Frank Raleigh Witt v Kenneth Alan Cox [2006] NSWSC 1427

New South Wales Supreme Court

CITATION : Frank Raleigh Witt v Kenneth Alan Cox [2006] NSWSC 1427

HEARING DATE(S) : 11/12/06

JUDGMENT DATE : 21 December 2006

JURISDICTION : Supreme Court

JUDGMENT OF : Rothman J

DECISION : (i) the plaintiff's Summons filed on 2 August 2006 be struck out; (ii) the proceedings be dismissed; (iii) the plaintiff, Frank Raleigh Witt be declared a vexatious litigant and shall not, without leave of the Court, institute any legal proceedings against Kenneth Alan Cox in any court and that any legal proceedings instituted by the said Frank Raleigh Witt against Kenneth Alan Cox in any Court before the making of this Order shall not be continued by the said Frank Raleigh Witt without leave of the Court; (iv) the plaintiff shall pay the defendant's costs of and incidental to this Motion and of and incidental to these proceedings on an indemnity basis as agreed or assessed.

CATCHWORDS : PRACTICE AND PROCEDURE - strike out application - abuse of process - res judicata - issue estoppel - vexatious litigant order.

LEGISLATION CITED : Legal Profession Act 1987 (NSW) Supreme Court Act 1970 (NSW)

PARTIES : P: Frank Raleigh Witt D: Kenneth Alan Cox

FILE NUMBER(S) : SC 13770/2006

COUNSEL : P: - D: Ms B Harvey (Solicitor)

SOLICITORS : P: - D: Ms B Harvey, Williams Woolf & Zuur Solicitors

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ROTHMAN J.

21 December 2006

13770/2006

Frank Raleigh Witt v Kenneth Alan Cox

JUDGMENT 1 HIS HONOUR: This judgment deals with a Notice of Motion filed by the defendant to strike out the Summons filed on 2 August 2006. The basis of the Motion is that the proceedings are an abuse of process and/or that the Summons discloses no reasonable cause of action. Further orders are sought pursuant to the terms of s84(2) of the Supreme Court Act 1970 (NSW) that the plaintiff in these proceedings be declared a vexatious litigant. 2 Pursuant to directions of the Court, the Motion of the defendant came before the Court on 11 December 2006 at which time the plaintiff did not appear. It seems, consistent with a history of doing precisely this, the plaintiff filed a medical certificate which, the plaintiff suggests, attests to the fact that he is unable to attend the hearing. I made orders that by close of business Wednesday 13 December 2006 the plaintiff file and serve submissions, confined in length, as to why I ought not make orders in accordance with the Notice of Motion. No such submissions have been received. I should add, as a matter of abundant caution, that I caused my Associate to contact the plaintiff and inform him of the orders made. That was done on Monday 11 December 2006.