PRACTICE AND PROCEDURE - Application for stay of proceedings until costs paid in previous proceedings - Subsequent proceedings substantially the same - Order made
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PRACTICE AND PROCEDURE - Application for stay of proceedings until costs paid in previous proceedings - Subsequent proceedings substantially the same - Order made
Judgment (2 paragraphs)
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Judgment - EX TEMPORE (REVISED)
By notice of motion filed on 16 November 2016, YPOL Pty Ltd ("the first defendant") seeks an order pursuant to s. 67 of the Civil Procedure Act 2005 (NSW) ("the Act") and Rule 12.10 of the Uniform Civil Procedure Rules 2005 (NSW) ("the Rules") that these proceedings be stayed until the plaintiff has paid the first defendant's assessed or gross sum costs of proceedings previously brought in this court numbered 2016/131955 and styled Adriana Kostov v YPOL Pty Ltd and Jeffrey Easton.
The first defendant also seeks an order pursuant to r. 2.1 of the Rules that the plaintiff desist from communicating with the first defendant, its servants, agents, employees and legal representatives, in connection with the proceedings, or the subject matter of the proceedings, other than by email to a nominated email address.
The first defendant also seeks an order that the plaintiff pay its costs of the motion.
The motion is supported by two affidavits of Malcolm Cameron, solicitor, affirmed on 16 November 2016 and 30 November 2016 respectively. There are various exhibits annexed to the affidavit material. I will return to parts of those exhibits later in this judgment.
It should be noted that the plaintiff forwarded correspondence yesterday to the Registrar of the Court, attaching a letter and an affidavit of 30 November 2016. The accompanying email to the Registrar stated (inter alia) as follows:
"I am seeking to resolve these issues direct with the parties so that these matters do not continue to 2017, and, as such, would prefer the parties are ordered into mediation as opposed to these proceedings."
The Registrar responded by noting receipt of the plaintiff's correspondence before saying the following:
"I would however reiterate that it is necessary for you to attend or alternatively to have someone represent you today. I have advised you of this in the past and that it is not just for people to say that they are not coming. As you are aware two of your actions are in the list today. Together with a motion. Orders could possibly be made in your absence and the other parties who attend may well make applications in respect of the proceedings and for costs. I strongly recommend that you be represented."
The notice of motion came before the Registrar this morning and was referred to me as the Duty Judge. The plaintiff has not appeared before either the Registrar or myself today.
The proceedings between the plaintiff and first defendant have something of a history which may be outlined as follows.
On 29 April 2016, the plaintiff commenced proceedings ("the first proceedings") against the first defendant and Jeffrey Easton (the second defendant). It is not necessary for present purposes to outline the nature of the cause of action brought by the plaintiff in the first proceedings. Quite apart from anything else, the cause of action is very difficult to comprehend from the manner in which the statement of claim in those proceedings was pleaded.
On 11 July 2016 Harrison J made orders dismissing the first proceedings as against the first defendant, setting aside service of the statement of claim on the second defendant, refusing the plaintiff's application to amend the statement of claim and ordering that the plaintiff pay the costs of the first and second defendants as agreed or assessed: Kostov v YPOL Pty Ltd [2016] NSWSC 961.
On 25 August 2016 Rothman J heard a motion brought by the plaintiff seeking an order that the decision of Harrison J be set aside. That motion was dismissed by his Honour, who also ordered that the plaintiff pay the first defendant's costs on an indemnity basis.
On 26 August 2016, the day immediately following Rothman J's dismissal of the plaintiff's motion, the plaintiff brought further proceedings ("the current proceedings") against the same defendants. Again, it is not necessary for the purposes of disposing of the present motion to detail the allegations in the statement of claim filed in the current proceedings. What can be said is that generally speaking, the allegations in the current proceedings, and the factual substratum which is said to support them, appear to be broadly the same as was the case in the first proceedings.
On 15 November 2016 the solicitors for the first defendant forwarded to the plaintiff a draft application for an assessment of its costs in the first proceedings in the sum of $52,624.50. At the present time, those costs have not been paid.
In recent weeks and months, the plaintiff has taken to forwarding what could only be described as vitriolic and offensive correspondence to directors of, and the solicitors for, the first defendant. That correspondence is contained in the various exhibits to the affidavits of Mr Cameron to which I referred earlier. I do not propose to detail each and every piece of correspondence sent by the plaintiff which might be said to fall into the categories that I have described. Reference to a representative sample of it will demonstrate its general nature.
On 28 September 2016 at 1.32am, the plaintiff sent an email to a number of persons who I infer are directors of the first defendant, as well as to Mr Cameron. The email read in part:
"FUCK OFF, how clear can I be? FUCK OFF, FUCK OFF."
That email forwarded an earlier email sent by the plaintiff to Mr Cameron which contained the following:
"Please advise the freak below to never contact me again.
I previously requested such direct (sic) to himself, I do not want him contacting me again.
All I want is for all of you to all fix your mistakes, the hurt you have caused me, and never, ever, come near me, or anyone close to me, ever again.
Please get that message through your heads and learn what it means to be a real gentlemen (sic)."
On 28 September 2016 at 2:00am the plaintiff forwarded an email to two persons who I infer are directors or employees of the first defendant, stating (inter alia) as follows:
"Dear Katherine,
Since you appear to be the only senior female on the YPOL team, can you please tell the above to back off and leave me alone.
They started with their pathetic games on he (sic) 16 September and they just will nto (sic) go away and leave me alone.
Please tell them to back off before someone else physically will I can no longer control the actions of those around me.
PLEASE ENSURE THEY GET IT IN THEIR HEADS THAT I DESPISE THEM, THEY ARE A BUNCH OF PERVERTED OLD FREAKS. I DO NOT NEED THEIR CRAP AND I WANT THEM TO GO AWAY."
On 29 September 2016 the plaintiff forwarded a further email to a number of persons whom I infer are directors of the first defendant. This email followed an incident on 28 September 2016 when the plaintiff attended the premises of the first defendant and threw raw eggs into the foyer area, and poured red wine into one of the lift carriages operating in the building from which the first defendant conducts its business.
The email of 29 September 2016 was entitled "Enjoy the wine losers" and said the following:
"… & pity Monis didn't shoot at your office in Martin Place instead of the Lindt Cafe. he probably figured you losers were not worth it".
On 4 October 2016, the plaintiff forwarded a further email to a number of persons, some of whom I infer are directors of the first defendant. She expressed a desire for "this to be over" and asked that the matter be "remedied". The email concluded with the following:
"I am not a fake like many of the false materialistic and dull persons that surround yourselves. Hence when I get slightly frustrated, I throw wine and eggs at times."
In respect of the first of the orders sought in the notice of motion, s. 67 of the Act is in the following terms:
Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.
Rule 12.10 of the Rules is in the following terms:
If:
(a) as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and
(b) before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced,
the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit.
Note : See also section 67 of the Civil Procedure Act 2005 as to the terms on which a stay may be granted, and rule 42.20 as to costs payable in relation to proceedings that are dismissed.
In my view, the circumstances I have outlined are such that the first defendant should be protected against the unpaid costs of the first proceedings which were dismissed by Harrison J, before having to incur further costs defending the current proceedings. This is particularly so in circumstances where the plaintiff's claims in the current proceedings are substantially the same as those which were made in the first proceedings. There should therefore be a stay of the current proceedings pending payment of the costs awarded in favour of the first defendant in the first proceedings: see Pi v Zhou [2016] NSWCA 148 at [31] per Gleeson JA.
As to the second order sought, the correspondence to which I have referred speaks for itself. In McGuirk v University of New South Wales [2010] NSWCA 104, Sackville AJA observed at [147]:
"If a party to litigation persists in sending another party or its legal advisors a large volume of communications that are irrelevant to the issues in dispute, a court may well come to the view that directions curtailing the flow of those communications or restricting the manner of their distribution are appropriate for the speedy determination of the real issues between the parties.
That could be the case if the sheer volume of communications is likely to divert the recipients from concentrating on the real issues, thus making the statutory objective of a speedy determination of the real issues which are in dispute more difficult to achieve."
His Honour then said at [162]:
"The width of the power conferred by r. 2.1 is striking. The court is given the power at any time to give such directions and to make such orders for the conduct of any proceedings, whether or inconsistent with the rules of court. for the just, quick and cheap disposal of the proceedings."
His Honour went on to observe at [163]:
"If a party to proceedings repeatedly sends gratuitously offensive or threatening communications to the other party or its legal representative, it will not usually be difficult to conclude that it is convenient for the just, cheap and quick disposal of the proceedings to make directions or orders requiring the party to desist from such conduct."
His Honour's observations are directly apposite to the circumstances of the present case. What is also of significance is that in the present case, the actions of the plaintiff have not been limited to simply sending offensive and threatening correspondence, serious though that may be. Her actions have extended, as I have indicated, to attending the first defendant's premises and engaging in what could properly be described as acts of vandalism.
The conduct of the plaintiff is such that the speedy determination of the real issues between the parties requires that the second order which is sought be made. In the absence of such an order, I am satisfied that the actions of the plaintiff would be likely to continue to divert those to whom they are directed from concentrating on the real issues, thus making the statutory objective of a speedy determination of those issues more difficult to achieve.
Accordingly, for those reasons I make the following orders:
1. Pursuant to s 67 of the Civil Procedure Act 2005 (NSW) and r. 12.10 of the Uniform Civil Procedure Rules 2005 (NSW), these proceedings are stayed until the plaintiff has paid the first defendant's assessed or gross sum costs of Supreme Court proceedings 2016/131955 styled Adriana Kostov v YPOL Pty Ltd and Jeffrey Easton.
2. Pursuant to r. 2.1 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff is to desist from communicating with the first defendant, its servants, agents, employees and legal representatives, in connection with the proceedings or the subject matter of the proceedings other than by email to the first defendant's solicitors at the following email address: FirstDefendant.257819.2016@sparke.com.au.
3. I direct that the Registrar of the Court inform the plaintiff of these orders by 5pm on Thursday 1 December 2016 by email at adrianakostov@y7mail.com.
4. I order the plaintiff to pay the first defendant's costs of the notice of motion.
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Decision last updated: 25 February 2019