Dimitrovski v Boland (No 4)

1. An Order seeking leave to stay the current civil proceedings in the Supreme Court of New South Wales until a specified timeframe as determined by the Court to allow criminal proceedings to commence as against all the defendants.

2. An Order embargoing the civil judgment of Kunc J until the conclusion of the criminal proceedings.

3. An Order setting aside any costs based on the 1st, 2nd and 4th defendant's solicitor's conduct during these proceedings pending a tribunal investigation and/or disciplinary proceedings, or as determined by the Court.

4. An Order the defendant's pay the Plaintiff’s costs pending a tribunal investigation and/or disciplinary proceedings into the 1st, 2nd and 4th defendant's solicitor's conduct, or as determined by the Court.

5. An Order restraining the 1st, 2nd, and 4th defendant's solicitor to act in this matter pending a tribunal investigation and/or disciplinary proceedings.

6. An Order that compels the Watchtower Bible & Tract Society of Australia to appear in Court and answer questions and give oral evidence or other Order the Court thinks fit.

7. An Order vacating or varying any previous Court Orders by Kunc J in these proceedings deemed necessary and appropriate for management of the proceedings.

8. Such further or other Orders the Court thinks fit.

9. Costs reserved.

Procedural history

3. I have given leave today for the motion to be filed in Court and have made it returnable instanter. It is necessary to set out some of the procedural history to explain why that course has been taken and why I am proceeding to dispose of the motion today absence of the respondents to the motion (the first, second and fourth defendants, to whom I shall refer without disrespect as the Bolands).

4. In October 2023, the Court made orders for the hearing of a separate question in relation to this long-running dispute between Mr Dimitrovski and at the time his late sister and the defendants, primarily the Bolands: Dimitrovski v Boland [2023] NSWSC 1371. That separate question was determined adversely to Mr Dimitrovski by a judgment that I delivered on 6 February 2025: Dimitrovski v Boland (No 2) [2025] NSWSC 17. The earlier history of this matter is set out in [9] to [25] of No 2.

5. As a result of the outcome in No 2, it became necessary to consider what consequences should follow for the rest of the proceedings. After a further hearing in April and May 2025, the Court resolved the future of these proceedings in Dimitrovski v Boland (No 3) [2025] NSWSC 1527. These reasons should be read, and assume familiarity with, No 2 and No 3.

6. While No 3 was reserved, on 3 June 2025 Mr Dimitrovski emailed the motion to my Associate. In response, my Associate notified the parties:

"His Honour's judgment is in preparation. In the light of Mr Dimitrovski's proposed motion his Honour will restrict publication of the judgment once it is delivered pending determination of the motion. Accordingly the motion will be listed for directions at the time that judgment is delivered. The parties will be notified in the usual course when that is to occur."

7. In No 3*,* the Court refused Mr Dimitrovski leave to file a further amended statement of claim, dismissed the proceedings and made a number of other orders. Those orders, made on 16 December 2025, were:

1 The separate question is answered as follows: The plaintiffs are not entitled to the declaration sought in paragraph 4A of the Revised Fourth Further Amended Statement of Claim.

2 The plaintiffs are to pay the defendants’ costs of the determination of the separate question on the indemnity basis.

3 Leave to file the Fifth Further Amended Statement of Claim is refused.

4 Proceedings dismissed.

5 In addition to the costs referred to in Order 2, the plaintiffs are to pay the balance of the defendants’ costs of the proceedings on the indemnity basis.

6 The plaintiffs are to pay the defendants’ costs referred to in Orders 2 and 5 in the specified gross sum of $200,000 (GST inc) instead of assessed costs.

7 Directs Mr Dimitrovski is to serve and file by email to the Associate to Kunc J full written submissions in support of his motion dated 2 June 2025 on or before 28 January 2026.

8 Notes:

(a) On 4 February 2026 the Court will hear any further short submissions Mr Dimitrovski may wish to make limited to 15 minutes;

(b) The Court will then determine whether it can decide the motion immediately or whether it is necessary to invite submissions from the respondents;

(c) If the Court requires submissions from the respondents, a timetable will be ordered for those submissions and in submissions in reply to be provided in writing, with the motion to be determined on the papers;

(d) The Court does not require the respondents to take any steps in relation to the motion until after the hearing on 4 February 2026.

8. Because the motion included a prayer that the judgment be stayed and restricted from publication, as a precaution I did not publish No 3 on NSW Caselaw.

9. As will be apparent from the orders that I made on 16 December 2025, and in the interests of saving further costs in this long running dispute, I invited Mr Dimitrovski to provide the Court and the Bolands with his evidence and submissions in support of the motion. The Court would then consider whether what had been provided demonstrated a sufficiently arguable case that it would be necessary for the Court to call upon the Bolands to respond.

10. Mr Dimitrovski has provided to the Court with the following material: an affidavit sworn by him on 2 June 2025; an affidavit sworn by him on 26 January 2026; and a document dated 26 January 2026 and entitled, "Written Submissions in Support of the Plaintiff's Motion dated 2 June 2025". Mr Dimitrovski has confirmed to me today that is the total universe of the written material upon which he relies. He also took advantage of a further opportunity to address the Court this morning in which he reiterated his overarching submission that the Bolands had engaged in a fraud and a deception of which he, his late sister and Life Order Pty Ltd had been the victims.

Recent developments

11. Before turning to the specific orders sought in the motion, I set out the three matters that have arisen in recent times which Mr Dimitrovski contends are relevant to the exercise of the Court's discretion in relation to the motion.

12. The first relates to a criminal complaint which Mr Dimitrovski originally made to the police in 2010 concerning the conduct of the Bolands. That complaint has been reactivated recently with what Mr Dimitrovski considers to be the benefit of further information that has come to light during the course of the hearings before me.

13. The evidence is that the complaint Mr Dimitrovski has made to the police has an active complaint number. The evidence does not disclose to what extent the complaint is actively being investigated by the police, but I will assume for the purposes of this judgment in Mr Dimitrovski's favour that those investigations are continuing. What is important for present purposes is that there is no evidence that any prosecution has been commenced of anybody in relation to the matters which Mr Dimitrovski has drawn to the attention of the police.

14. The second matter is that Mr Dimitrovski has made a complaint to the Legal Services Commissioner concerning the conduct of the Bolands' solicitor in these proceedings, Mr Phillip Tull. In the course of his submissions to me at the hearing which led to No 3, Mr Dimitrovski made a number of serious allegations about the propriety of Mr Tull's conduct. In No 3 (at [94]) I expressed this conclusion about the allegations against Mr Tull:

The plaintiffs did not engage with the detail of the quantum sought by the defendants. The plaintiffs maintained the objections they had raised to an order for costs being made at all and raised matters such as whether Mr Tull was permitted to practice in NSW, whether he had a practising certificate or professional indemnity insurance, whether his practice was registered for GST and similar issues. All of these kinds of complaints were shown by the evidence to have no foundation. There was nothing in the evidence that could sustain the allegations of impropriety which the plaintiffs sought to raise against Mr Tull or against the defendants insofar as the way in which they had chosen to use Mr Tull’s services for the purposes of the proceedings is concerned.

15. The evidence in relation to Mr Dimitrovski’s complaint is that it was received by the office of the New South Wales Legal Services Commissioner on 14 January 2026. By a response from that office on 15 January 2026, Mr Dimitrovski was informed that his complaint had been received and that it had been allocated a file number. The letter asked Mr Dimitrovski to be patient while the office undertook its usual processes to investigate the complaint, which could include writing to Mr Tull.

16. The third matter of present relevance is that Mr Dimitrovski has informed me that he has filed a notice of intention to appeal from what I will assume for the moment to be all of my previous decisions in this case. Pausing there, I have informed Mr Dimitrovski that, in my respectful view, it is the appellate course which he must now pursue, and it will be a matter for him whether he now does so.

Disposition

17. Having carefully read all of Mr Dimitrovski's materials and heard him this morning, I have concluded that it is not necessary for the Court as a matter of procedural fairness to call upon the Bolands and to require the further expenditure of both time and money. That is because on its face I am more than satisfied that the Court would not, and in some respects could not, make the orders sought in the motion (set out in [2] above). Given this conclusion, I have proceeded to deliver these reasons notwithstanding that there was no appearance for the Bolands today.

18. I will briefly consider each of the substantive orders sought in the motion.

19. Order 1 seeks a stay of the present proceedings to allow criminal proceedings to commence as against all the defendants (including Mr Reid, who Mr Dimitrovski sought to bring back into the proceedings by his further amended statement of claim considered in No 3). There is no basis to stay these proceedings in circumstances where there are no criminal proceedings on foot and the Court has no evidence that would even enable it to conclude that there is a prospect that criminal proceedings will ever be brought.

20. As I have explained to Mr Dimitrovski, it is sometimes the case that when criminal proceedings are commenced that overlap with civil proceedings it is more often than not the defendants to the criminal proceedings who seek to have related civil proceedings stayed.

21. However, in the present circumstances where there is no indication as to whether any criminal proceedings are even likely, it would not be appropriate for the Court to make any kind of order staying the orders that I made on 16 December 2025 which brought these proceedings to an end. That is all that the Court could stay, because the proceedings are otherwise concluded.

22. Order 2 falls into the same category, being an order that my judgment be embargoed until the conclusion of the criminal proceedings. The reasons set out in [19] to [21] above also apply to explain why Order 2 will not be made.

23. As I indicated earlier, I refrained from publishing No 3 on NSW Caselaw against the possibility that Mr Dimitrovski would be able to demonstrate a proper basis on which publication of those reasons should be restricted. He has failed to do so and my Associate will arrange for the immediate electronic publication of that judgment.

24. Mr Dimitrovski’s submissions included expressions of concern about the influence my judgment in No 3 may have on some future jury. It is a matter for the future, and if criminal proceedings are commenced, for someone to make an application to the Court for the temporary restriction of my reasons if it were thought necessary for the fair and proper conduct of any criminal proceedings. However, again in the absence of any evidence that such proceedings are even likely, let alone as to what conduct may be the subject of any charges, it is not appropriate having regard to the principles of open justice that my judgment be restricted from publication.

25. Orders 3 and 4 relate to the costs of the proceedings by reference to the allegations concerning Mr Tull's conduct pending a tribunal investigation, or disciplinary proceedings, or as the Court may determine. In my respectful opinion, there is no basis to set aside the costs orders that I have made. Again, there is no evidence of what if any action may be taken against Mr Tull by reason of the complaint that Mr Dimitrovski has made to the Legal Services Commissioner.

26. The Court's conclusions concerning Mr Tull are reproduced in [14] above. They do not bind the Legal Services Commissioner. Nevertheless, it would be an extraordinary thing – and I can see no present basis (assuming the power) - to make either of the orders sought by Mr Dimitrovski as to costs dependent upon what he has submitted was the improper conduct of Mr Tull.

27. Order 5 seeks to restrain Mr Tull from continuing to act. Mr Dimitrovski has not demonstrated any basis on which at this stage the Court would make such an order. As a practical matter, the Court has no evidence that Mr Tull is continuing to act for the Bolands. It will be a matter for them whether they choose to retain him in any appeal which Mr Dimitrovski may wish to bring. While the Court undoubtedly has a supervisory jurisdiction that enables it to restrain solicitors from acting in particular circumstances, nothing in Mr Dimitrovski's material at the moment gives any reason for the Court to restrain Mr Tull from continuing to act for the Bolands if in fact it is the case that he will continue to do so.

28. Order 6 is an order that asks the Court to compel presumably a representative of the Watchtower Bible & Tract Society of Australia to appear in court to undergo some kind of examination. There are no proceedings on foot in which the Court could make such an order and, even if there were, the Court would not do so, even assuming relevance. That relevance remains completely obscure.

29. As part of Mr Dimitrovski's complaints against the Bolands I apprehend from the material that he has provided that he feels that there was misleading and deceptive conduct on the part of the Bolands by them apparently representing that they were Jehovah's Witnesses, as the Watchtower Bible & Tract Society of Australia is more commonly known. There is, in short, simply no basis for the Court either jurisdictionally (in the sense of power) or on the merits (assuming power), for the Court to make an order of the kind which Mr Dimitrovski seeks.

30. Finally, I do not propose to make an order vacating or varying any of the previous orders I have made. Mr Dimitrovski has made submissions that the orders that I have made should be set aside under UCPR 36.15 or based upon a general allegation of fraud. That rule provides:

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.

31. It is sufficient to make two observations.

32. First, insofar as fraud is alleged, it is neither adequately nor properly particularised. More importantly, as I understand it, Mr Dimitrovski seeks to reprise allegations about the conduct of the Bolands which have, as to their essentials, been determined by me as a matter of findings of credit and otherwise in No 2. As I have indicated to Mr Dimitrovski, those are matters which he is entitled to take up in any appeal, however they do not constitute a basis to set aside the orders I have made.

33. In relation to the specific application of UCPR 36.15, its focus is upon the setting aside of the giving or entry of a judgment or order of the Court. In Tutoveanu v Velez (No 2) [2025] NSWSC 594, I said:

[20] Division 4 of UCPR Part 36 is headed “Setting Aside and Variation of Judgments”. It contains rules 36.15 to 36.18. The scope and effect of those rules is, perhaps understandably, frequently misunderstood by litigants appearing without the benefit of legal assistance or legal training. It is therefore convenient at this point to set out the relevant legal principles.

[21] While the rules in Division 4 must be applied according to their terms, that application is to be against the background of the fundamental principle of public policy in favour of upholding the finality of judgments. The Court’s essential constitutional duty is to quell the dispute presented by the parties. The parties are generally given one opportunity for that to be done by a contested hearing on the merits. A multiplicity of litigation is to be avoided. A party which has been given that one opportunity and is dissatisfied with the outcome has a right of appeal, either as of right or by leave depending on the nature of the decision. Subject only to the possible application of the inherent jurisdiction of the Court or another recognised basis at common law, a final judgment or order at first instance will only be set aside or varied if one of the narrow possibilities identified in Division 4 is able to be satisfied. The rules contained in Division 4 are not a “back door” means of advancing what should properly be an appeal on the merits.

[22] Rule 36.15 provides:

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.

[23] The proper application of that rule was considered by the Court of Appeal in its judgment in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387:

16 The focus of Pt 36.15(1) is on the judgment or order that is attacked, and question is whether it was “given, … entered or … made” irregularly etc The focus is on irregularity in those steps, not on the merits of any decision, or the irregularity of other steps in the proceedings, or in the proceedings below.

17 The rule applies with particular force to default or consent judgments and orders, and those given or made ex parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits at which all parties were represented and fully heard.

…

44 The general rule is that final orders regularly made and formally entered can only be challenged on appeal or in proceedings to set aside the judgment for fraud. (Emphasis added.)

34. Applying those principles, the orders that I made on 16 December 2025 (and in my earlier judgments) have been made and there is nothing – and certainly not sufficient cause - in Mr Dimitrovski's material that would provide any basis for the Court to conclude that the giving or the entry of the Court's judgments or orders was irregular, illegal, or against good faith.

Conclusion

35. The Court understands that Mr Dimitrovski strongly believes that he and his late sister were wronged by conduct of the Bolands. The Court has considered the issues within the framework of the proceedings that Mr Dimitrovski has sought to bring and has reached the conclusions expressed in No 2 and No 3. I simply and respectfully reiterate that irrespective of what other course of action Mr Dimitrovski may wish to take in relation to the police or the Legal Services Commissioner, the matter upon which he should now focus in this Court, if he wishes to do so, is the prosecution of any appeal from my decisions.

36. I assume from their absence today that the Bolands have acted in accordance with the indication given in paragraph 8 of the orders made on 16 December 2025 (see [7] above). Therefore, the Court will make no order as to the costs of the motion.

37. The orders of the Court are:

38. The plaintiff's motion dated 2 June 2025 is dismissed.

39. Note that the Court makes no order as to costs.

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