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. 3 To recount the total history of this matter (and its preceding matters) would be a waste of time and effort but a short and truncated history will suffice for present purposes. 4 The evidence before the Court (and the findings of Courts on prior occasions) make clear that the defendant, Kenneth Alan Cox, was referred to Frank Raleigh Witt, the plaintiff, to obtain advice, inter alia, in a land and environment matter but also in relation to other matters. Various Courts have found that the advice obtained from the plaintiff was legal advice. At the time that the plaintiff provided the legal advice, the plaintiff did not have a practising certificate as either a barrister or solicitor and barrister. At an earlier time, the plaintiff had practised as a barrister but he had discontinued his practice and allowed his practising certificate to lapse. 5 Pursuant to the terms of the Legal Profession Act 1987 (NSW) the defendant in these proceedings sued the plaintiff in these proceedings for recovery of the amount paid by way of legal fees to the plaintiff. Section 48B of the Legal Profession Act 1987 (NSW) provided such a remedy. 6 The suit was taken in the Local Court and came on for hearing before a Magistrate who made orders in favour of the defendant herein on 4 October 2002. The Magistrate had retired on 17 August 2002 and the last hearing date was 16 August 2002. The Magistrate issued no reasons. The proceedings had been commenced by Statement of Liquidated Claim filed on or about February 2001. 7 The proceedings in the Local Court were defended and a Notice of Cross-Claim was filed. The proceedings themselves were heard on 27 June 2002 and 16 August 2002. The transcript is available to the Court and has been read. 8 The plaintiff in these proceedings appealed the order of 4 October 2002 on the grounds that no reasons were given. On 18 August 2003 the matter came before Justice Adams. 9 The authorities being such as they are, the appeal was not opposed and his Honour, by consent, upheld the appeal and quashed the orders of the Magistrate. His Honour made no order as to costs. 10 The matter was remitted to the Local Court and heard by Magistrate Dillon commencing on 24 August 2004. It was part heard and went over to 14 March 2005 for further hearing. On 26 April 2005 his Honour Magistrate Dillon LCM issued judgment of some 60 numbered paragraphs in which he gave verdict for the plaintiff in the sum of $13,000 and judgment accordingly. He also ordered interest to be calculated by the Registrar and reserved the question of costs. Ultimately costs were ordered to be paid by the defendant in those proceedings being the plaintiff in these proceedings. I say, without in any way being patronising, that the judgment of Dillon LCM is a well reasoned and compelling judgment based, predominantly, on findings of fact on the contested evidence before him. I have read the transcript of the proceedings before the learned Magistrate and the reasons for judgment. 11 The judgment was entered on 26 April 2005 and shortly thereafter the plaintiff in these proceedings filed a notice of appeal to the Supreme Court of New South Wales seeking the setting aside of the judgment of the Local Court. 12 That appeal was listed before Registrars and Deputy Registrars on a number of occasions. Directions issued which directions were not complied with by the plaintiff in these proceedings. On or about 26 August 2005 the plaintiff filed a Notice of Motion seeking leave to adduce fresh evidence in the proceedings which, according to the plaintiff, were crucial. The Motion was refused. 13 The matter came before his Honour Justice McClellan CJ at CL on 7 November 2005 in which the solicitor who had previously been representing the plaintiff withdrew, proceedings had been commenced against the solicitors and the matter became even more complicated than had previously been the case. 14 The matter was referred to his Honour Justice Adams who on 5 December 2005 issued judgment in which his Honour ordered that the plaintiff provide a list of any additional evidence sought to be relied upon stating with respect to each document where that document was, so far as the plaintiff is aware, at the time of the hearing before the Local Court, which determined the matter from which the appeal is brought, and in respect of documents not actually produced to the Local Court, where that document was at the time of the hearing and identifying with precision the material from which the existence and location at the relevant time of the document may be inferred. 15 His Honour also ordered that the plaintiff, to the extent that he relied upon the conduct of his solicitor during the proceedings in the Local Court, provide the communications between him and solicitor as to the documents in question and a brief summary of the materiality of the documents upon which the plaintiff sought to rely. 16 Apart from these directions Adams J ordered that the plaintiff provide security of costs by way of lodgement with the Registry in the sum of $10,000 in cash or bank draft in favour of the Supreme Court by the close of business on 9 January 2006. His Honour made a self executing order in the following terms: "In the event of failure to comply with order 1 [the security of costs order], the appeal is struck out with costs. The plaintiff is to pay the defendant's cost of this application." 17 By 9 January 2006 no security for costs had been lodged. 18 On 30 January 2006 by a Motion upon notice the plaintiff purported to seek an extension of time to comply with the security of costs order made by Adams J. By this stage, of course, the self executing order should have already taken effect. The matter was before his Honour Justice James. His Honour delivered judgment in which his Honour declined to vary the orders of Adams J. His Honour said: "I should add that according to the terms of Adams J's orders, the second order [for currently irrelevant reasons the order entered was numbered differently] made by his Honour was a self executing order which in accordance with its terms took effect on or about 9 January. It may be doubted whether it is necessary for me to make any order but I confirm that for more abundant caution I have made the order that I earlier indicated." 19 The order earlier indicated was to the following effect: "In the circumstances I do not propose to interfere with the order made by Mr Justice Adams. Mr Witt was given a period of a month in which to provide security for costs and he failed to comply with that order. I propose to dismiss the present application by Mr Witt to vary Adams J's order of 5 December 2005." His Honour James J also made an order that the plaintiff in these proceedings, Mr Witt, pay the costs of the proceedings. 20 The plaintiff then sought by Statement of Claim orders in the Local Court setting aside the judgment of his Honour Magistrate Dillon made on 24 April 2005. The basis upon which such an order can be sought is, at best, unclear. By Notice of Motion dated 11 May 2006, the current defendant sought to strike out the plaintiffs Statement of Claim pursuant to the terms of Part 14.28 of the Uniform Civil Procedure Rules. For reasons which are unclear, the Local Court gave leave to file an Amended Statement of Claim and the plaintiff filed an Amended Statement of Claim on or about 15 June 2006, leave having been granted on or about 25 May 2006. 21 On 7 July 2006 the Statement of Claim and Amended Statement of Claim were struck out pursuant to Part 14.28 by the Local Court. The Local Court further declared that the proceedings were frivolous and vexatious and an abuse of process. The Local Court Magistrate also ordered that any further proceedings brought by Mr Witt, the plaintiff herein and the plaintiff in the Local Court, involving the same parties or issues would be referred to the Senior Claims Magistrate prior to filing. His Honour explained that such a course required, on the plaintiff seeking to file proceedings, the matter being referred to the said officer before it could be accepted in the Registry. 22 On 2 August 2006 the current Summons in this matter was filed by the plaintiff seeking an order setting aside the decision of Magistrate Maloney of the Local Court which in turn had struck out the Statement of Claim in the Local Court (being the second such proceeding). That Summons was listed before the Court on 28 September 2006 and on that date the defendant filed in Court a Notice of Motion seeking that the Summons be dismissed on a number of bases: (i) that it is filed out of time; (ii) under Part 14.28 of the Uniform Civil Procedure Rules ; (iii) in the alternative to (i) and (ii) above that the Summons be dismissed under Part 13.4 of the Uniform Civil Procedure Rules ; (iv) that the plaintiff be declared a vexatious litigant under s84(2) of the Supreme Court Act 1970 (NSW) and alternative orders and an order for costs. That Motion has been before the Court on a number of occasions notwithstanding that the Motion sought that it be heard instanter. 23 It is abundantly clear from the above proceedings and a reading of the evidence and material that has been adduced in all of the proceedings that the Summons that is now before the Court seeks to re-agitate the issues that have been dealt with by the Local Court on two occasions (if not three) and the Supreme Court on one earlier occasion. 24 This Court, both as an incident of its status as a superior court of record and pursuant to the terms of Part 14.28 of the Uniform Civil Procedure Rules has the power to strike out a pleading if it discloses no reasonable cause of action or is otherwise an abuse of the process of the Court. 25 Further, the Court, again by virtue of its inherent jurisdiction and pursuant to rule 13.4 of the Uniform Civil Procedure Rules may strike out proceedings where they are frivolous or vexatious or disclose no reasonable cause of action or the proceedings are an abuse of the process of the Court. 26 All of the matters raised by the plaintiff in these proceedings have been agitated and are the subject of judgment. The matters raised are res judicata. All of the issues and the proceedings have been determined in earlier proceedings and cannot be re-agitated. Further, to the extent that the proceedings do not fit within the terms of res judicata the issues in the proceedings involve an attempt to re-litigate the issues that were determined explicitly in earlier judicial proceedings and give rise to an issue estoppel. 27 For those reasons, and others, the proceedings are an abuse of the process of the Court and the proceedings and the Summons ought to be struck out. 28 Further, the history, even the truncated history outlined by me in this judgment, disclose a refusal by the plaintiff to accept the adjudication of the Courts and to seek repeatedly to litigate issues that have been determined and upon which costs orders have been made. It is evident from the material that the plaintiff has not complied with those costs orders. In those circumstances it is my conclusion that the proceedings are vexatious, they have been instituted to annoy or embarrass the defendant, are obviously untenably and are manifestly groundless. An order ought to be made under the provisions of s84(2) namely that, without leave of the Court the plaintiff shall not institute any legal proceedings against the defendant in any court and that any such proceedings shall not be continued by the plaintiff without leave of the Court. I make the following orders: (i) pursuant to the terms of Part 14.28 of the Uniform Civil Procedure Rules and/or the inherent jurisdiction of the Court the plaintiff's Summons filed on 2 August 2006 be struck out; (ii) pursuant to the terms of Part 13.4 of the Uniform Civil Procedure Rules and/or the inherent jurisdiction of the Court, the proceedings be dismissed; (iii) pursuant to the terms of s84(2) of the Supreme Court Act 1970 (NSW) 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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