Stubberfield v Lippiatt[2006] QSC 281

SUPREME COURT OF QUEENSLAND

PHILIPPIDES J: 

Background

1. The disputes, the subject of the present proceedings, concern matters that occurred in some instances over 10 years ago and have featured in prolonged litigation between the plaintiff and the second defendant in various courts.

2. The plaintiff commenced the within Supreme Court proceedings by claim filed on 1 October 2004, defences were filed on 28 October 2004, followed by the plaintiff’s reply on 21 December 2004. The plaintiff filed notices to admit facts and to admit documents on 18 January 2005, to which the defendants responded by notices filed on 28 January 2005. There was then a period of inaction until 15 November 2005, when the plaintiff filed a list of documents. By application filed on 1 December 2005, the plaintiff sought various orders, including orders for disclosure.

3. The defendants thereupon filed an application, seeking judgment against the plaintiff pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (“UCPR”), on the basis that they have a complete defence pursuant to the provisions of the Limitations of Actions Act 1974.  Alternatively, the defendants applied to strike out the plaintiff’s statement of claim either pursuant to r 171 of the UCPR, or otherwise pursuant to the court’s inherent jurisdiction as an abuse of process or on the basis that the plaintiff’s claim was brought in contravention of an order made by Moynihan J on 4 November 1997 in proceedings No 5555 of 1997.  The defendants also sought, in the alternative, an order that the proceedings be stayed as an abuse of process. 

4. Both applications came before Byrne J on 14 December 2005 and after some extended oral submissions were adjourned to the civil list for hearing. On the hearing before this court, it was submitted by the defendants that it was appropriate that their application be considered first, since if successful it would render the plaintiff’s application obsolete. That course was followed.

5. While the defendants continued to argue some of the matters raised before Byrne J, they did not seriously press the summary judgment application accepting there were difficulties in obtaining summary judgment on the basis that the plaintiff’s claims were statute barred. The defendants also recognised that there were obstacles in contending that the plaintiff’s claims were subject to res judicata.  Nor, for the reasons outlined below, do I consider that the plaintiff’s claim is brought in contravention of the order of Moynihan J.  The defendants’ application thus proceeded primarily on the ground that the statement of claim ought to be struck out, or the proceedings stayed as an abuse of process.  After the hearing of the application, the plaintiff sought to place further material before the court.  The defendants made written submissions opposing the receipt of that additional material, except where it genuinely expanded on factual matters relating to the summary of the litigation in which the plaintiff has been involved.  Having considered those submissions, I nevertheless consider that it is appropriate that the plaintiff be permitted to place the additional material before the court and grant leave in respect of it.

6. In order to place the defendants’ application in context, some background facts disclosed on the material and not in dispute, need to be outlined. In addition, it is necessary to refer to some of the history of the relevant litigation between the parties.

7. In April 1994, the plaintiff engaged the second defendant to defend bankruptcy proceedings brought by Paradise Grove Pty Ltd arising out of a costs order made against the plaintiff in favour of Paradise Grove. The defendants provided initial advice that the petition could be defended on the basis that the underlying costs order was open to review. The defendants caused affidavit material to that effect to be filed in the bankruptcy proceedings. The plaintiff commenced separate proceedings in the Supreme Court contesting the original taxation. The bankruptcy petition was listed for hearing in the Federal Court on 5 December 1994. Since the senior counsel, who had given advice in the matter, was unavailable for that day, another counsel was briefed by the defendants to appear in the proceedings on the plaintiff’s behalf. On 2 December 1994, the Friday before the listed hearing date, the plaintiff attended on the first defendant and received further advice concerning his prospects of defending the bankruptcy petition. This was to the effect that a change in circumstances, resulting from the taxation review not having been completed and the taxation certificate not having been set aside, had altered the plaintiff’s prospects. The plaintiff was dissatisfied with the conduct of the matter by the defendants, particularly in failing to secure the previously engaged senior counsel’s appearance on 5 December 2006, and by what he understood to be the second counsel’s opinion and the changed advice as to the plaintiff’s prospects. On the morning of 5 December 1994, prior to the hearing of the Paradise Grove petition in the Federal Court, the plaintiff attended at the offices of the defendants, and the second defendant’s retainer was terminated. Thereafter, the plaintiff attended at the Federal Court, appearing on his own behalf and was granted an adjournment.^[1] 

8. After obtaining the adjournment, the plaintiff attended the defendants’ offices and demanded repayment of monies that had been paid on account ($3,300) and delivery of his file. Both demands were refused and on 8 December 1994 the second defendant issued a bill for the sum held on account, stating that the second defendant was prepared to limit costs and outlays to that amount, but that should the plaintiff require a bill in taxable form to be delivered, it would be provided in “the full costs” to which the second defendant was entitled upon the taxation. On 9 December 1994, the plaintiff wrote to the second defendant rejecting the account dated 8 December 1994 and demanded a bill in taxable form, which the second defendant provided under cover of letter dated 22 December 1994. This bill totalled $11,314.95. Other than the $3,300 that had been paid on account, no further payment was made by the plaintiff.

The Magistrates Courtproceedings

9. In February 1995, the second defendant issued proceedings in the Magistrates Court against the plaintiff for professional costs in accordance with the bill of 22 December 1994.  The plaintiff defended those proceedings, pleading, inter alia, that the second defendant had failed to perform and complete the services for which it was retained and was thus not entitled to payment.  It was alleged that the second defendant had repudiated the retainer by refusing to accept the plaintiff’s instructions and withdrawing its services. By an amended defence, the plaintiff also alleged the existence of “special circumstances” for the purposes of the Legal Practitioners Act 1995, which it was asserted required the bill of costs to be referred to taxation.  That matter could only be determined by the Supreme Court, with the result that the Magistrates Court lacked jurisdiction to determine the matters before it.  The plaintiff claimed in addition an equitable set-off and cross-claim for loss and damage, including general damages at large for vexation, anxiety and distress, due to:

• the second defendant’s unconscionable conduct, the particulars of which were that the second defendant negligently or fraudulently acted to disadvantage the plaintiff and cause him financial loss and damage by deliberately acting to subvert the proper administration of justice by the Federal Court, by manipulation of the case to be pleaded before that court on the plaintiff’s behalf in the Paradise Grove proceedings; 

• the second defendant’s “negligent or deliberate acts and breach of contract”, including failing to protect the plaintiff’s assets, so that they were placed at risk by permitting the bankruptcy proceedings to be set down for hearing at a time when the senior counsel originally engaged to advise was not available, failing to consult the plaintiff as to the retention of a replacement counsel and failing to obtain a timely written advice from counsel. The plaintiff alleged that the second defendant “either negligently or deliberately instituted at the last possible moment, to represent the [plaintiff], an advocate who through inadvertence or deficient instruction intended to put [the plaintiff] at serious and expensive financial loss and disadvantage to the benefit and protection of the creditor [Paradise Grove].”

10. On 30 January 1997, shortly before the matter was to be heard in the Magistrates Court, the plaintiff issued an originating application in the Supreme Court seeking orders that the original bill of costs of 8 December 1994 be referred to taxation, the Magistrates Court proceedings be stayed and a trial of issues as to which party was responsible for the termination of the retainer and the legal consequences thereof. That application was heard on 16 April 1997 by Muir J, who dismissed it with costs. His Honour held that the bill of 8 December 1994 had been a provisional or conditional bill and had been replaced by the bill of 22 December 1994. His Honour also found that there was no reason why the question of the termination of the retainer and the consequences thereof could not be dealt with in the Magistrates Court proceedings.

11. On 24 June 1997, shortly before the new date allocated for the hearing of the Magistrates Court action, the plaintiff filed a further originating application in the Supreme Court for orders that the Magistrates Court proceedings were invalid and for orders in respect of the 22 December 1994 bill of costs, including that it be referred to taxation. He also sought trial by jury of the issue as to which party was responsible for terminating the second defendant’s retainer. On 4 November 1997, Moynihan J dismissed the application and restrained the plaintiff from taking any proceedings in the Supreme Court relating to issues raised in the Magistrates Court plaint without the leave of the court. Moynihan J also found that there was no reason why the issues in dispute between the parties concerning the termination of the retainer could not be litigated in the Magistrates Court action. I digress to note that I do not consider that the present proceedings by the plaintiff contravene the order of Moynihan J, which it is apparent from his Honour’s reasons, was directed to restraining further proceedings in this court during the currency of the Magistrates Court proceedings which might preclude its finalisation.

12. On 9 October 1998, judgment was given in the second defendant’s favour in the Magistrates Court proceedings and judgment was entered in the sum of $21,689.37.  The primary issue between the parties concerned the circumstances in which the second defendant’s retainer had been terminated.  The learned Magistrate found for the second defendant on that issue, concluding that the retainer had been wrongfully terminated by the plaintiff.  This decision was based in part upon an affidavit which had been prepared by the plaintiff and filed by him when representing himself before the Federal Court on 5 December 1994 to secure an adjournment of the Paradise Grove petition.  But in the alternative, the Magistrate held that, if the second defendant had terminated the retainer, it was because it was justified in doing so in view of the plaintiff’s conduct. He rejected the matters raised by the plaintiff by way of defence and counter-claim.

13. In reaching his decision, the Magistrate referred to the conflicting evidence that was placed before him as to the circumstances leading to the termination. This included two affidavits sworn by the first defendant, which outlined the advice given by the defendants in respect of the bankruptcy petition, including the first defendant’s initial view that the petition could be defended on the basis that the underlying costs order was open to review and his subsequent altered view arising out of the “changed circumstances”.  It also included evidence that the second counsel engaged by the defendants had provided a short opinion on prospects ahead of the hearing on 5 December 1994, in which counsel had apparently expressed the view that the certificate of taxation was a final order for the purposes of the Bankruptcy Act which, as the plaintiff had not applied to have it set aside, remained valid.  The first defendant outlined in his affidavit the advice that had been given to the plaintiff as to the need to set aside the taxation certificate and the failure of the plaintiff to take steps to do so.  He stated that counsel had also indicated that the Court could dismiss the petition if it was satisfied that the plaintiff was able to satisfy his debts.  The affidavit outlined that the plaintiff had refused to accept the opinion of the second counsel or his representation at the hearing of the Paradise Grove petition and on the morning of 5 December 1994 terminated the second defendant’s retainer. 

14. The reasons for judgment of the Magistrate included the following extract:

“On the whole of the evidence that has been placed before me I am unable to discern any improper conduct on the part of Mr Lippiatt in the way in which he handled the matter in so far as Mr Stubberfield’s actions or instructions were concerned. …

In the material that has been placed before the Court there have been allegations on both sides of impropriety and of various defamatory matters and misconduct.  It is not necessary for me in arriving at my decision in this case to rule or to adjudicate upon any of those matters.  And in fact it is my view that it is not necessary for me to make any findings as regards credibility because the defendant on his own version of the facts and on my interpretation of them was the person who “sacked” Mr Lippiatt.

However I have no reason not to accept the version of events as set out in the affidavit by Mr Lippiatt.  I am unable to discern from any of the allegations in the defence or in the outline of argument any defence to the claim by Mr Lippiatt. …

I am satisfied on the whole of the evidence that has been placed before me on the balance of probabilities that Mr Lippiatt has sustained his cause of action.  Having regard to the breach of the retainer by Mr Stubberfield or alternatively by Mr Lippiatt himself of being permitted in the circumstances to have terminated the retainer himself having regard to the conduct of the defendant.  However I am more prone to the view that it was Mr Stubberfield himself who terminated the agreement by his actions as referred to and that he was not justified in so doing.

… I accordingly find the case has been proven and I enter judgment against the defendant in favour of the plaintiff.  I am unable to discern from the counter-claim as alleged any cause of action or for that matter any damage alleged to have been sustained.

Therefore I am not in a position to assess or to quantify it. I dismiss the counter-claim.”

The Bankruptcy proceedings against the plaintiff

15. In July 1999 a sequestration order was made against the plaintiff’s estate which resulted in a payment by the trustee in bankruptcy to the second defendant in the sum of $52,154.00.  This included costs due in relation to work undertaken by the defendants on behalf of Kilner & Black (who had previously acted for the plaintiff and underwent a dispute in respect of their fees).  The bankruptcy was annulled in November 2001 after the plaintiff’s debts had been paid in full.

The appeal against the Magistrates Court decision

16. In June 2002, the plaintiff brought an application in the District Court seeking an extension of time in which to appeal the decision of the Magistrate. The application was refused, because no acceptable explanation was provided by the plaintiff for the long delay in bringing the application (even allowing for the period that the plaintiff had been a bankrupt) and because it was held that the overall justice of the case did not warrant an extension of time.

17. In July 2002, the plaintiff brought an application before the Court of Appeal for leave to appeal against the judgment of the District Court.  In addition, although making no formal application, the plaintiff in a written outline of argument advanced a claim under r 667(2)(b) UCPR, which permits the court to set aside an order obtained by fraud.  Both the application for leave and the claim under r 667(2)(b) were dismissed with costs.  In support of the claim under r 667(2)(b), the plaintiff raised a number of matters.  One of these concerned what was asserted by the plaintiff to be fraudulent conduct on the part of the second defendant in seeking to enforce the judgment.  That conduct was held not to constitute a basis for the relief sought.  The plaintiff also contended that there had been fraudulent conduct by the defendants in the swearing of affidavit material placed before the Magistrate.  In this regard, the plaintiff relied on the affidavits sworn by the first defendant for the purposes of defending the bankruptcy proceedings brought by Paradise Grove and sought to contrast them with the subsequent affidavit material sworn by the first defendant in the proceedings in the Magistrates Court.  The plaintiff’s contention was that differences in the contents of the affidavits as to the plaintiff’s prospects of resisting the Paradise Grove bankruptcy petition could only be explained by fraud.  Cullinane J (with whose judgment the other members of the Court agreed) dealt with these claims as follows:

“What is at issue here is not of course whether too optimistic a view might have been taken of the [plaintiff’s] legal position at the time of the first affidavit or whether too pessimistic a view of this was taken at the time of the later affidavit or whether the changed circumstances to which I have referred did or did not alter the applicant’s legal position. What is at issue is whether the different views taken of the [plaintiff’s] position in the two affidavits is capable of providing evidence of fraudulent conduct on the part of the [second defendant] as asserted by the [plaintiff].  This is the totality of the evidence he relies upon in support of this alleged fraudulent conduct. In my view it is plainly incapable of supporting such a claim.

Other matters raised by the [plaintiff] in support of his claim that the [second defendant] acted fraudulently concern the filing of two affidavits (one referred to as a long affidavit and the other as the short affidavit) and the manner in which the retainer came to be terminated. Apart from the bare assertion that the respondent acted fraudulently there is nothing to support the serious claims he makes in relation to these matters.”^[2]

The present Supreme Court proceedings

18. While it is difficult to discern precisely which paragraphs in the statement of claim relate to which pleaded causes of action, and the incoherency of the pleading makes it difficult to distil the claims made, they can be categorised generally as follows:

1. that the defendants’ conduct in the provision of professional services in respect of the Paradise Grove proceedings was negligent/ fraudulent and in breach of their fiduciary/contractual duties;

2. that the defendants acted in breach of the duty where there was a conflict of interest;

3. that the judgments and orders made against the plaintiff are void because they are tainted by fraud;

4. various civil claims, including for defamation and fraud, arising inter alia from the giving of false evidence in various proceedings involving the plaintiff;

5. claims arising from the failure to credit the plaintiff for the amount of $3,300 paid on account to the second defendant.

The power to strike out/stay proceedings as an abuse of process

19. The court has power under r 171 UCPR to strike out proceedings which are frivolous or vexatious or otherwise as an abuse of process.  The court also has an inherent jurisdiction or power to stay proceedings to prevent abuse of its process: von Risefer v Permanent Trustee Company Limited.^[3]  As mentioned, the defendants rely on both r 171 UCPR and the inherent jurisdiction of the court, but primarily on the latter. 

20. What amounts to an abuse of process is insusceptible of a formulation comprising closed categories. It includes proceedings which are shown to be frivolous, vexatious or harassing or to be manifestly groundless or clearly give rise to no cause of action and extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustified trouble and harassment.^[4]  It is an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings.^[5]  As the High Court reaffirmed in D’Orta-Ekenaike v Victorian Legal Aid^[6], a central and pervading tenet of the judicial system is that controversies once quelled are not to be reopened except in a few, narrowly defined circumstances.  However, the court’s power is to be exercised with great caution to ensure that a plaintiff is not improperly deprived of the opportunity for trial under the guise of achieving expeditious finality.^[7]

Are the proceedings an abuse of process?

(a)Negligent/fraudulent conduct, breach of fiduciary/contractual duties in the provision of professional services in respect of the Paradise Grove proceedings

21. In my view, an analysis of the matters pleaded in paragraphs 3 to 16, 31 and 43-44 of the statement of claim demonstrates the plaintiff seeks to re-litigate matters concerning the professional advice and work provided by the defendants to the plaintiff in respect of the Paradise Grove bankruptcy proceedings, which were canvassed before the Magistrates Court. In particular, the plaintiff seeks to re-litigate the entirety of the circumstances leading to the termination of the second defendant’s retainer, including the controversy as to the advice given to the plaintiff in respect of his prospects, the nature of the “changed circumstances” upon which the defendants altered their advice as to prospects, the nature of the advice of the second counsel (and the circumstances of his engagement) and whether the defendants were at fault in failing to set aside the certificate of taxation. This is made apparent by paragraph 22 of the reply, where the “particulars of negligence and breach of contractual and fiduciary duties” are stated.

22. Although the plaintiff has sought in some instances to recast the nature of the claims so that they differ in some respects from those raised before the Magistrate, it is clear that the plaintiff’s allegations concerning the defendants’ conduct in respect of the Paradise Grove bankruptcy proceedings concern the same factual matters that were raised by the plaintiff in the Magistrates Court action and which the Magistrate considered to lack substance. In addition, in alleging fraudulent conduct by the defendants in the conduct of the Paradise Grove proceedings, the plaintiff also seeks to re-agitate matters which he was unsuccessful in litigating in the Court of Appeal. Not only does the plaintiff seek to re-litigate these matters, but he also now seeks to litigate errors of law made by the Magistrate, notwithstanding the failure of the application for leave to appeal from that decision (see paragraphs 21, 33(a)(i) of the statement of claim) and to allege against the defendants knowledge of a conspiracy raised in other litigation^[8] concerning Paradise Grove and the Redland Shire Council (see paragraph 13(f) of the statement of claim). 

23. In my view, it is harassing and unfairly burdensome to re-litigate these matters the subject of determination between the plaintiff and the second defendant, in some cases, nearly eight years ago. And while the first defendant was not a party to those proceedings, it was the first defendant’s conduct that was the subject of the controversy between the present plaintiff and the second defendant in those proceedings.

(b)Conflict of interest and duty

24. The plaintiff also alleges breaches of the duty owed by the defendants in acting where there was a conflict of interest, because they appeared on their own behalf in the two proceedings in the Supreme Court, the Magistrates Court action and subsequently in the Federal Court (paras 17-18, 34-36 of the statement of claim). An appropriate occasion for such complaint was at the time of those proceedings and no acceptable reason is advanced as to why the matters could not have been so raised. Indeed, notwithstanding the plaintiff’s claim to the contrary (in paragraph 38 of the statement of claim), it is apparent from the judgment in the Magistrates Court that the plaintiff was able to make extensive submissions on the issue of the alleged conflict, (including references to authorities), as a basis for objecting to the court’s receipt of the defendants’ affidavits. The plaintiff was unsuccessful in those submissions. To raise these matters now is vexatious, harassing and unfairly burdensome to the defendants.

(c)Fraud tainting judgments and orders against the plaintiff

25. The plaintiff contends that false and perjured evidence was given by the defendants in the two proceedings in the Supreme Court, the Magistrates Court proceedings and the Federal Court proceedings brought by the second defendant (paragraphs 19-29, 44.6 of the statement of claim). It is alleged this resulted in judgments, a sequestration order and other orders being made against the plaintiff, which are tainted by fraud (paragraphs 36-38, 44 of the statement of claim).

26. The appropriate course where such allegations are made is to apply to the relevant court to set aside the judgment or order for fraud. This the plaintiff did (unsuccessfully) in respect of the Magistrates Court decision. The plaintiff did not appeal the decisions of Muir J or Moynihan J, nor did he seek to set them aside as obtained by fraud. Nor is it possible for this court to interfere with or disregard orders made in the Federal Court on the basis that they are now alleged to have been obtained by fraud. In those circumstances, to seek now to allege that false evidence has resulted in decisions and orders that are void is vexatious and an abuse of process.

(d)Civil claims alleged to resultfrom false evidence

27. The plaintiff also relies on the allegations that the first defendant gave false evidence (including by providing false affidavit evidence and a false report and giving false oral evidence in court) in order to found claims for fraud, breach of fiduciary duty, defamation, injurious falsehood, abuse of process, perjury and extortion or as particulars of those claims (paragraphs 18B,19, 20, 29-30, 32, 33, 36(d), 39-43, 44.1, 44.2, 44.6-9, 44.11 of the statement of claim).

28. I accept the defendants’ submissions that insofar as the plaintiff pleads causes of action relying on the affidavit material prepared for court or the evidence given in court by the defendants, the defendants are accorded immunity under the principle in Cabassi v Vila.^[9]  The same applies to claims where that evidence is relied upon as particulars of the causes of action pleaded.  In this regard, the plaintiff faces an insurmountable obstacle for it has been long recognised, as the High Court affirmed in Cabassi v Vila,^[10] that no civil cause of action lies in respect of evidence, however false and malicious it may be, given in the course of a judicial proceeding.  It matters not whether the action is framed as one for defamation, deceit, or for some other cause.  The rule is of general application and is based on considerations of public policy.

(e) Other claims

29. As to the claims that the prosecution of the bankruptcy proceedings brought by the second defendant gives rise to causes of action, including because they were instituted for improper purposes, such as to defame and oppress the plaintiff (paragraphs 30, 33, 39-43 of the statement of claim), there is no reason why the allegations of improper purpose could not have been made at the time of the relevant litigation and in those proceedings. It is harassing, vexatious and an abuse to do so now.

(f) Allegations concerning the amount of $3,300 paid to the second defendant

30. On 6 June 1994, the plaintiff paid the second defendant $3,300 on account of anticipated legal fees which was paid into the second defendant’s trust account. It appears that the amount was transferred from the trust account to the second defendant’s general account on 25 January 1995, apparently after the expiration of one month after the delivery of a bill in taxable form on 22 December 1994.

31. Although the Magistrates Court plaint was initially issued in the amount of $8,014.95, being the amount of the bill of 22 December 1994 less the $3,300 paid on account, it was subsequently amended to claim the full amount of $11,314.95. Judgment was awarded for that amount and the bankruptcy proceedings that followed did not give credit for the $3,300 that had been paid into the second defendant’s general account. The result was that the amount paid by the trustee in bankruptcy to the second defendant included an overpayment of $3,300.

32. The matter of the payment by the plaintiff of the $3,300 is raised in paragraph 44.18 of the statement of claim, but in the context of an allegation that the second defendant was not entitled to that amount because of the circumstances in which the retainer was terminated. That issue was determined in the second defendant’s favour in the Magistrates Court action and it is clearly an abuse of process for the plaintiff to seek to litigate that again.

33. However, the issue of the $3, 300 payment on account is also raised in paragraph 38.10(a) of the reply, this time in terms of an allegation of “misappropriation” of the money and contravention of the Trusts Act 1973 (Qld).  In his application filed on 1 December 2005 the plaintiff requested an accounting in relation to the $3,300.   Counsel for the defendants accepted that there was a double payment to the second defendant of the $3,300, but indicated that the fact of the double payment only came to the attention of the defendant’s solicitors after the accounting was requested by the plaintiff.  It is conceded that the plaintiff is entitled to be repaid the sum of $3,300.  It is also conceded by the defendants that the plaintiff should be permitted to plead such a case as may properly be brought in respect of the failure to credit the plaintiff for the payment of the $3,300, that such claims ought not be caught by a stay of the proceedings and that the plaintiff ought to have liberty to replead its case concerning the $3,300.  

Conclusion

34. An examination of the statement of claim reveals that the plaintiff seeks to relitigate matters already the subject of determination between the plaintiff and the second defendant many years ago, to raise matters which could have been raised in other proceedings and to litigate matters which cannot give rise to the cause of actions pleaded. As such the proceedings are vexatious, harassing and unfairly burdensome. Bearing in mind the caution that is required to be exercised in staying proceedings as an abuse of process, I nevertheless consider that the defendants ought to be protected from these and further like proceedings as seriously and unfairly burdensome to them and productive of serious and unjustified harassment. With the exception of issues arising out of the payment of the amount of $3,300 by the plaintiff, I am of the view that the proceedings ought to be permanently stayed as an abuse of process. As to any claim arising out of the payment to the second defendant of the sum of $3, 300, there is liberty to replead.

35. I shall hear submissions as to costs.