[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
STERN JA: This is a further application made by Mr Kannapiran Chinna Arjunan and Ms Thangam Kannapiran (the first and second applicants respectively, together the "applicants"), arising out of proceedings relating to a dispute between the applicants and Neighbourhood Association DP 285853 (the "respondent") regarding unpaid levies and costs. Those proceedings were commenced by the respondent in the Local Court in January 2020. The respondent sought unpaid levies in the sum of $2,795.91 and costs. After the applicants paid the outstanding levies, the Local Court determined the outstanding issue of the respondent's costs in favour of the respondent and ordered the applicants to pay the respondent the sum of $28,238, representing costs incurred by the respondent. The applicants then sought to appeal that decision to the Supreme Court.
Before that application was heard, the applicants sought declaratory relief, including a declaration that the appointment of the respondent's lawyers was invalid and that the respondent's claim for costs be dismissed as the respondent's lawyers had purported to act without authority. That motion was dismissed by Hamill J on 24 March 2022: Arjunan v Neighbourhood Association No DP 285853 [2022] NSWSC 691. The applicants unsuccessfully sought, before Rothman J, to vary that order: Arjunan v Neighbourhood Association DP No 285853 [2022] NSWSC 746. The applicants' appeal against the decision in the Local Court was then heard by Adamson J (as her Honour then was). To the extent leave to appeal was required it was refused and the appeal was dismissed on 9 November 2022: Arjunan v Neighbourhood Association DP No 285853 (No 3) [2022] NSWSC 1524. The applicants applied, on 21 November 2022, to set aside and vary the orders of Adamson J. That application was dismissed with costs by N Adams J on 1 December 2022: Arjunan v Neighbourhood Association No DP 285853 [2022] NSWSC 1663.
By summons dated 6 February 2023, the applicants sought leave to appeal from the decisions of both Adamson J and N Adams J. That application was dismissed with costs on 19 May 2023: Arjunan v Neighbourhood Association DP No 285853 [2023] NSWCA 103 ("Arjunan (No 1)"). On 2 June 2023 the applicants filed a motion to set aside and vary the decision in Arjunan (No 1) and to vacate orders 1 and 3 made by the Court in Arjunan (No 1), both of which related to costs. That application was dismissed on 3 August 2023: Arjunan v Neighbourhood Association DP No 285853 (No 2) [2023] NSWCA 176 ("Arjunan (No 2)"). The applicants then filed a motion dated 17 August 2023 seeking to set aside and vary the orders made in Arjunan (No 2). On 8 November 2023, that application was dismissed with costs: Arjunan v Neighbourhood Association DP No 285853 (No 3) [2023] NSWCA 266 ("Arjunan (No 3)"). The Court also made a Teoh direction (Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324) that:
"If Mr Kannapiran Chinna Arjunan or Ms Thangam Kannapiran files any further application against Neighbourhood Association DP No 285853 in respect of the matters litigated in the Supreme Court of New South Wales or the Court of Appeal seeking, in substance, leave to appeal from the orders of Adamson J of 9 November 2022 or N Adams J of 1 December 2022, or leave to reopen the orders of the Court of Appeal made on 19 May 2023, 3 August 2023, or 8 November 2023, the Registrar shall promptly vacate the return date, notify the parties, and refer the papers to a judge nominated by the President to determine, in Chambers, whether the Court should fix a new return date and notify the parties, or whether Mr Kannapiran Chinna Arjunan or Ms Thangam Kannapiran should be invited to show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process."
The present notice of motion, filed on 29 November 2023, seeks under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 36.16(3A) to set aside and vary the orders made in Arjunan (No 3). In accordance with the direction made by this Court in Arjunan (No 3), the matter was referred to me. I directed that the applicants show cause in writing why the Court should not, in Chambers, summarily dismiss the proceedings as vexatious and an abuse of process. In response to that direction, the applicants requested that the filing of submissions be deferred pending a determination whether leave should be granted to the applicants to issue a subpoena. That deferral request was refused. On 14 December 2023 the applicants filed ten pages of submissions with nineteen pages of documentary evidence annexed. The applicants also filed an affidavit of Mr Arjunan dated 22 November 2023 (incorrectly referred to as an affidavit of 21 November 2023 in the submissions) which, properly analysed, was more in the nature of submissions than evidence. I have taken into account all of the material filed by the applicants on this motion and on previous applications, which the applicants have referred to on this occasion.
I did not require submissions from the respondent on this motion.
In the interests of brevity, I do not propose to repeat what was found in each of the earlier decisions referred to above. These reasons assume a familiarity with the substance of those judgments.
[3]
The current notice of motion
On 21 November 2023, Mr Arjunan emailed the Court of Appeal email filing team seeking to file a notice of motion dated 21 November 2023 and an undated subpoena to produce documents. On 22 November 2023 the applicants filed an affidavit in support of the notice of motion and application for leave to issue a subpoena and sent a further email following up on the filing of the other documents. Leave to issue the subpoena was refused on 28 November 2023. On 29 November 2023, the notice of motion was successfully filed on JusticeLink, along with the (undated) subpoena to produce documents.
The following orders are sought in the notice of motion:
"1. Allow the motion to set aside and vary the decision made on 8.11.23 and to grant leave to issue subpoena.
2. Grant leave to issue subpoena to produce documents as requested in the attached Form 26A (version 4) UCPR 33.3.
3. Applicants to make a submission after accessing the subpoenaed documents within 5 working days.
4. Grant leave to appeal and allow the appeal and finally determine the appeal concurrently as per UCPR 51.14 (reasons in White Folder page: 19).
5. Decide this motion on papers to save cost and time.
6. The respondent to pay the costs for this motion and all other proceedings.
7. All costs orders in all proceedings are net of insurance claims."
The applicants' notice of motion is brought pursuant to UCPR, r 36.16(3A). Under that rule, the notice of motion must be filed within 14 days after the judgment or order is entered. As orders were made in Arjunan (No 3) on 8 November 2023, any application under UCPR, r 36.16(3A) should have been filed by 22 November 2023. However, given that the notice of motion was emailed to the Court of Appeal filing team on 21 November 2023, I am satisfied that adequate written notice was given to the Court within the 14 day period proscribed such that the application can be entertained: Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [11] (Ipp, McColl, Basten JJA); Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336 at [10] (Campbell JA, McColl JA and Sackville AJA agreeing); Aukuso v Tahan [No 2] [2018] NSWCA 302 at [43], [45]-[46] (Simpson AJA, Macfarlan JA agreeing; Meagher JA at [5] holding that there was no power to entertain the application in the circumstances of that case).
As I recently explained in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283:
"17 As is well-established, the power conferred by UCPR, r 36.16 is to be exercised "sparingly and with caution" having regard to the importance of the finality of litigation, and "does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them": Majak v Rose (No 5) [2017] NSWCA 238 ("Majak") at [12]-[13] (Leeming and Simpson JJA, Emmett AJA). The purpose of the power is "to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal": Majak at [12].
18 In Autodesk v Dyason (No 2) (1993) 176 CLR 300 at 302-303; [1993] HCA 6 Mason CJ said:
"What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.
…
However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put ... The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases."
19 These principles apply to applications under UCPR, r 36.16(3A): Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9] (Campbell JA, McColl JA and Handley AJA agreeing) and Lawrence v Ciantar (No 2) [2020] NSWCA 186 (Bathurst CJ, Meagher and Gleeson JJA) at [6]. The power under r 36.16(3A) should be "exercised with great caution, having regard to the importance of the public interest in the finality of litigation": Lawrence v Ciantar (No 2) at [7]."
These principles are of significant resonance in the circumstances of the present application in light of its history as summarised above.
The applicants bear the onus of establishing that the power under UCPR, r 36.16(3A) should be exercised: Majak v Rose (No 5) [2017] NSWCA 238 at [19] (Leeming and Simpson JJA, Emmett AJA).
[4]
Consideration
In the application now before the Court, the applicants, for the third time, are seeking a reversal of the orders of this Court in Arjunan (No 1) refusing leave to appeal against the orders of Adamson J and N Adams J. The issue before me is whether I should dismiss Mr Arjunan's motion as vexatious and an abuse of process. A single judge of the Court of Appeal has power to do so pursuant to s 46(1)(b) of the Supreme Court Act 1970 (NSW) read with UCPR, r 13.4: Proietti v Proietti (No 3) [2023] NSWCA 199 at [16] (Leeming JA).
For the reasons set out below, I have concluded that this application should be summarily dismissed as vexatious and an abuse of process. The material which the applicants rely upon on in this application do not raise any new issue and the issues raised have now repeatedly been determined against the applicants.
The applicants first contend that this Court, in Arjunan (No 3), overlooked or did not consider material evidence, arguments or submissions and erred by treating the applicants' contentions as seeking to reagitate issues already dealt with. That contention is without merit. In Arjunan (No 3) the Court identified the applicants' arguments, evidence and principles, and identified where, in previous decisions, the applicants' contentions had already been considered and rejected.
Second, the applicants contend that they have been denied procedural fairness. That contention was considered and rejected as a basis for varying or setting aside previous orders in Arjunan (No 2) at [19] and Arjunan (No 3) at [28]. It is without merit. As is apparent from the brief analysis set out below, the applicants have now repeatedly been heard as to the substance of the matters of which they complain.
Third, the applicants contend that the rights of the respondent are not adversely affected. Even if this were a basis for the relief now sought by the applicants, which may be doubted, the contention is without merit given that it rests on the premise that the respondent's costs, which were the basis of the orders made against the applicants in the Local Court, were covered by an insurance claim. That contention has been rejected as a basis for varying or setting aside previous orders: Arjunan (No 2) at [16]-[18] and Arjunan (No 3) at [22]. As is apparent from Arjunan (No 2) at [17], the respondent's legal representative submitted to the Court on 9 May 2023 that the insurance claim made by the respondent was for legal defence costs, and that that claim did not cover the proceedings in the Local Court in which the respondent was the moving party. The contention of the applicants that the respondent had withheld evidence of the insurance claim which would have resulted in the Local Court excluding costs covered by insurance was rejected in Arjunan (No 2) at [18].
Fourth, and relatedly, the applicants contend that evidence relating to the respondent's insurance has been withheld and that there is potential duplication of costs if those costs are also covered by the insurance claim. Again, those contentions have already been ventilated and determined against the applicants: Arjunan (No 2) at [16]-[18] and Arjunan (No 3) at [22]. Relatedly, in Arjunan (No 1) at [45], this Court found that the applicants' allegations that the respondent had given false evidence in relation to the insurance claim were unsubstantiated.
Fifth, the applicants contend that the respondent's lawyers acted without authority to approve the incurring of costs by the respondent and that this was done knowingly. That contention that the respondent's lawyers acted without authority has now been made by the applicants, and rejected, on multiple occasions: Arjunan (No 1) at [29]-[35]; Arjunan (No 2) at [8]-[14]; Arjunan (No 3) at [20].
Sixth, the applicants contend that the Court, in Arjunan (No 3), overlooked "the legal principle" as to whether the Community Land Management Act 2021 (NSW) provides for the New South Wales Civil and Administrative Tribunal to make orders for the recovery of unpaid contributions with interest and costs. This contention was addressed and rejected by this Court as being without merit in Arjunan (No 1) at [36]-[38]. It was then reagitated and rejected in Arjunan (No 2) at [15] and Arjunan (No 3) at [21].
Seventh, the applicants submit that the Neighbourhood Management Statement for the deposited plan (referred to by the applicants as the "bylaw") which enabled the respondent to recover its costs is invalid on the basis of inconsistency with the Community Land Management Act. That contention was considered and rejected by this Court as being without sufficient merit to warrant the grant of leave to appeal in Arjunan (No 1) at [26]-[28]. It was also considered and rejected in Arjunan (No 3) at [19].
The applicants' contentions that their submissions and evidence, or relevant legal principles, were overlooked in Arjunan (No 3) are without merit. So too is the applicants' contention that they have been denied procedural fairness and that the case has not been finally determined. This application merely seeks to relitigate issues that have already been determined against the applicants. It is vexatious and an abuse of process.
[5]
The proposed subpoena
The applicants also seek leave to issue a subpoena to the managing agent of the respondent and to the head of claims of the respondent's insurer, CRM Brokers, to produce:
"Copies of Legal cost Invoices and claim papers against which the insurance claim was processed and settled by the insurer that relates to $43,893 RECORDED AS CLAIM RECEIVED in the financial statement of the NHA DP 285853 as of 30.9.21."
Leave was refused by Senior Deputy Registrar Clayton on 28 November 2023 on the basis that at the time when that subpoena was filed, there were no active proceedings. In doing so, Registrar Clayton observed that as at 28 November 2023, the motion had not been filed and entered into JusticeLink and therefore he considered "the motion has not been filed". There is no error in that decision. The motion was filed on 29 November 2023 after Registrar Clayton's refusal of leave to issue the subpoena.
I have, however, treated the submissions made by the applicants as, in effect, a further application for leave to issue that subpoena. That leave should be refused.
It is apparent that the documents are being sought by the applicants in order to support the contention that the respondent had received payment pursuant to its insurance policy in respect of the same costs that were claimed in the Local Court and that the respondent withheld evidence of the insurance claim. As set out above, those contentions have been considered by this Court, and rejected, in Arjunan (No 2) at [16]-[18] and Arjunan (No 3) at [22]. The applicants should not be permitted to reagitate those contentions.
In these circumstances, leave to issue the subpoena should be refused.
[6]
Conclusion
The orders of the Court are as follows:
1. The applicants' notice of motion filed on 29 November 2023 is dismissed.
2. Leave to issue a subpoena is refused.
[7]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 December 2023