Supreme Court of NSW|2022-12-01|Before: Association No DP, Adams J, Neighbourhood Association DP, Association Number DP, Hamill J, After Hamill J, Rothman J, Adamson J
Association No DP, Adams J, Neighbourhood Association DP, Association Number DP, Hamill J
Source
Original judgment source is linked above.
Judgment (2 paragraphs)
[1]
REVISED FROM EX TEMPORE
By summons filed on 29 December 2021, the plaintiffs, Kannapiran Arjunan and Thanyam Kannapiran appealed against a judgment in the sum of $28,238 entered against them on 2 December 2021 in the Local Court in favour of the defendant who I shall refer to as the "Neighbourhood Association".
On 24 March 2022, the plaintiffs sought declaratory relief before Hamill J in relation to matters pertinent to that appeal from the Local Court. That notice of motion was dismissed by Hamill J that day: Arjunan v Neighbourhood Association Number DP 285853 (2022) NSWSC 691.
After Hamill J dismissed the motion, the plaintiffs purported to seek a variation to that order under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") before Rothman J.
A further notice of motion was filed to that effect and heard by Rothman J on 26 May 2022: Arjunan v Neighbourhood Association Number DP 285853 (2022) NSWSC 746. The orders sought are set out in [18] of the decision of Rothman J. At [39] his Honour states that there was no good reason given as to why leave to reargue an aspect of that motion before Hamill J should be granted. His Honour then observed at [40] that in any event leave to appeal would not be granted by a judge in the Common Law Division and could only be considered by the Court of Appeal.
Subsequent to those two interlocutory decisions, the appeal from the Local Court came before Adamson J for hearing on 7 November 2022. On 9 November 2022, her Honour refused leave to appeal in respect of grounds 2 and 3, otherwise dismissed the appeal and ordered the plaintiffs to pay the defendant's costs of those proceedings, including the costs subject to the order by Rothman J: Arjunan v Neighbourhood Association DP No 285853 (No 3) [2022] NSWSC 1524.
By notice of motion filed on 21 November 2022, the plaintiffs now seek a number of orders in relation to the decision of Adamson J. Those orders are as follows:
"1. The judgment in favour of the defendant on 9 November 2022 be set aside and varied.
2. That enforcement action be stayed until the application to set aside judgment is decided.
3. That the application for a stay of enforcement be dealt with on an urgent ex parte basis in chambers.
4. Grant leave to appeal grounds where it is required and allow the appeal.
5. Set aside and vary the decision of the Court below on the grounds of appeal.
6. Declare that the AGMs held from 2018 to 2021 were invalid and their resolutions are all invalid.
7. Declare that Grace Lawyers has acted without authority in these proceedings with Local Court and Supreme Court and therefore their cost claim dismissed.
8. Declare that by-law 13 of the NHA is invalid.
9. Declare that the O'Connor agent has been acting without a valid agency agreement.
10. Dismiss legal cost claimed and awarded against Grace Lawyers who acted without authority at the proceedings in the Court below and the Supreme Court of New South Wales.
11. Defendant to pay the plaintiff costs of and incidental to the summon and motion.
12. All cost orders by Local Court and NSWSC be subject to cost assessment and proportional."
Arjunan v Neighbourhood Association No DP 285853 [2022] NSWSC 1663 | Case summary | Zoe
In support of that notice of motion submissions were filed as well as an affidavit of the first plaintiff affirmed on 21 November 2022. That affidavit was read on the motion. That matter came before the Registrar for first return on Monday 28 November 2022. I do not have a transcript of what occurred on that date, but I do have the Registrar's record of proceedings which is on the file. It notes that on that occasion she noted that the defendant's solicitor is to write to the plaintiffs in relation to the notice of motion filed by close of business on 29 November 2022 and the matter was stood over before the Registrar today. There is a short factual dispute about what occurred on that day that is only relevant to the question of costs, and I shall return to that later in these reasons.
On 28 November 2022, the solicitor for the defendant wrote to the plaintiffs and provided a detailed explanation as to why the notice of motion was doomed to fail. The plaintiffs were invited in that letter to withdraw the notice of motion prior to 5pm on Wednesday 30 November 2022. In the event that they did not do so, they were advised that the defendant would rely upon that letter on the question of costs, including that costs be paid on an indemnity basis.
The plaintiffs did not withdraw their notice of motion. When it came before the Registrar for further directions today, it was referred to me in my capacity as Duty Judge. I commenced hearing this motion at approximately 12.30pm. It is now 3:10pm (I did not sit for one hour and 20 minutes to attend to other duty matters during that time).
The first plaintiff, Mr Arjunan, appeared for both plaintiffs self-represented. He also did so before Adamson J. He provided written submissions in response to the letter dated 29 November 2022 which were also before me. It is pertinent to set out the relevant provisions of the UCPR which provide a very limited exception to the principle of finality.
UCPR r 36.15 provides a general power to set aside a judgment or order if it has been made irregularly, illegally or against good faith. UCPR r 36.15(2) provides that a judgment or order can be set aside by order of the court if the parties consent. UCPR r 36.16 provides a further power to set aside or vary a judgment or order UCPR r 36.17 provides for the correction of a judgment where an accidental error has occurred. These relevant provisions of the UCPR are as follows:
36.15 General power to set aside judgment or order
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.
36.16 Further power to set aside or vary judgment or order
(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
(2) The court may set aside or vary a judgment or order after it has been entered if--
(a) it is a default judgment (other than a default judgment given in open court), or
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or
(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.
(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it--
(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.
(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).
(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.
36.17 Correction of judgment or order ("slip rule")
If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
The plaintiffs' written submissions in support of the motion were factually and legally dense and the procedural history of the matter was somewhat lengthy. When I asked Mr Arjunan to identify what needed to be corrected in her Honour's judgment such that I would vary the judgment in some way, he proceeded to make submissions concerning [41] of the decision of Adamson J concerning the validity of a relevant byelaw. On a number of occasions when I invited him to articulate why the judgment or order should be varied, he continued to raise arguments that have already been determined by her Honour and also in earlier decisions of this court.
Ms Parker, who appeared for the defendant, brought my attention to the decision of Hamill J that I have already referred to and that of Rothman J. I am satisfied that the arguments that the plaintiffs have raised as a basis to vary Adamson J's decision have already been heard by Rothman J and Hamill J.
In support of his argument that the orders sought in the notice of motion should be made, Mr Arjunan also relied upon a number of decisions of the Court of Appeal including that of Janson Pty Ltd v Edmonds [2022] NSWCA 61. I have had regard to that decision. It is not a case where the court was prepared to reopen proceedings. Rather, it stands as authority for the general proposition that if a discrete matter has been overlooked in a judgment the solution is not to always or even ordinarily appeal directly to the Court of Appeal. Rather, the judge's attention should be drawn to it and he or she should be invited to address it. It was in that context that the court referred to UCPR r 36.16.
The plaintiffs also relied upon the decision of the Court of Appeal in Nominal Defendant v Livaga [2011] NSWCA 121 to the effect that where an apparent error can be readily addressed without the need to resort to expensive and time consuming appeal proceedings, that course should be permitted and encouraged. These principles are all well-established and do not assist the plaintiffs in this matter.
Although the notice of motion was filed after judgment was entered, it was filed within the 14-day time limit prescribed by UCPR r 36.16(3)(a). That is a procedural rule which means that the applicant is not precluded from seeking to vary an order simply on the sole basis that judgment has been already entered. Beyond that no provision was properly identified as providing a basis upon which the plaintiffs could seek the orders they do in the notice of motion.
I am satisfied that the plaintiffs do not fall within any of the conditions precedent in UCPR r 36.16(2). The judgment of Adamson J was not a default judgment nor was it given in the absence of the plaintiffs and nor does it relate to proceedings for the possession of land.
I have already noted that UCPR r 36.15 provides a general power to set aside a judgment or order if it was made irregularly or illegally or against good faith. I am not satisfied that the judgment ought to be set aside under that rule either. In order for a judgment to be entered irregularly there must non-compliance with specific provisions governing the making or entering of judgments. I am not satisfied that there has been any irregularity in the judgment whether substantial or otherwise. Nor am I satisfied that the judgment was entered illegally such as to be contrary to the law.
The nub of the plaintiffs' complaint appears to be that there are errors in the judgment and that her Honour did not refer to some arguments relied upon by the plaintiffs. Those allegations do not suggest a lack of good faith and are matters more appropriately raised in any appeal to the Court of Appeal.
Even if there was some technical irregularity which I have not been able to ascertain for the purposes of this notice of motion, there is nothing to suggest that it would be consequential or causally related to the making of the final judgment or order.
The only remaining power is under UCPR r 36.16(3) which limits the court's power to set aside or vary a judgment insofar as it dismisses proceedings. The effect of that subsection is that even if the plaintiffs could establish some basis to vary the judgment or order, no variation could be made that would change the result. To put that another way, the plaintiffs' proceedings were dismissed and UCPR r 36.16 prohibits any variation to that result.
A further fundamental difficulty with this notice of motion is the application of the principal of finality. Although it is to be accepted that these rules provide a limited departure from the principle of finality, the fact remains that there is a public interest in maintaining the finality of litigation. The public interest requires great caution in the exercise of the power, especially where the variation sought would have the practical effect of reopening the proceedings to enable a significant rehearing. I am satisfied that that is what the plaintiffs seeks to do in this case. Even if he was permitted to do so, the fact remains that the result would have to remain the same.
Ms Parker submitted that not only were the plaintiffs informed by Rothman J that you cannot seek a variation of a decision of another judge in this division, they were also told that by the Registrar at the directions hearing on 28 November. To the extent that the plaintiffs are disgruntled with the decision of Adamson J, they can seek leave to be appeal to the Court of Appeal against that decision.
Turning to the orders sought and dealing with them in turn, I am not satisfied that there is any basis to set aside or vary the order given the scope of r 36.16(3). Orders 2, 3, 4 and 5 are all orders in which this court is functus and should be raised in the Court of Appeal should any application for leave to appeal be filed there. In relation to orders 6 and 7 this court is functus in relation to those. They have already been determined by Hamill J and Rothman J. As for orders 8 and 9 they are new matters that Ms Parker submits have not been raised before and are not matters that I would have jurisdiction to determine in any event on a notice of motion after the proceedings have been finalised. Orders 10, 11 and 12 pertain to costs. I have no jurisdiction to dismiss the costs claim in the Supreme Court. Costs follow the event and that is an order connected with the primary judgment. Nor is there a proper basis for me to order that there be cost assessment of the Local Court and Supreme Court proceedings. That is a matter that can be dealt with by standard cost assessment procedures.
That leaves order 11 which is that the defendant pay the plaintiffs' costs of and incidental to the summons and motions. The plaintiffs have been unsuccessful. There was no reason to depart from the usual rule that costs follow the event. In the letter sent to the plaintiffs on 28 November 2022, the defendant's solicitor put the plaintiffs on notice of the problems with their motion and gave them the opportunity to withdraw it without any order for costs being sought. The plaintiffs did not take advantage of that reasonable offer on behalf of the defendants.
Accordingly, the question arises as to whether I would order that the plaintiffs pay the costs of this notice of motion on an indemnity basis. Indemnity costs are not made to punish an unsuccessful party for persisting with a case that fails. Rather, such an order is made to compensate a successful party for costs incurred in certain circumstances. Such circumstances include when litigation has been conducted unreasonably or in bad faith. In Hamad v State of New South Wales [2002] 188 ALR 659 at [20] it was held that indemnity costs can be ordered when the court takes the view that it was unreasonable for a party to have subjected the other party to the expenditure. The question arises as to whether it was unreasonable for the plaintiffs to persist with this notice of motion after being informed by the Registrar that the appropriate avenue was the Court of Appeal.
Having received the letter from the defendant's solicitor dated 28 November 2022 setting out the relevant law and having been informed by Rothman J in his decision at [40] when a litigant is dissatisfied with the decision of a judge in this division the appropriate course is to the Court of Appeal, this motion was pressed.
When I invited Mr Arjunan to address the question of indemnity costs, he submitted that in the letter provided by the defendant's solicitor there is no express reference to UCPR r 36.3 and the fact that orders cannot be made changing an order to dismiss proceedings. He submitted that had that been spelt out in the letter then we would not have persisted with the notice of motion.
On its face, that submission is somewhat difficult to accept. Given the history of the matter and the other proceedings and given that he has been self-represented for some time, there is nothing to suggest that he would have withdrawn the notice of motion had a further subsection simply being added to it.
However, the fact remains that the very helpful letter from the defendant's solicitor did not specifically refer to the subrule upon which my ultimate decision turned.
There is no duty or obligation for the defendant to provide legal advice to a self-represented plaintiff so to the extent that the defendant complained of that, that complaint is unfounded. The more significant difficulty is this: Ms Parker submitted that when the matter was before the Registrar on Monday, she specifically addressed UCPR r 36.16(3) in oral submissions. Mr Arjunan denies that is the case. I do not have the transcript of those proceedings. It seems to me that if I was to obtain that transcript and it revealed that Mr Arjunan was in fact informed of that at the hearing then the order to pay costs on an indemnity basis would with be irresistible.
Despite that, I am not in a position to make that factual finding in the absence of the transcript, and it seems to me that the costs for the defendant incurred by standing this matter over in order to obtain that transcript exceed the difference between the order that the costs be paid on an ordinary basis rather than an indemnity basis for the appearance by Ms Parker here today.
It is regrettable that the plaintiff (who also appears on behalf of his wife) has proceeded today in the face of the letter provided. It seems to me that the matter is very finely balanced but given that there is no reference to UCPR r 36.16(3) in the letter and a factual dispute about whether it was drawn to the plaintiffs' attention before the Registrar, I do not propose to order that the costs be paid on an indemnity basis.
Accordingly, I make the following orders:
1. The notice of motion is dismissed.
2. The plaintiffs are to pay the defendant's costs of the motion on the ordinary basis.
[2]
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Decision last updated: 06 December 2022