Abuse of Process: County Court Finds Lawyers Personally Liable

In 2022, the Plaintiff's lawyers, Shine Lawyers, issued a writ against the First Defendant alleging negligence following a dog attack. The writ was not served.

The Plaintiff’s lawyers issued demands and prescribed information to the First Defendant pursuant to the relevant provisions of the Wrongs Act 1958 (Vic) that apply to public liability claims. In response, the Plaintiff was referred to the Medical Panel and various supporting records were provided in support of the claim.

Following receipt of various documents from the Plaintiff’s lawyers and having ascertained the existence of the issued but unserved writ, the First Defendant's lawyers, Turks, raised early concerns about the validity of the proceeding, having regard to the fact that the Plaintiff appeared to be a worker and therefore subject to the requirements of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

By June 2024, the Plaintiff's own lawyers accepted that he was a worker. The Plaintiff applied for, and was granted, a serious injury certificate on 16 July 2025.

However, rather than discontinuing the 2022 proceeding, the Plaintiff's lawyers continued to obtain ex parte extensions of the 2022 writ, including, most relevantly, an extension in August 2025. When seeking that extension the Plaintiff’s lawyers failed to inform the Court that a serious injury certificate had been issued and that the Plaintiff had no intention of serving the 2022 proceeding.

The Plaintiff’s lawyers then commenced a second proceeding in November 2025 pursuant to the requirements of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) without discontinuing the earlier action. As a result, both proceedings continued in parallel for the following nine months until the issue was brought before the Court.

The Court held that it is prima facie vexatious to maintain two extant proceedings advancing the same claim absent reasonable justification.

The Court further commented that while protective filing can be prudent where a plaintiff's worker status is genuinely uncertain, that did not excuse the conduct in this case. The lawyers had proceeded as though the Plaintiff was not a worker, failed to discontinue the 2022 proceeding once its nullity was beyond doubt, sought a further ex parte extension without disclosing the serious injury certificate, and then maintained two proceedings in parallel for approximately nine months.

The Court found that both the ex parte extension and the failure to discontinue the 2022 proceeding amounted, individually and collectively, to an abuse of process and a breach of the overarching obligations under the Civil Procedure Act 2010 (Vic).

While it was open to the court to stay the new proceeding, it declined to do so because that outcome would have unjustly deprived the Plaintiff of his substantive claim.

Instead, relying on s29 of the Civil Procedure Act (Vic), the Court ordered the Plaintiff's lawyers to personally pay, on an indemnity basis, the financial loss caused to the First Defendant. This included the costs of the Medical Panel referral and related advice, lawyer and counsel appearance costs, and various other costs incurred by the First Defendant as a result of the conduct of the Plaintiff’s lawyers. Those costs were to be assessed by the Costs Court in default of agreement.

This decision confirms that lawyers cannot indefinitely preserve a proceeding they know, or ought to know, is a nullity. It also confirms that it is prima facie an abuse of process to prosecute two proceedings arising from the same cause of action concurrently.

Parties and their lawyers should promptly put other parties on written notice of any jurisdictional defects and keep a clear record of the resulting costs. Where a failure to address those defects causes unnecessary costs to be incurred, the Court may consider personal costs and/or financial loss orders against the lawyers responsible under s29 of the Civil Procedure Act (Vic) as a proportionate remedy.