JOHNSON J: Before the Court are two separate proceedings commenced by the Plaintiff, Adriana Kostov.
In proceedings 2018/00300286 in the Administrative Law List, the Plaintiff has brought proceedings against St Vincent de Paul Housing, trading as Amelie Housing ACN 158 167 483. This is a statutory appeal from decisions made by the New South Wales Civil and Administrative Tribunal ("NCAT") with respect to a tenancy matter.
The second set of proceedings are brought by the Plaintiff against two Defendants, the First Defendant being St Vincent de Paul Housing trading as Amelie Housing ACN 158 167 483 and the Second Defendant, Women's and Girls' Emergency Centre Incorporated. These proceedings involve an appeal to this Court under the Local Court Act 2007 with respect to either or both decisions by a Magistrate refusing to allow the amendment of pleadings and a decision under Part 12.7 Uniform Civil Procedure Rules 2005 ("UCPR") dismissing a Statement of Claim for want of due despatch.
At the outset, it is appropriate to note that an appeal to the Supreme Court from NCAT is available, with the leave of the Supreme Court, on a question of law: s.83(1) Civil and Administrative Tribunal Act 2013. This is, as is clear, a narrow avenue of appeal, confined to a question of law and only by leave of the Court. The reason why there is such a narrow form of appeal will be apparent in this case because there have already been appeals brought internally within NCAT which have been decided adversely to the Plaintiff.
With respect to the second set of proceedings, which appear to challenge either a ruling with respect to pleadings or a dismissal of proceedings for want of due despatch, either or both of those decisions are interlocutory in nature. An appeal against an interlocutory judgment or order in the Local Court in civil proceedings is available only by leave of the Supreme Court, and only on a question of law: ss.39-40 Local Court Act 2007.
These two sets of proceedings first came before Registrar Bradford on Monday of this week, 15 October 2018. The Plaintiff did not appear and a Mr Buckley, solicitor, appeared as her agent. Ms Peterson, solicitor, appeared for the presently nominated First Defendant, St Vincent de Paul Housing trading as Amelie Housing and Mr Anderson appeared for the Second Defendant in the Local Court appeal, Women's and Girls' Emergency Centre Incorporated.
The Court was informed that the Plaintiff had been unwell and had been admitted to hospital and discharged on Sunday and that explained her absence.
Registrar Bradford made a number of orders and directed that the matter be placed in the Duty Judge list this morning. The orders made by the Registrar included that the Plaintiff file and serve by 2.00 pm on 17 October 2018 any further affidavit evidence and submissions that she seeks to rely on in respect of the names of the Defendants and as to whether the pleadings should be rejected by the Court pursuant to Rule 4.10(4) UCPR. Costs were reserved.
Following those orders having been brought to the attention of the Plaintiff, she initially made a request to my Associate by email that she appear by telephone today as she was not well and "being in the vicinity of Defendants when unwell is not appropriate in the circumstances". That request was declined. The Plaintiff was then reminded in a later email that she had Mr Buckley appear as her agent on Monday, and that if she was not going to appear herself, that course may be open to her again. An email from the Plaintiff indicated that Mr Buckley was not available today but she would try and find someone else to appear.
Yesterday at 1.17 pm, a further email came from the Plaintiff, directed to my Associate, which said:
"I refer to orders made regarding additional information by 2pm. Today is my birthday and I have been taken out for a surprise lunch and will have documents submitted by 3pm."
A document did come in yesterday in the form of a written submission.
Perusal of the judgments of NCAT indicate that the Plaintiff is legally qualified. It appears that she in fact works in a solicitor's office from time to time. To the extent that she is a litigant in person, she is not a litigant in person without legal training and understanding.
Today, the Plaintiff has not appeared. Mr Watson, solicitor, has appeared as her agent with very limited information about the matter. I am grateful for the attendance of Mr Watson, who has remained in Court. Clearly he is in a very limited position to assist the Court with the issues which have been raised today.
It is simply not clear why the Plaintiff is not here today. Clearly she is able to conduct activities, including her lunch activities yesterday.
The Plaintiff has obligations as a litigant under s.56(3) Civil Procedure Act 2005. She has brought these civil proceedings and is under a duty to assist the Court to further the overriding purpose, that is to facilitate the just, quick and cheap resolution of the real issues in the proceedings and to participate in the processes of the Court and to comply with directions and orders of the Court.
The expectation is that the Plaintiff, as someone who has commenced proceedings, will comply strictly with those obligations. These proceedings are before the Supreme Court of New South Wales, a very busy Court, where time has been taken up and will be taken up in considering these matters, and where other parties affected by the litigation which she has commenced are legally represented here, as they were on Monday. I will have more to say about that shortly.
There have been filed in the proceedings, on behalf of Ms Peterson's client, an affidavit of Carrie Nicole Peterson, sworn 11 October 2018 and an affidavit of John Kell, affirmed 10 October 2018. There is a folder of documents exhibited to Ms Peterson's affidavit.
To the extent that a considerable amount of paper has been generated by the Plaintiff in recent times about the question of the correct Defendant in these proceedings, I make the following observations.
With respect to the application for leave to appeal from NCAT, the Defendant in those proceedings was Ecclesia Housing Limited. The evidence makes clear that on 31 August 2018 a resolution was passed to change the name of "Ecclesia Housing" to "Amelie Housing". Accordingly, the proper First Defendant to these proceedings should be "Amelie Housing" with the appropriate ACN number.
It is quite clear that St Vincent de Paul Housing is not a proper party to these proceedings. The affidavit of Mr Kell, read together with the affidavit of Ms Peterson, makes that clear.
To the extent that the Plaintiff wants more time to issue subpoenas to explore the correct name of the Defendant and Mr Watson was instructed to make an application for adjournment for that to happen today, I decline to adjourn the proceedings.
It is crystal clear who the party should be as Defendant to these proceedings. It would be a waste of time and money to adjourn these proceedings to allow this issue to be further explored. It is apparent, in any event, that the Plaintiff has all the necessary paperwork which makes these issues clear. I will, in due course, make an order substituting the name of the Defendant in the proceedings.
With respect to Mr Anderson's client, I note that Women's and Girls' Emergency Centre Incorporated was nominated as a Second Defendant in the Local Court proceedings. It is entirely unclear why that was done. The position remains that that entity, which is a provider of valuable social services in the community to women and persons in need (including children), should not be required to waste its resources coming to Court to resist proceedings brought against it on an entirely unsatisfactory and unclear basis.
Mr Anderson applies today that his client be removed as a party from the proceedings being the appeal from the Local Court and I will make that order in due course.
I should make a number of observations, by reference to the history of the proceedings before NCAT. Before doing so I note, as Ms Peterson's affidavit makes clear, that her client, which has been the active Defendant in all these proceedings, is a crisis accommodation service which provides housing services to unaccompanied women or women with children who have experienced domestic violence or homelessness. That agency is one which should not be required to engage in ongoing and potentially open-ended litigation on the application of the Plaintiff unless there be an entirely proper basis, and clear and arguable causes of action involved.
It is well known in the community that there is a great demand for social housing, in particular for women and children who are forced to leave their homes because of domestic violence or homelessness. An agency of that sort should not be required to devote resources and costs to resisting litigation of this type, unless there is a clear and arguable case for it. If there is a clear and arguable case, the Plaintiff should be required to bring that case forward for hearing at the earliest possible time and with her discharging her duty to the Court under s. 56(3) Civil Procedure Act 2005 in that respect.
I should note that there is a link between the two sets of proceedings. The origin of the issues raised by the Plaintiff in the two sets of proceedings is the application made to terminate her tenancy. NCAT finally made orders and those orders remain on foot.
Meanwhile, the Plaintiff commenced proceedings in the Local Court purporting to seek damages because of what were said to be the consequences of the action taken in evicting her from the tenancy arrangement to which she had been subject.
It may be said that NCAT has given careful consideration to the matters concerning the Plaintiff.
The evidence before the Court today reveals that, on 27 July 2017, the Plaintiff entered into a residential tenancy agreement, which is included in Ms Peterson's exhibit folder.
On 4 October 2017, proceedings were commenced in NCAT against the Plaintiff seeking orders for termination and possession of the premises on the grounds of non-payment of rent by the Plaintiff, in breach of the agreement.
On 28 November 2017, General Member Campbell, in the Consumer and Commercial Division of NCAT, found in favour of the landlord and against the Plaintiff and made certain orders. Those orders required the Plaintiff to do various things. Thereafter, application was made to NCAT upon the basis that the Plaintiff had breached the orders and the proceedings were reinstated before NCAT.
On or about 30 May 2018, NCAT found in favour of the landlord and against the Plaintiff and a warrant issued for execution by the Sheriff to obtain possession of the property which was the subject of the tenancy agreement.
On or about 7 June 2018, the Plaintiff appealed against that decision. The appeal was heard by an Appeal Panel comprising Deputy President Schyvens and Senior Member Goldstein.
The hearing of the appeal proceeded on 26 July 2018 and was dismissed on 16 August 2018: Kostov v Ecclesia Housing Limited [2018] NSWCATAP 196.
It should be noted that NCAT explained (at [3] of the judgment) that the Plaintiff, having requested leave to appear by telephone, actually appeared in person at the commencement of the appeal hearing. According to NCAT (at [3]) "she immediately proceeded to make adverse comments about the respondent's conduct, threw plastic cups at the respondent, threw the water from a jug on the bar table over the respondent, and finally threw the empty jug at him" before leaving the courtroom, having decided not to take any further part in the proceedings.
NCAT found against the Plaintiff and (at [68]) indicated that it had been ascertained that the Plaintiff was admitted as a solicitor in New South Wales and Western Australia and that, in light of the conduct described in the judgment (see [36] above), the appropriate course was to request the Principal Registrar of NCAT to refer her conduct to the Office of the Legal Services Commissioner of New South Wales and the Western Australian Legal Practice Board for them to take whatever action they may consider appropriate, if any.
The Plaintiff made application, by way of internal appeal in NCAT, to set aside the decision of 16 August 2018. The hearing of that application came before Deputy President Boland and Principal Member Marks on 3 September 2018. The ground upon which the Plaintiff relied on that occasion was that the initial decision had been made in her absence "which resulted in my case not being adequately put to the Tribunal".
On 14 September 2018, the application was dismissed by the Appeal Panel: Kostov v Ecclesia Housing (No 2) [2018] NSWCATAP 215. The judgment of NCAT, constituted by very experienced and senior former Judges noted (at [10]) that the Plaintiff had informed the Tribunal that she "would not allow anyone to touch her clothing and personal effects". The Tribunal noted in the same paragraph that "the premises are conducted as a women's refuge for persons in need" and the Tribunal was informed that the "inability to rent out the premises has resulted in women in need being denied residential premises made available on a subsidised rental basis".
The Tribunal noted (at [21]) that the Plaintiff appeared at the hearing of that application.
It was noted (at [26]) that the Plaintiff was legally qualified and that "she works in a solicitor's office, but not in that capacity".
The decision of the Tribunal was stated succinctly at [39]:
"There is simply no basis upon which the applicant can claim that the order for possession which was made had no proper basis. That order is unassailable, and any attempt by the applicant to contend otherwise before this Tribunal is doomed to failure and is futile."
The application was dismissed.
The Plaintiff then made application to NCAT, constituted once again by Deputy President Boland and Principal Member Marks, that the decision of the Tribunal be suppressed and not published. That application was refused on 18 September 2018: Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221.
Finally, it appears that the Plaintiff made application to the original Appeal Panel constituted by Deputy President Schyvens and Senior Member Goldstein, that the Tribunal restrict publication of its decision. That application was refused on 9 October 2018: Kostov v Ecclesia Housing Limited (No 4) [2018] NSWCATAP 241.
I have recounted the history of the proceedings in NCAT for two reasons. Firstly, to show the thoroughness and care taken by NCAT on a number of occasions by Tribunals constituted by very senior practitioners or former Judges, to deal with the Plaintiff's claim. Secondly, to show the hurdle facing the Plaintiff in these proceedings.
The operative conclusion of NCAT under challenge in this appeal is the dismissal of the Plaintiff's claim on 14 September 2018 upon the basis that the challenge to the decision to terminate the tenancy agreement was "doomed to failure" and was futile.
That is what lies at the gateway to the Plaintiff's present litigation in this Court.
The Plaintiff seeks to challenge a decision of NCAT which expressed that her case there was essentially hopeless and that decision was expressed in circumstances where she had not turned up on one occasion, but did turn up on at least one other occasion and argued her case.
The Summons which constitutes the appeal from NCAT is, in my view, defective. It does not comply with the requirements of the UCPR or the Administrative Law List Practice Note. The grounds assert that the Plaintiff was absent from the hearing on 26 July 2018 and goes on to make various complaints about that hearing. Ground 5 is said to be "the decision makers did not make a proper assessment of this matter" in the circumstances referred to in Grounds 1-4.
The fact is that the Plaintiff did appear on the occasion when Deputy President Boland and Principal Member Marks made their decision on 14 September 2018 and that is the decision which appears to be the one under appeal.
If the Plaintiff chooses to persist with this litigation, it will be necessary for it to be properly formulated, identifying the alleged question of law and the basis upon which the Supreme Court is asked to grant leave to appeal.
With respect to the appeal from the Local Court, there is no formulated basis as to why the Supreme Court would consider granting leave to appeal, nor is there a nominated question of law. That Summons itself is defective for those reasons.
I have recounted the history of the litigation, because there is a real concern that, unless there is appropriate control over the litigation by the Court, then there will be considerable delay, running up of costs, including by agencies which have an important function in the community to provide emergency services for people in need, in circumstances which, on what I have recited so far, do not suggest that the Plaintiff has any viable or arguable case to advance in either of these statutory appeals.
In saying that, I am not at this stage purporting to dismiss them summarily. I am not asked to do that and I do not purport to do it. I merely make these observations in circumstances where the Court has a duty to litigants, including other litigants whose cases are being delayed whilst the Court considers these matters.
The appropriate course to take is to make an order in each case substituting the name of the Defendant and an order that Mr Anderson's client be removed as party to the proceedings. I will then ask Ms Peterson what further orders are appropriate to be made, given the judgment I have just delivered, and I will ask that Mr Watson, who is here (and I am grateful for his presence) communicate the tenor of what I have said to the Plaintiff. My judgment, when settled, will be emailed to Mr Watson, as well as to Ms Peterson and Mr Anderson, and to the Plaintiff.
I make an order in each proceeding that there be substituted for the present Defendant, "St Vincent de Paul Housing, trading as Amelie Housing ACN 158167483", the Defendant "Amelie Housing ACN 103181700".
I direct that the present Second Defendant in the Local Court proceedings, "Women's and Girls' Emergency Centre Incorporated" be removed as a Defendant in those proceedings.
It will be necessary for the Plaintiff, if she is to persist with these two sets of litigation, to correctly identify the party, consistent with the orders just made by the Court. I will at this point pause to ask Ms Peterson what further orders she seeks.
[Submissions made concerning further order and costs].
I have heard submissions with respect to further orders which should be made in light of the reasons which I have delivered. I have already made orders with respect to the substitution and removal of parties.
It is appropriate that this litigation move forward promptly, with the Plaintiff acting upon her obligation to the Court to facilitate the just, quick and cheap resolution of the real issues in dispute. As I have emphasised, these are narrow statutory appeals. They are not rehearings. They do not provide an opportunity for subpoenas to issue for various persons to attend.
I am satisfied that orders should be made to allow for the progress of the litigation in an appropriately efficient way.
I am satisfied that the Plaintiff should pay the costs of Amelie Housing for Monday and today on the usual basis.
I am satisfied that the Plaintiff should pay the costs of Women's and Girls' Emergency Centre Incorporated with respect to Monday and today, and I assess those costs by way of a gross sum costs order in the amount of $1,500.00 for the purposes of s.98 Civil Procedure Act 2005.
Accordingly, I make the following orders:
1. I grant leave to the Plaintiff to file and serve Amended Summonses in each proceedings which give effect to the orders made by the Court and the reasons contained in this judgment, with the Amended Summons to be filed and served by 5.00 pm next Monday, 22 October 2018. I direct further that the Plaintiff should not be allowed to rely upon any Amended Summons filed after that time, without the leave of the Court.
2. The remaining Defendant is to file and serve a Notice of Appearance by 5.00 pm on Wednesday, 24 October 2018.
3. The Plaintiff is to file and serve evidence with respect to the two proceedings by 5.00 pm on 5 November 2018. Once again, I direct that the Plaintiff should not be allowed to rely upon any evidence filed and served after that time, without the leave of the Court.
4. The Defendant is to file and serve any evidence upon which it relies by 5.00 pm on 19 November 2018.
5. I direct that the two sets of proceedings be placed in the Registrar's list at 9.00 am on 21 November 2018 for the purpose of fixing a hearing date.
6. I direct that the Plaintiff should not be permitted to issue any subpoena in these two sets of proceedings, without the leave of the Court.
7. I direct that the Plaintiff is to communicate only with Ms Peterson (or a solicitor in Ms Peterson's office) with respect to these proceedings and is not to communicate with any other person associated with the Defendant with respect to these proceedings.
8. I order the Plaintiff to pay the costs of the remaining Defendant for 15 and 18 October 2018 on the usual basis.
9. I order the Plaintiff to pay the costs of Women's and Girls' Emergency Centre Incorporated for 15 and 18 October 2018 in a gross sum of $1,500.00 for the purpose of s.98(4) Civil Procedure Act 2005.
10. Liberty to apply on two days' notice.
[2]
Amendments
19 October 2018 - Amendment to decision date on coverpage.
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: 19 October 2018