NSW District Court Judicial Registrar, James Howard, attempts to dismiss Plaintiff's three claims before claims are served on the Defendants and prior to parties being heard in Court.
At all times, a registrar/judicial officer must act impartially in their dealings with court proceedings they manage and/or preside in. This is an essential element in the administration of justice and in upholding the public's confidence in the integrity of the courts.
If a registrar/judicial officer cannot act impartially, they have a duty to recuse themselves from the case to ensure that the matter is dealt fairly in accordance with the administration of justice principles (fair hearing, impartiality and procedural fairness).
The following case is an important example that a party to proceedings (particularly a litigant in person) needs to be aware of, to exercise and protect their legal rights in making/defending claims. It is important to know the duties of registrars/judicial officers in the conduct of court proceedings.
This article provides how the following court proceedings in the District Court were conducted by the Judicial Registrar James Howard ("JR James Howard") in District Court Sydney NSW. From the outset, JR Howard is alleged to have interfered with the prescribed timeframes for the defendants to file their defences and attempted to dismiss the the plaintiff's statements of claim (claims) without due process.
JR Howard had emailed all parties from three separate proceedings in one email (see JR Howard's Email dated 28 Sept 2022), casting aspersions on the plaintiff/party/litigant in person to proceedings, undermining her three claims, demonstrating his intent for the claims to be dismissed before being served on two of the defendants and where the parties have not been heard before court.
The following questions arises, "Is it Legal for a Judicial Registrar to Dismiss Claims Before Defendants are served and/or heard in Court?"
JR Howard, in his email, had given the defendants prior notice of the plaintiff's claims before the plaintiff could serve the claims on them. JR Howard recorded his opinions and criticisms about the Plaintiff and her claims, showing his intent for him and/or the defendants dismiss the claims. Such conduct is demonstrable of biased conduct against a party to proceedings, the plaintiff, which is impermissible and against JR Howard's duties where he is to ensure fairness and impartiality in order to uphold the administration of justice.
JR Howard's conduct is an example for public awareness that such acts happen in the NSW District Court.
JR Howard had set the first court listing date for all three cases at an early court date, before the prescribed timeframes for the defendants to be served with the claims and/or to file their defences. The said email gave express notice to all three defendants that JR Howard intends to disregard the validity of the claims referring to the claims as 'drafts' and that the they were not accepted by the court (notwithstanding that the claims were filed and sealed by the court). The email provides the mere opinion of JR Howard without reference to any authority/legislation in support of his intention to dismiss the claims and to list a show-cause hearing for the first court listing. It is vital that the registrar puts squarely to the plaintiff what rules/legislation the registrar relies upon in making such statements in his said email.
JR Howard's first line in his email was listing the first court date as a 'show cause as to why the proceedings should be dismissed/claims struck out' and indicated his expectations for 'each defendant' to 'make some form of an application to strike the pleadings out and/or the proceedings.' .
The email of JR Howard set the tone of the proceedings.
This cases are in relation to Ms Odtojan’s personal civil tort-damages proceedings against her former legal representatives, alleged to have committed fraud/improprieties in the provision of legal services to her where they have legal, fiduciary and contractual obligations to her as their client. The claims were under the well-established client/legal practitioner relationship. The following cases were commenced in Aug-Sept 2022:
Odtojan v Nicolas George Ford (DC 2022/00242555 ; NSWCOA 2023/131242) - Barrister of Coram Chambers / previously Edmund Barton Chambers - See Statement of Claim against Mr Nicolas George Ford
Odtojan v Thomas Patrick Glynn (DC 2022/00273977; NSWCOA 2023/131229) - Principal Solicitor of Glynns Lawyers, based in Tasmania - See Statement of Claim against Mr Thomas Patrick Glynn
Odtojan v Miles Kevin Condon (DC 2022/00273980; NSWCOA 2023/103644) - Senior Counsel of New Chambers - See Statement of Claim against Mr Miles Kevin Condon SC
Judicial Registrar James Howard's email 28 September 2022
On 28 September 2022, NSW District Court Judicial Registrar, James Howard, (JR Howard) sent an irregular email, demonstrating his bias against the plaintiff, in relation to the three above-mentioned proceedings. See JR Howard's Email dated 28 Sept 2022
JR Howard's email was sent to the three defendants and Ms Odtojan before the parties were heard in court at a first court listing, and before the prescribed timeframe to serve and file defences. Two of the claims were not yet served on Mr Condon SC and Mr Glynn.
JR Howard already knew the legal representatives of Mr Ford and sent the email to Mr Jonathan Newby (Collin Briggs Parsley), where no notice of appearance was filed/served on Ms Odtojan at the time JR Howard sent his email to the parties.
In reference to JR Howard's email:
It is irregular (not a standard practice) for registrars to email parties to proceedings in such a manner and prior to the parties being heard at their first court date listing. Registrars must, at all times be impartial. JR Howard's email was clearly biased against the Plaintiff, and demonstrated his intent for the three claims to be dismissed. He directed the defendants to make applications to dismiss the respective claims made against them.
JR Howard gave prior notice to the defendants, Mr Condon SC and Mr Glynn, of the statements of claim against them before the claims was served on them.
JR Howard sent his email to the defendants in three separate proceedings without consolidation orders and listed an early court date as a show cause for the three cases to be heard together and before prescribed timeframes to serve the claim and/or file defences.
JR Howard was notified that two of the claims were yet to be served. See reply email by Ms Odtojan. Thee said email was ignored and not responded to by JR Howard.
JR Howard, effectively, alluded to an apology to the defendants and directed them by stating he anticipated for each defendant to make an application to dismiss Ms Odtojan’s claims.
JR Howard undermined Ms Odtojan's claims and referred to them as drafts or a proposed amended claim (Mr Ford claim), when all the claims were filed and court-sealed. In Mr Ford's case, he was already served with the claim. JR Howard, having access to the files, would see that a notice of service was filed regarding the service of the claim on Mr Ford.
Had set the tone of how the three matters would be conducted by JR Howard. His undermining of Ms Odtojan's claims gave confidence to the three defendants, where Mr Ford was already served with the claim, that all three defendants did not have to file a defence within the prescribed 28-days timeframe from service of the claim.
First Return Court Date
At the first court return date on 4 Oct 2022, as evidenced by the court transcript:
JR Howard extensively advocated for the three defendants and undermined the plaintiff's claims, referring to them as drafts when they were filed and court-sealed.
His first statements in court were in relation to his powers he had to dismiss the claims without first hearing from the plaintiff.
JR Howard made representations that the claims should have been provided as drafts to the court for its approval.
JR Howard solely argued and raised case laws for the defendants that the three claims should be dismissed. The defendants' lawyers did not have to speak for their clients as JR Howard was arguing for the defendants and was threatening that he had the powers to dismiss the three claims.
JR Howard had asked the respondents if they wanted him to dismiss Ms Odtojan's claims. Mr James Berg (DLA Piper) acting for Mr Condon SC, and Ms Ms Belinda Marshall (Barry Nilsson Lawyers) for Mr Glynn sought leave to appear as they were just retained on the matter, however, without the claims served on them, they agreed for JR Howard to dismiss the claims.
Ms Odtojan argued that the claims were compliant with pleadings requirements under the Uniform Civil Procedural Rules 2005 (UCPR) and the causes of action under fraud (common law), intentional negligence and unlawful civil conspiracy.
Ms Odtojan raised the issue of the JR Howard's irregular email sent to the parties and challenged JR Howard to provide the rule/legislation he relied upon that a party/applicant was to file a draft statement of claim for the Registrar to approve. JR Howard could not provide such authority.
Ms Odtojan raised many issues, amongst them that the claims raised serious allegations of fraud and issues of fact/law and credit to be tried at final hearing. Ms Odtojan also raised her concerns regarding the propensity of the defendants to collude noting her past experience with the defendants and their conduct. This was disregarded by the JR Howard.
Notwithstanding, JR Howard's clear intentions to dismiss all three claims he was not able to do so as he had no legal basis as argued by Ms Odtojan, and there were serious issues of fact, law and credit to be tried at a final hearing.
By his own motion, JR Howard, made irregular orders for the defendants to provide Ms Odtojan with a ‘letter of objections’ against the claims. Such order was not sought by any of the defendant's lawyers and is an unusual, non-standard order made by a registrar especially in the first court mention listing. Such order would usually be sought by the defendant's legal representatives upon review of the claims. Two of the claims were not even served on Mr Condon SC and Mr Glynn.
JR Howard made orders for Ms Odtojan to file her claims and any amended claim which was not an order to be made as she was still in her prescribed timeframe under the Uniform Civil Procedure Rules 2005 (UCPR) to serve the claims and/or amend the claims on the respective defendants. JR Howard made no orders for the defendants to file their defences, only for them to provide Ms Odtojan with their 'letters of objections'.
12. JR Howard disregarded District Court Civil Practice Notes procedures JR Howard had also written a paper on District Court practice notes.
Subsequent directions hearings
The conduct of JR Howard has been recorded in the affidavits of Ms Odtojan throughout the court proceedings relying on court transcripts, raising issues of JR Howard's conduct and case management where he is alleged to have acted partially, advocating on behalf of the respondents on every occasion in court directions/hearings ensuring that they did not have to respond to matters raised at the directions hearings including filing defences, the absence of the defendants' professional indemnity insurers' legal representatives which must be involved in such proceedings, where a client is making a claim against the legal services provided by the defendants.
JR Howard asked no questions to the defendants nor sought answers/replies from the defendants to the issues raised by Ms Odtojan in the directions hearings. Further, the hearings were conducted in such a manner where all three cases were heard at the same time in court, not one after the other, making it difficult for Ms Odtojan to answer each defendant's counsels who raised different matters. JR Howard was put on notice of this issue, but the Registrar would make Ms Odtojan wait till the end for each defendant's legal representatives submissions to raise different matters for Ms Odtojan to respond to them. There was also conduct of not allowing Ms Odtojan to speak/respond and/or interject, cutting off Ms Odtojan when she was speaking. The case management was conducted in a manner that was to frustrate and oppress the plaintiff.
Plaintiff's Notice of Motion heard on 17 March 2023
On 17 March 2023, at the plaintiff's notice of motion interlocutory hearing, the following transpired:
JR Howard refused to deal with Ms Odtojan’s notice of motion which raised matters concerning the alleged misleading conduct of Mr Anthony McInerney SC of New Chambers (acting for Mr Miles Condon SC of New Chambers).
Mr McInerney SC gave evidence at the bar table before Judge S. Norton in the interlocutory hearing on 16 Feb 2023, making an unfounded statement of fact that the 'contract' was based on 'secondary documents'. Mr McInerney produced no evidence in support of his representations to the court.
Mr McInerney SC representations were made for the first time in history in Condon’s case and are contrary to Mr Condon SC's written appeal advice which expressly recorded a credit contract as a statement of fact. This was made with Mr Ford and Mr Glynn.
Mr Condon never made any representations that the contract was based on 'secondary documents' in his written appeal advice, draft summons, in conference with Ms Odtojan and in his submissions during the NSW Supreme Court Costs Assessment process in 2017.
There is no record/representation by Mr Condon SC that the contract is based on secondary documents.
JR Howard made representations that such issues of Mr McInerney SC misleading the court were not for him to address, but, rather, for the final hearing. This was objected to by the plaintiff, there was no legal basis in support of such a statement made by JR Howard. Final hearing is for substantive material issues of fact/law/credit contested between the parties, not the conduct of the legal practitioners where the issue was promptly and appropriately raised in the plaintiff's notice of motion which was before JR Howard.
Mr Bryl put on record the fact of Mr McInerney SC was laughing at the bar table when Mr Bryl submitted that McInerney SC misled the court on 16 February 2023 by giving unfounded evidence at the bar table, making representations to the court that the contract was based on 'secondary documents' which is contrary to his client's own written appeal advice.
When Mr Bryl raised the issues of misleading the court to JR Howard, Mr McInerney SC did not object nor did JR Howard sought Mr McInerney SC to answer nor did he put any questions to Mr McInerney SC. JR Howard had completely disregarded the issue.
JR Howard refused to recuse himself when an application was made due to his biased conduct. JR Howard had self-assessed himself and determined that he was not biased and remained presiding in the notice of motion interlocutory hearing.
JR Howard advocated and argued for the defendant that Ms Odtojan's notice of motion was to be an estimate duration of under 2 hours. This is an irregular conduct by a registrar where it is for the plaintiff to provide the estimated time for their notice of motion, and for the defendant to agree or contest the plaintiff's estimated duration.
JR Howard was adamant that the motion is to be under 2 hours. He insisted to deal with the matter. If the notice of motion hearing was to be more than 2 hours, a duty judge has to be assigned on the motion. Note: the notice of motion had actually taken more than 3 hours as stated by the plaintiff.
The defendant, Mr Miles Condon SC of New Chambers, did not attend any court hearings nor filed any evidence nor defence and neither was his professional indemnity insurer legal representatives involved in the proceedings noting his client (Ms Odtojan) made a claim against him in relation to provision of his legal services and where there is a client/legal practitioner relationship.
Ms Condon for almost 8 years has failed and continue to fail to provide to his client (Ms Odtojan) any evidence /document in support of his recorded statement of fact, expressly relying on a credit contract in his written appeal advice. Ms Odtojan had provided him a 16 page letter in 2017, raising concerns and requesting production of the contract he relied upon among other documents. He has ignored and have not responded to the issues raised and request for provision of documents/particulars sought in his client's letter.
Judge Ainslie -Wallace Notice of Motion Judgment
On 1 June 2023, Judge Ainslie-Wallace presided over a notice of motion by defendant, Mr Condon's SC. The defendant and its lawyers, Mr Berg of DLA Piper had made the same application under rule 13.4 of the UCPR which they had already made and had been heard and determined by Judge S Norton at the interlocutory hearing on 16 February 2023. Judge Norton did not dismiss the claims under r 13.4 UCPR.
Judge Ainslie-Wallace had taken almost one year, for her to give her judgment on a notice of motion. During the time the judgment was reserved, Mr James Berg and Ms Sarah Li Yee Lien of DLA Piper contacted JR Howard without consent of Ms Odtojan, where Mr Berg was complaining to JR Howard for the judgment to be provided by her Honour. This was not the first time DLA Piper had contacted the court without the plaintiff's consent and they had already been notified about their conduct by Ms Odtojan.
In DLA Piper's prior contact with the court, DLA Piper emailed JR Howard without consent directing him to make orders. On both occasions, such communication was objected to and was responded by Mr Berg, DLA Piper, that Ms Odtojan's objection to their contact with the court was 'inappropriate'. Mr Berg is aware that such communication constitutes a breach of his professional and ethical duties.
JR Howard was given notice of the inappropriate direct email by DLA piper without consent from Ms Odtojan. JR Howard did not address the issue and had ignored the notice. Upon receiving the email from Mr Berg DLA Piper, JR Howard started to list the matter for court directions where the judgment of Judge Ainslie-Wallace was still reserved and there was no basis for the court listing, which would constitute an abuse of court process.
JR Howard made orders without a hearing, and without Ms Odtojan being heard on the matter. JR Howard made orders for Ms Odtojan to notify the defendant if she would be amending her statement of claim. This was made whilst judgment of Judge Ainslie-Wallace was still reserved.
Mr Bryl, who appeared in the next court mention, questioned JR Howard's basis for making such orders above-mentioned. JR Howard did not provide a legal basis, but rather stated that he had spoken to Judge Ainslie-Wallace and based on that conversation where the Judge supposedly asked him whether the statement of claim would be amended, he made orders. Such conduct is against the court rules/process and against the administration of justice. All communications with the Judge, particularly where there is reserved judgment, are to be transparent to all parties to proceedings and neither can an order be made without notice to the parties and hearing them on the matter.
On 21 May 2024, Judge Ainslie-Wallace delivered her judgment in relation to the notice of motion which she presided on 31 May 2023. The judgment was not provided to both parties by the court, rather, the defendant's solicitor, Mr Berg of DLA Piper emailed Ms Odtojan Judge Ainslie-Wallace's judgment and he represented that the judgment was published.
To date, no judgment has been published by the District Court regarding these proceedings.
An email was sent to the Associate who provided the judgment to Mr Berg, where Ms Odtojan made enquires by email, raising matters which were to be put to Judge Ainslie-Wallace's attention. Ms Odtojan raised queries of why the judgment was not provided by the court to Ms Odtojan, she had sought confirmation when the judgment was published as it cannot be found online, and sought clarification of the representations made by JR Howard of his conversation with the judge, where JR Howard made orders upon such conversation regarding whether the plaintiff intends to amend the statement of claim.
To date, Judge Ainslie-Wallace and the Court has not responded to Ms Odtojan's email of the the issues raised to Judge Ainslie-Wallace. The judgment had recorded facts and evidence which were created by Judge Ainslie-Wallace and where there was no evidence before her Honour to record such facts and representations such as recording Mr Glynn was present at the 12 September 2016 conference when he was not, and there is no such evidence given at the hearing before Judge Ainslie-Wallace on 31 May 2023.
Judge Ainslie-Wallace recorded in the judgment mere speculations that there are no facts neither evidence to support the plaintiff's case where such issues were not ventilated nor put to Ms Odtojan at the hearing for her to answer.
The Judgment recorded facts, representations and evidence, by ambush, and omitted to record the issues put to Judge Ainslie-Wallace by the plaintiff such as the issue of fact of the credit contract (which supports that the plaintiff has a triable case for final hearing), and the inconsistent representations made by Mr Condon SC at the conference with Ms Odtojan (that there was no contract ventilated and produced in court as confirmed by Mr Ford), this is inconsistent with Mr Condon SC 's representations in his written appeal advice (expressly recording his reliance on a credit contract as a statement of fact, with Mr Ford and Mr Glynn) and issue of the plaintiff seeking for the three defendants to produce the contract they relied upon in their written advice and in the local court proceedings by Mr Ford and Mr Glynn.
The three defendants have ignored and not addressed their clients letter to each of them, raising issues and request for the provision of the contract among other documents and particulars. These material facts and issues among others were completely omitted by judge Ainslie-Wallace in her judgment.
The judgment of Judge Ainslie-Wallace is impermissible as the Judge made a determination under rule 13.4 UCPR, which was already heard by Judge Norton who did not dismiss the claims under rule 13.4 UCPR at the interlocutory hearing on 16 Feb 2023.
It is important to note, that Judge Norton had stated on record in court on 16 February 2023, that Mr Ford had ran a different case to his client's case (Ms Odtojan). This demonstrates how easily discoverable Mr Ford and Mr Glynn's conduct is at the final hearing in the 2016 local court proceedings. Judge Norton had confirmed that the case Mr Ford conducted at the final hearing was not Ms Odtojan's case.
Judge Ainslie-Wallace has engaged in conduct that is an abuse of court process. The Judge was clearly put on notice of such issue in Ms Odtojan's reply to the notice of motion and in the plaintiff's submissions that the defendant's application under 13.4 is impermissible and an abuse of court process.
Judge Ainslie-Wallace impermissibly did a rehearing under 13.4 UCPR, by ambush, and does not record the objections made by Ms Odtojan/applicant neither does she acknowledge (omitted in the judgment) the notice of motion filed by Ms Odtojan in relation to the defendant's notice of motion.
In the case of Mr Condon SC, there are two outcomes under rule 13.4 UCPR by two District Court judges, Judge Norton in 16 February 2023 (did not dismiss the claim under 13.4 UCPR) and Ainslie-Wallace in 21 May 2024 (dismissed the claim under 13.4 UCPR).
Mr Ford and Mr Glynn's cases silently dismissed without hearing nor notice to the parties.
The cases of Mr Ford and Mr Glynn were silently dismissed in the District Court without any hearing nor notice to the parties. Ms Odtojan contacted the court when she discovered the cases simply disappeared and the cases were recorded as 'closed' in the NSW Online Registry portal. It was stated to Ms Odtojan, by the court staff over the phone, that the cases appeared to been dismissed in March 2023. This was a surprise to Ms Odtojan as the cases were open and not marked 'closed' at the time she was accessing the court portal, obtaining court documents in preparation of the folders for the leave to appeal in NSW Court of Appeal in June 2023. Further, when Ms Odtojan filed the notice of the leave to appeal at the District Court in June 2023, the staff at the registry did not state that the cases were closed.
The court staff, over the phone, referring to their system, stated that Judge Norton is recorded to have dismissed the said cases (Ford and Glynn). Judge Norton had no jurisdiction to make any further orders on all three cases after the Judge had concluded presiding in the interlocutory hearing on 16 February 2023. It is noted that the cases were managed by JR Howard.
Mr Condon SC's case was not closed because of the pending notice of motion judgment by Judge Ainslie-Wallace which took the Judge almost a year to deliver the judgment (as above). However, it is alleged that if there was no pending judgment by Judge Ainslie-Wallace, all three cases would have been silently dismissed in the District Court without a hearing nor any notice to the parties.
This is a case of great importance as the conduct in question in these proceedings is done in public office, in the courts, and the public is to be aware of such conduct interfering with the administration of justice, where there is a duty for registrars/judicial officers to conduct a fair, impartial and objective case management and hearings. For more information, see the Public Notice
Disclaimer: The article is based on what transpired in the NSW District Court proceedings in the above-mentioned cases based on court transcripts, the plaintiff's affidavits and court documents. The information is subject to change where any corrections, amendments or additional information may be required. For queries, please contact: oblawyers.media@gmail.com
Comments