[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.]
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EX Tempore Judgment
BELL P: This is the first directions hearing of a summons for judicial review filed on 6 March 2020 by Ms Adriana Kostov. Ms Kostov seeks judicial review of a decision of Hunt DCJ who struck out as incompetent a purported appeal by Ms Kostov to the District Court from a decision of Local Court Magistrate Milledge.
There is also before the Court, for directions, a notice of motion filed on behalf of the Director of Public Prosecutions (NSW) seeking orders that:
1. The "Office of Director of Public Prosecutions" be removed as first respondent.
2. The "Director of Public Prosecutions (NSW)" be added as first respondent.
3. The proceedings be dismissed pursuant to rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW).
When the matter was called on for directions at 4.30pm yesterday afternoon, there was initially no appearance by Ms Kostov. She did, however, join the call remotely and participated in the call for approximately 20 minutes. During that time, she confirmed that she had no opposition to the substitution of the Director of Public Prosecutions NSW as first respondent in the proceedings, and accordingly, I have made an order to that effect.
As I indicated to Ms Kostov and the Solicitor for Public Prosecutions, who also appeared at the directions hearing remotely, I had received and read two sets of submissions filed by Ms Kostov together with the submissions which had been filed on behalf of the Director. I drew the parties' attention to the fact that Ms Kostov is currently subject to a vexatious proceedings order made on 19 November 2018 under the Vexatious Proceedings Act 2008 (NSW). Ms Kostov challenged that order by seeking and obtaining leave to appeal from it in the course of 2019, but subsequently discontinued the appeal.
Accordingly, she remains subject to the vexatious proceedings order made in 2018. In those circumstances, I raised with the parties and Ms Kostov, in particular, the issue of whether or not, as a result of the vexatious proceedings order, she was required, prior to the institution of the current judicial review proceedings in this Court, to obtain leave under the Vexatious Proceedings Act. In that context, I drew her attention to s 13(1), (2) and (3) of the Vexatious Proceedings Act, which relevantly provides:
"(1) If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings:
(a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16, and
(b) another person may not, acting in concert with the person, institute proceedings without the leave of an appropriate authorised court under section 16.
(2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section.
(3) Any proceedings that are stayed by subsection (2) are taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4)."
I should also note the terms of s 8(9) of the Vexatious Proceedings Act which provides that a vexatious proceedings order does not stay or prohibit a person from instituting or conducting criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person, except as expressly specified in the order.
I drew attention to s 8(9) of the Vexatious Proceedings Act, because the proceedings which Ms Kostov seeks to challenge by way of judicial review may well meet the description of "criminal proceedings" within the meaning of that subsection. That does not necessarily mean that the judicial review proceedings which she seeks to bring in this Court have that character.
In this context, I referred both parties to the decision of this Court in Klewer v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 69, a decision handed down shortly prior to the directions hearing in this matter.
Given the terms of s 13 of the Vexatious Proceedings Act, it seemed to me necessary, as an essential first step, prior to making any directions for the hearing of the summons for judicial review and the balance of the Director's notice of motion seeking the dismissal of the proceedings, to allow the parties an opportunity to make submissions by reference to s 13 of the Vexatious Proceedings Act as to:
(i) whether or not Ms Kostov required leave pursuant to the Vexatious Proceedings Act prior to the institution of the judicial review proceedings, and
(ii) what the consequences, if any, of her failure to obtain that leave might be.
I foreshadowed, whilst Ms Kostov was still participating in the hearing, that I would set a timetable in which such submissions should be provided. Ms Kostov initially indicated that she would only need a couple of days to make those submissions but, again whilst she was still on the telephone, I indicated that I proposed to give both parties a week from today to file and exchange written submissions on the two questions I have indicated, with a further week to file and exchange reply submissions on that topic.
It was at the point of formulating those directions that Ms Kostov ceased to participate in the hearing. Because of her ceasing to participate in the hearing from that point, I thought it important to record in a judgment what had transpired at the directions hearing as a useful record through which to draw Ms Kostov's attention to the directions of the Court and to provide the context in which those directions have been made.
I should add for completeness that, prior to her leaving the telephone call, Ms Kostov indicated that she wished to have the vexatious proceedings order set aside pursuant to s 9 of the Vexatious Proceedings Act. She claimed that she had filed an application with the Court to secure that goal. I was not in a position to know whether any such application has been filed; if so, whether the application was regular in the sense of complying with the rules; and whether or not the necessary filing fees have been paid or any waiver of those fees has been sought.
Irrespective of that fact, it would not be appropriate, in my opinion, for any such application to be made in the course of these proceedings, as Ms Kostov suggested in her oral submissions in the course of the directions hearing. This is for the reason that, if leave was required to institute these judicial review proceedings and was not obtained, the effect of s 13(2) and (3) of the Vexatious Proceedings Act is that these proceedings were initially stayed and then taken to have been dismissed 28 days after their filing.
If Ms Kostov has made or wishes to make an application to vary or set aside the vexatious proceedings order as a preliminary step to bringing judicial review proceedings, or if she wishes to seek leave under the Vexatious Proceedings Act to bring the judicial review proceedings, those courses remain open to her, subject to obtaining, where necessary, any extension of time that may be required.
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Conclusion and orders
For these reasons, I make the following orders:
1. the Director of Public Prosecutions (NSW) be substituted for the "Office of the Director of Public Prosecutions" as first respondent.
2. Both parties to file and exchange by 4.00pm on Monday 27 April 2020, written submissions on the question of whether or not leave pursuant to the Vexatious Proceedings Act 2008 (NSW) to commence judicial review proceedings was required and what consequence, if any, flows from the failure to obtain such leave.
3. Direct any submissions to be filed and served in reply by 4.00pm on Monday 4 May 2020.
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Post Script
The above reasons were delivered ex tempore and have been corrected only for typographical and grammatical purposes. Just as the dictation of the reasons was being completed in open court, with the Solicitor for Public Prosecutions still appearing remotely, Ms Kostov rejoined the call. I explained that in her absence I had delivered a short judgment setting out my reasons for the directions I had foreshadowed prior to her leaving the call, and indicated that these reasons would be made available to both parties as soon as possible.
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Decision last updated: 21 April 2020