in relation to the Family Court proceedings. In the statement of claim the plaintiff has also purported to provide particulars of "breach of trust". 6 In statement of claim No.20092/00 the plaintiff makes essentially similar claims in relation to the defendant's performance of his duties with respect to the equity proceedings. Once again, the essence of the claim is that the defendant acted negligently and/or in breach of his contract constituted by his retainer. 7 It is these statements of claim that the defendant now seeks to have permanently stayed, dismissed, or struck out, as being, in effect, a duplication of proceedings before other courts. 8 SCR Pt 13 R 5 and SCR Pt 15 R 26 are in the following terms: "13.5 (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). 15.26 (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). 9 It is necessary to outline something of the history of the dealings between the parties.