Federal Court of Australia

Patial v Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants [2022] FCA 662

ORDERS

THE COURT ORDERS THAT:

Statement of Claim

1.    The Statement of Claim filed on 29 September 2021 be struck out.

2.    The Statement of Claim be removed from the Court file.

Further Statement of Claim

3.    The applicant may serve, by 30 June 2022, a draft further Statement of Claim which addresses only:

(a)    a claim against the second and third respondents of the kind referred to in Part N of the former Statement of Claim; and

(b)    claims of the kind referred to in Part P of the former Statement of Claim.

4.    If the applicant serves a draft further Statement of Claim in accordance with Order 3, then the respondents are to notify the applicant by 14 July 2022 whether they consent to the filing of the draft further Statement of Claim.

5.    If the respondents consent to the filing of the draft further Statement of Claim in accordance with Order 4, then the applicant is to file and serve the further Statement of Claim by 21 July 2022.

6.    If the respondents do not provide consent to the filing of the draft further Statement of Claim in accordance with Order 4, then the applicant is to file and serve by 21 July 2022:

(a)    any application to file the further Statement of Claim; and

(b)    an affidavit in support of any such application.

Costs

7.    The respondents are to file and serve by 30 June 2022:

(a)    any written submissions on costs (of no more than 3 pages); and

(b)    any evidence in support of those submissions.

8.    The applicant is to file and serve by 14 July 2022:

(a)    any written submissions in response on costs (of no more than 3 pages); and

(b)    any evidence in support of those submissions.

9.    The respondents are to file and serve by 21 July 2022 any submissions in reply (of no more than 2 pages).

10.    Unless the Court otherwise orders, the question of costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GOODMAN J

INTRODUCTION

1    By Interlocutory Application dated 23 December 2021, the respondents seek:

(1)    an order for the summary dismissal of the proceeding; and

(2)    alternatively, an order striking out the applicant’s Statement of Claim in whole or in part.

BACKGROUND

2    The applicant is a legal practitioner, practising in Parramatta. He is the principal solicitor of Santosh Lawyers and Consultants.

3    Mr Amit Pall is also a legal practitioner practising in Parramatta. Mr Pall is the sole director of:

(1)    the first respondent. The first respondent trades as Kailash Lawyers and Consultants and Mr Pall is the principal solicitor within that practice;

(2)    the second respondent, which trades as a real estate company; and

(3)    the third respondent, which trades as a property development company.

4    On 17 April 2019, the applicant (referred to as Prateek) and the first respondent (referred to as Kailash) executed a document titled “Agreement for General Use”. The Agreement included:

RECITALS

A.    The purpose of this agreement is to note the obligations of each party as agreed so that no confusion arises in the future.

B.    Kailash Lawyers Pty Ltd is an incorporated legal practice operating at Suite 409, Level 4, 55 Phillip Street, Parramatta NSW.

C.    Prateek has finished his legal training and post admission presently gaining supervised experience at Kailash.

OPERATIVE PART

...

2.    Operative Provisions

(a)    It is expressly understood and agreed between Prateek and Kailash that:

i)    Prateek is going to undertake his supervised legal training with Kailash for 12 months (or any other time agreed between the parties) of the date of this agreement;

ii)    Kailash has agreed to provide the supervised training in the legal areas the practice undertakes legal work;

…

vi)    It is expressly understood and stated that the parties do not form an employer-employee relationship. Kailash do not owe any employer obligations towards Prateek including but not limited to remuneration, salary, superannuation etc. The pure and simple objective of this agreement for the parties is conduct and receive supervised training with certain benefits to both the parties arising out of this relationship.

vii)    To provide training, infrastructure and related resources, Kailash shall charge 60% of the gross professional fee (excluding disbursements) generated by Prateek up to the total income of $100,000 per annum. Should the fee grow above $100,000.00 per annum in the increments of $10,000, the Kailash percentage shall decrease to 50% of the gross professional fee (excluding disbursements) on anything above $100,000, in the increments of $10,000;

viii)    The term of this agreement is for one year from the date of this agreement. To provide certainty to the agreement, this is an essential term

…

(emphasis added)

5    Pursuant to the Agreement the applicant sent invoices to the first respondent for a percentage of the professional fees generated by the applicant.

6    On 28 August 2020 Mr Pall, on behalf of the first respondent, sent an email to the applicant purporting to terminate the Agreement.

7    On 4 September 2020, the applicant filed an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (FW Act) in the Fair Work Commission. The first respondent was the only respondent to that application.

8    On 9 and 30 March, 20 April and 20 May 2021, Commissioner McKenna of the Commission heard the application and, on 6 August 2021, she dismissed it: Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2021] FWC 4167.

9    On 20 August 2021, the first respondent filed an application with the Commission for an order that the applicant pay its costs.

10    On 22 August 2021, the applicant wrote to the first respondent’s then legal representative demanding that the first respondent withdraw its costs application and pay his “outstanding wages”, failing which the applicant would commence a proceeding in this Court. That correspondence also threatened proceedings against the first respondent’s then solicitor and his firm.

11    On 26 August 2021, the applicant wrote directly to the first respondent offering to withdraw his appeal and to not commence a proceeding in this Court if the first respondent withdrew its application for costs in the Commission.

12    On 27 August 2021, the applicant sought leave to appeal the Commissioner’s decision.

13    On 29 September 2021, the applicant commenced this proceeding by filing an Originating Application and Statement of Claim.

14    On 8 October 2021, a Full Bench of the Commission heard the applicant’s application for leave to appeal. On 24 November 2021, the Full Bench dismissed that application: see Prateek Patial v Kailash Lawyers Pty Ltd T/as Kailash Lawyers and Consultants [2021] FWCFB 6055.

15    On 23 December 2021, the respondents filed the Interlocutory Application now before the Court. As noted above, the respondents seek the summary dismissal of the proceeding and in the alternative an order striking out the Statement of Claim in whole or in part.

16    On 18 March 2021, that application was heard.

17    Following the hearing, the applicant sought an opportunity to adduce further evidence on the application directed to proving that work he did and which is described in Part N of the Statement of Claim (and discussed below at [44]-[49]) was undertaken for the second and third respondents. I listed the matter for a case management hearing on 30 March 2022, and on that day, I made a series of directions for the applicant to file any application to adduce further evidence, together with any evidence in support of that application, by 11 April 2022; for the respondents to file and serve any evidence on such an application by 20 April 2022; for evidence in reply; and for submissions.

18    On 1 April 2022, the proceeding was relisted at the instigation of the respondents. At that hearing, Counsel for the respondents drew my attention to a submission he had made to the effect that there was no evidence to suggest that the second or third respondents were in any way contractually related to the applicant and formally withdrew that submission in so far as it applied to the second respondent only.

19    The applicant twice sought to file an interlocutory application in accordance with the directions made on 30 March 2022. The proposed interlocutory application travelled well beyond the leave given on 30 March 2022 and was accompanied by an affidavit in the order of 300 pages. The interlocutory application was rejected by the Registry of the Court as it fell outside of the leave that had been given. I explained this to the parties at a case management hearing on 29 April 2022.

LEGAL FRAMEWORK

Summary dismissal

20    The respondents rely upon s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth).

21    Section 31A provides in so far as is presently relevant:

31A    Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

…

22    Rule 26.01 provides in so far as is presently relevant:

26.01    Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

…

Strikeout

23    The respondents rely upon r 16.21, which provides:

16.21    Application to strike out pleadings

(1)    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)    contains scandalous material; or

(b)    contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)    is otherwise an abuse of the process of the Court.

(2)    A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.

CONSIDERATION

24    It is convenient to start by considering whether, and if so, to what extent, the proceeding is an abuse of the process of the Court.

25    The categories of abuse of process are not closed: Sea Culture International Pty Ltd v Scoles [1991] FCA 523; (1991) 32 FCR 275 at 279 [12] per French J (as his Honour then was); Walton v ACN 004 410 833 Limited (formerly Arrium Limited) (in liq) [2022] HCA 3; (2022) 96 ALJR 166 at [93] per Gageler J.

26    Whilst an exhaustive definition of what will constitute an abuse of process is not available, many instances of abuse will exhibit at least one of the following characteristics: the invocation of the court’s processes for an illegitimate or collateral purpose; the use of the court’s procedures in a manner which would be unjustifiably oppressive to a party; and the use of the court’s procedures in a manner that would bring the administration of justice into disrepute: PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 at [3] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Walton at [93] per Gageler J.

27    The power to stay or dismiss a proceeding on the basis that it is an abuse of process is a power that is to be exercised sparingly and only in exceptional cases: Sea Culture at 279 [12] and the authorities there cited; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); Clarke v Nursing and Midwifery Council of New South Wales [2019] FCA 1782 at [80] per Flick J, and the authorities there cited.

28    Matters informing the exercise of the discretion to stay or dismiss a proceeding on the basis of an abuse of process include the objectives described in s 37M of the Act: UBS AG v Tyne as Trustee of the Argo Trust [2018] HCA 45; (2018) 265 CLR 77 at 92 [34] (Kiefel CJ, Bell and Keane JJ) and 125-126 [128] (Gordon J); Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; (2019) 273 FCR 350 at 391 [125] (Jagot and Mortimer JJ); as well as finality, fairness and the maintenance of public confidence in the administration of justice: UBS AG at 127 [136] per Gordon J and the authorities there cited.

29    These considerations arise squarely where a dispute or an issue has already been determined by earlier proceedings in a Court or Tribunal. In Coffey v Secretary, Department of Social Security [1999] FCA 375; (1999) 86 FCR 434, von Doussa, Branson and Sundberg JJ said 443 [25]:

[25]    An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding did not give rise to a res judicata or issue estoppel. See Sea Culture International v Scoles (1991) 32 FCR 275 at 279 and Walton v Gardiner (1993) 177 CLR 378 at 393-4. Whether it does depends on the facts of the particular case. …

30    As the Full Court noted in Coffey at [25], it is necessary to consider the particular features of the case at hand. In doing so, useful guidance is found in the decision of Giles CJ (CommD) as his Honour then was, in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 at 64,089:

It is apparent from this brief review of the decisions that whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are – (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of – (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

31    As Halley J noted in Batterham v Clayton Utz Partnership [2022] FCA 360 at [94], the approach taken by Giles CJ (CommD) was subsequently endorsed by the New South Wales Court of Appeal in Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; (2001) 53 NSWLR 198 at 204 [32] (Handley JA; Mason P and Heydon JA agreeing) and has been applied in this Court in cases such as Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 at [70] (French J); McDonald v State of South Australia [2011] FCA 297; (2011) 126 ALD 488 at [43] (Besanko J); Quall v Northern Territory [2011] FCA 1441; (2011) 286 ALR 374 at [42] (Reeves J); and Kitoko v University of Technology Sydney [2021] FCA 360 at [74] (Griffiths J).

32    In Fortescue Metals Group, Robertson and Griffiths JJ, after referring to the judgment of French J in Spalla, said at 454 [376] and 455-456 [380]:

376.    Whether or not the relitigation of an issue rises to the level of an abuse of process requires a consideration of all the circumstances when viewed against two primary concepts, being the principle of finality of judicial determination and the second being public confidence in the administration of justice. Regard may need also to be given to oppression and unfairness to the other parties in the litigation. Ultimately, the Court must assess and evaluate whether the relevant conduct which is said to constitute an abuse of process brings the administration of justice into disrepute in the eyes of “right-thinking people”, which is largely an evaluative exercise. As French J stated in Spalla at [62]:

The breadth of abuse of process protection against attempted relitigation was considered in Walton v Gardiner per Mason CJ, Deane and Dawson JJ (at 393):

... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

Their Honours cited Reichel v Magrath and Connelly v Director of Public Prosecutions [1964] AC 1254 at 1361-1362. They also adopted and approved the description of the relevant jurisdiction of superior courts given by Lord Diplock in Hunter v Chief Constable of the West Midland Police [1982] AC 529 (at 536):

... the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.

The category of ‘right-thinking people’ is elusive. However the passage may be taken as emphasising that the task of the judge in such a case is evaluative.

…

380.    The extracts from the cases set out above illustrate how the courts have endeavoured to provide a framework for the application of the concept of abuse of process in the context of what potentially is a virtually infinite range of circumstances. Each case necessarily is to be approached in the context of all relevant circumstances but the lodestar for a court’s assessment of what constitutes an abuse of process and the appropriate remedy that should follow is the proper administration of justice, informed by the need to avoid injustice or unfairness. …

The Commission proceeding

33    As noted above, the applicant’s application to the Commission was made pursuant to s 394 of the FW Act. The Commission was required by s 396 of the FW Act to decide four matters prior to considering the merits of that application, including whether the applicant was a “person protected from unfair dismissal”: s 396(b) of the FW Act.

34    Section 382 of the FW Act provided in so far as is presently relevant that to be a “person protected from unfair dismissal”, the applicant had to have been an employee of the first respondent.

35    Commissioner McKenna found that the applicant was not an employee of the first respondent and thus that the Commission lacked jurisdiction to determine the application ([2], [23], [75], [81]).

36    In reaching that conclusion the Commissioner found that:

(1)    the applicant made an unsolicited approach to the first respondent/Mr Pall and sought to obtain supervision as a restricted legal practitioner ([23]);

(2)    the Agreement was freely negotiated between the applicant and the first respondent and its terms were similar to terms of an earlier agreement between the applicant and Gondwana Lawyers ([3], [4], [23]);

(3)    the applicant and the first respondent entered into an arrangement “squarely not intended by either of them to involve an employment relationship” ([34]);

(4)    the Agreement in the form proposed by the applicant to the first respondent included: “it is expressly understood and stated that the parties do not form an employer/employee relationship” ([35], [75]);

(5)    in around April 2020 the applicant declined to accept an offer made to him by Mr Pall to become an employee of the first respondent. The applicant determined instead to continue to work on the basis of the terms of the Agreement ([23]);

(6)    the applicant sent regular invoices to the first respondent for a percentage of professional fees and the applicant was remunerated on the basis of these invoices ([23]); and

(7)    during 2020, at a time the applicant claims to have been employed by the first respondent, he received JobKeeper payments via a company of his own ([23]).

37    It is clear from the decision of Commissioner McKenna that the existence of an employment relationship between the applicant and the first respondent was a central issue in the proceeding in the Commission and that this was considered in detail and decided adversely to the applicant in that proceeding.

The present proceeding

38    The Statement of Claim comprises 138 paragraphs and has the following structure:

(1)    A. The Parties

(2)    B. Mr Patial Employment with Kailash Lawyers

(3)    C. Supervision Certificate

(4)    D. Sham Agreement and Arrangement for Payments

(5)    E. Unfair Dismissal

(6)    F. Weekly Hours and Hourly Rate

(7)    G. Final Pay

(8)    H. Outstanding Wages

(9)    I. Annual Leave

(10)    J. Sick Leave

(11)    K. Overtime

(12)    L. Bonus Payments

(13)    M. Superannuation

(14)    N. Outstanding Payments for Additional Work including IT Services – Deepawali Event – Distributing Calendars – Assembling Office Furniture – Removing Office Furniture – Moving Office Files to Kennards Storage Box Wentworthville – Shifting Office Furniture – Continuing Professional Development Courses – Renewal Application Fees for the Office of the Migration Agent Registration Authority

(15)    O. Workplace Discrimination – Workplace Harassment – Forcing the First Applicant – Junior Solicitor to Involve in Wrong Activities

(16)    P. Psychological Stress

(17)    Q. Alternative supervised legal training

(18)    R. Particulars of Outstanding Wages, Entitlements, Payments and Compensation

(19)    S. Common Questions of Law and Fact

39    This structure provides an impression the Statement of Claim is principally concerned with an alleged employment relationship between the applicant and the first respondent. That impression is confirmed upon closer reading of the Statement of Claim.

The case pleaded solely against the first respondent – Parts B to M and O

40    The case pleaded against the first respondent in Parts B to M and O (and which draws in part upon Part A) is, in summary, that:

(1)    the first respondent was a National System Employer (Part A, [2]);

(2)    on 15 April 2019 he was verbally hired by Mr Pall on behalf of the first respondent (Part B, [19]);

(3)    his employment was subject to the National Employment Standards (Part A, [15]);

(4)    the Agreement was a sham (Part D);

(5)    his last day of employment was 26 August 2020 (Part C, [29]) on which date he was unfairly dismissed (Part E, [35]-[41]);

(6)    he was entitled to be paid:

(a)    wages (Part H, [46]-[47]);

(b)    annual leave (Part I, [48]-[50])

(c)    sick leave (Part J, [51]-[53]);

(d)    overtime (Part K, [54]-[55]);

(e)    bonus payments (Part L, [56]);

(f)    superannuation (Part M, [57]);

(7)    the following amounts are owed by the first respondent to the applicant:

(a)    wages of $6,652.80 (Part R, [137.a]);

(b)    annual leave of $7,375.85 (Part R, [137.b]);

(c)    sick leave of $3,138.91 (Part R, [137.c]);

(d)    overtime of $18,249.84 (Part R, [137.e]);

(e)    bonus payments of $11,450 (Part R, [137.f]);

(f)    superannuation of $9,747.19 (Part R, [137d]); and

(8)    while he was an employee of the first respondent, the applicant was the subject of discrimination (Part O, [83]-[121]).

41    The above issues all depend upon the proposition that the applicant was employed by the first respondent. As noted above, that very issue was considered in detail and determined by the Commissioner adversely to the applicant.

42    If the applicant were allowed to re-litigate this issue, the first respondent would be vexed and oppressed in having to litigate again an issue already determined in the Commission. The re-litigation of the issue would run contrary to principle of finality, would create the possibility of inconsistent judgments on the same issue and be an inefficient use of the Court’s resources. All of these matters would tend to bring the administration of justice into disrepute. I am comfortably satisfied that the pursuit in this Court of a case based upon the proposition that the applicant was an employee of the respondent in circumstances where that proposition was found to be false by the Commission is an abuse of process.

43    The conclusion that the inclusion of these Parts in the Statement of Claim constitutes an abuse of process renders unnecessary any consideration of whether there is an issue estoppel (a matter which featured prominently in the submissions of the applicant and the first respondent). It is also unnecessary to consider the adequacy of the pleading in these Parts of the Statement of Claim, and whether the present proceeding was commenced for a collateral purpose (namely to force the first respondent to withdraw its costs application – see paragraphs [9] to [13] above).

Part N (including the case pleaded against the second and third respondents)

44    I consider Part N separately because it purports to plead an entitlement to remuneration for work done for each of the respondents.

45    In Part N, the applicant pleads that between 17 April 2019 and 26 August 2020, he did additional work for the first respondent, second respondent and third respondent ([58]) and in particular:

(1)    maintenance or management of staff computers ([59]-[60]);

(2)    arranging and working at stalls at the Hindu Diwali Mela ([61]-[62]);

(3)    distributing magnetic calendars at various temples ([63]-[65]);

(4)    assembling office furniture ([66]-[68]);

(5)    removing old office furniture ([69]-[71]);

(6)    moving office files and other items to a storage facility ([72]-[74]); and

(7)    shifting and re-organising office furniture ([75]-[79]) (for the first and second respondents only).

46    The manner in which Part N has been pleaded renders it difficult to determine the basis of the applicant’s claims against particular respondents.

47    Reading Part N in the context of the whole of the Statement of Claim, it appears to be a claim that during the course of his employment by the first respondent, the first respondent required the applicant to undertake additional work which work benefitted each of the respondents in the manner described above.

48    Such a conclusion is supported by the following: the only employment relationship pleaded is as between the applicant and the first respondent; the period 17 April 2019 to 26 August 2020 corresponds exactly to the period of the applicant’s alleged employment by the first respondent (Part B, [19] and Part C, [29]); the reference to “additional work” in paragraph [58] which assumes the existence of extant work; and the amounts claimed for the additional work in paragraphs [137.g-m] being the product of the additional hours worked and the average hourly rate of $30.24 alleged to have been payable to the applicant by the first respondent as part of their employee/employer relationship (Part F, [43]-[44]).

49    Thus, Part N, as pleaded, is also reliant upon the proposition that the applicant was an employee of the first respondent. It follows, for the reasons set out above, that it is an abuse of process and should be struck out.

Part P

50    Part P is titled “Psychological Stress”. It contains allegations that Mr Pall:

(1)    unlawfully retained some of the applicant’s personal belongings until 26 October 2020 (Part P.1, [123]);

(2)    did not sign a supervision certificate until 29 October 2020 and in doing so included an incorrect termination date (Part P.2, [125]-[126]); and

(3)    “badmouthed” the applicant to two subsequent employers of the applicant (Parts P.3 and P.4, [127]-[130]).

51    The abuse of process considerations described above do not arise with respect to Part P. However, the allegations in Part P are not pleaded in a form which discloses a viable cause of action. There are bare allegations of facts with no identification of a particular legal standard alleged to have been enlivened or contravened. There is also no allegation that the alleged conduct was causative of loss to the applicant. Critically, the conduct is alleged to have been engaged in by Mr Pall, who is not a party to the proceeding, and there is no allegation in Part P or elsewhere that the alleged conduct of Mr Pall pleaded in Part P was conduct attributable to any of the respondents.

52    Thus, Part P does not disclose a viable cause of action and should be struck out for that reason.

Parts A, Q, R and S

53    The remaining Parts of the Statement of Claim are Parts A, Q, R and S.

54    Part A provides details of the parties. Part Q contains a bare allegation that the applicant found alternative supervision for his legal training on 30 November 2020. Part R sets out the amounts claimed by the applicant. Part S sets out a superfluous list of “Common Questions of Law and Fact”. Each of these Parts rises no higher than Parts B to P and cannot be maintained if those parts are not viable. As I have concluded that Parts B to P should be struck out, it follows that the whole of the Statement of Claim should be struck out.

Conclusions as to the Statement of Claim

55    For the reasons set out above, the Statement of Claim should be struck out in its entirety.

Leave to replead

56    The Court has a discretion to grant leave to replead.

57    To the extent that the applicant seeks to propound a case, through the Statement of Claim, based on an alleged employment relationship between himself and the first respondent (i.e. Parts B to O), there should be no leave to replead, given my findings above concerning abuse of process, subject to one exception.

58    The exception is that I cannot exclude the possibility that the applicant may have a viable case against the second and third respondents based upon allegations of the kind referred to in Part N. This is particularly so in light of the (appropriately made) concession on behalf of the respondents referred to at [18] above.

59    It may also be possible for the applicant to properly plead a cause or causes of action based around the allegations in Part P.

60    In circumstances where: (1) it may be possible to properly plead a cause or causes of action (a) as against the second and third respondents concerning the conduct referred to in Part N; and (b) Part P; and (2) as presently pleaded, the pleading of such causes of action appear unlikely to amount to an abuse of process of the type described above, I will allow the applicant to replead Parts N and P.

MISCELLANEOUS MATTERS

(1) Pleading of grave allegations

61    The present Statement of Claim (and the Originating Process) contains a number of very serious allegations concerning the conduct of Mr Pall. In view of the conclusions reached above, it has not been necessary to set these out in detail or to address the manner in which they have been pleaded. However, it is fair to say that grave allegations have been liberally made without detailed particulars.

62    If the leave to replead Parts N and P of the Statement of Claim is exercised, the obligations set out in rr 16.02(2)(a) and (b) and 16.42 and rr 21 and 32 of the Legal Professional Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) must be borne in mind.

(2) Removal of Statement of Claim from the Court file

63    The respondents also seek the removal of the Statement of Claim from the Court file. Rule 16.21(2), which is set out at [23] above, provides that a party may apply for such an order if the pleading contains, inter alia, scandalous or vexatious material or is otherwise an abuse of process. In view of the conclusions that I have reached above as to the inclusion of grave allegations without detailed particularisation and that most of the Statement of Claim constitutes an abuse of process, I will accede to the application and order that the Statement of Claim be removed from the Court file. I note that no application has been made with respect to the Originating Process.

(3) The use of the word “pre-cursor”

64    In his written submissions, Counsel for the respondents submitted:

9.    Between April 2019 and August 2020, the Applicant undertook legal supervision in connection with practising certificate requirements, as a precursor to becoming an unrestricted legal practitioner with the First Respondent. Mr Amit Pall is the principal solicitor of the First Respondent.

65    The applicant responded:

37.    On 31 January 2022, in paragraph 9, the Respondent’s Counsel used the derogatory word “precursor” for me in his written submissions. Precursor is not defined in the Legal Profession Uniform Law (NSW).

38.    I submit that in 2012 Counsel was admitted as a solicitor in the Supreme Court of New South Wales, and similarly, on 7 December 2018, I was admitted as a solicitor in the Supreme Court of New South Wales.

39.    I submit that I had not worked as a precursor. I worked as a restricted practising solicitor at the First Respondent under the supervision of the principal Mr Pall.

40.    I submit that the Counsel has no authority and right to use this kind of disparaging word against his colleague when he himself started his legal journey from the same point as me.

66    In reply, Counsel for the respondents submitted:

9.    With this Honourable Court’s leave, Counsel will seek to raise a minor matter in oral address regarding allegations made by the Applicant in paragraphs [37] – [40] against Counsel’s use of the word “precursor”.

10.    Counsel for the Respondents submit that any allegation that the word “precursor” is a derogatory term is frivolous and without any merit. The sentence referred to by the Applicant reads: “the Applicant undertook legal supervision in connection with practising certificate requirements, as a precursor to becoming an unrestricted legal practitioner with the First Respondent”. The same terminology was used by Commissioner McKenna in Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2021] FWC 4167, [3].

11.    As these allegations have been put on the record by the Applicant, Counsel respectfully requests if this Honourable Court would be minded to make a specific finding in relation to these matters (if pressed in oral argument by the Applicant), given that they seek to undermine Counsel’s professional integrity.

67    These submissions were each reiterated at the hearing of this application.

68    It appears that the applicant has taken offence at the word “precursor”. This may be based upon a misunderstanding as to its meaning. I understand that word, in the sense used by Counsel for the respondents (and by Commissioner McKenna), to mean that there was a period of restricted practice as a step prior in time to the applicant holding an unrestricted practising certificate. I discern nothing disparaging in this use of the word.

CONCLUSION

69    For the reasons set out above, the Statement of Claim should be struck out and removed from the Court file. The applicant should have leave to file a further Statement of Claim limited to causes of action based upon the matters referred to in Parts N and P.

70    The respondents indicated that they wished to be heard on the question of costs. I will make orders for the determination of that issue.

Associate:    

Dated:    9 June 2022