[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.]
[2]
Judgment
THE COURT: On 19 September 2016, this Court dismissed an application for leave to appeal from a decision of Wilson J delivered on 7 April 2016: Kostov v Zhang [2016] NSWCA 262.
The decision of the Court concerned an unsuccessful attempt by the applicant to have two separate proceedings she had commenced in the District Court transferred to the Supreme Court pursuant to s 40 of the Civil Procedure Act 2005 (NSW). The history of the proceedings is sufficiently set out in the earlier decision of this Court.
An application for an extension of time and for special leave to appeal to the High Court was made by the applicant and refused on 8 March 2017: Kostov v Zhang [2017] HCASL 52. Bell and Gageler JJ stated that:
"The application concerns a matter of practice and procedure in the exercise of discretion in accordance with settled principles. An appeal to this Court would have no prospect of success. Hence it would be futile to grant the extension of time sought. Special leave should be refused."
On 14 October 2016, this Court determined an application pursuant to s 98(4) of the Civil Procedure Act made by the first and third respondents for a payment of costs in a gross sum. The Court awarded costs under that section in the amount of $15,000: Kostov v Zhang (No 2) [2016] NSWCA 279. No application was made by the applicant for special leave to appeal nor was any application made within the time period fixed by the Uniform Civil Procedure Rules 2005 (NSW) r 36.16 for any variation of that order.
On 12 December 2017, over 12 months after this Court had determined the issue of the gross sum costs order, the applicant filed a notice of motion in this Court seeking the following orders
"1. Orders of 14 October 2016 made by the Court of Appeal to be set aside;
2. Orders of District Court proceedings be set aside;
3. Matter to be referred to the Supreme Court for rehearing."
No power to make any of the three orders sought in that notice of motion was identified by the applicant, either in the motion, her evidence or her submissions.
Three affidavits sworn by the applicant on 2 February 2018, 16 March 2018 and 20 March 2018 were eventually filed in support of her notice of motion. Most, if not all, of the information contained in and annexed to those affidavits does not relate to the gross sum costs order the subject of order 1 of her motion.
The applicant's affidavit sworn on 2 February 2018 commences by referring to an affidavit apparently sworn by her on 12 December 2017, which the applicant confirmed by email on 3 April 2018, was not relied upon for the purposes of her motion. The content of the 12 December 2017 affidavit, part of which is purportedly set out in the affidavit sworn on 2 February 2018, includes allegations about the conduct of Gibson DCJ in defamation proceedings in the District Court apparently heard after the applicant's motion in this Court had been finally determined.
The essence of the affidavit sworn on 2 February 2018 is in the nature of a submission asserting that this Court should not have heard the application for leave to appeal which it decided on 19 September 2016. The applicant in effect repeats the claim that certain medical evidence relied upon in her application for an adjournment should have been acted upon by the Court. The failure to do so is described as "grossly unreasonable." That evidence was, however, addressed by the Court in its decision: [2016] NSWCA 262 at [20] and [23]. No reason has been shown to doubt that the material was properly taken into account and accorded such weight as it deserved.
The affidavit sworn on 2 February 2018 also annexes a series of incomplete and redacted documents containing some transcripts of argument before Gibson DCJ and some medical evidence apparently tendered by the applicant in separate contempt proceedings in which she was engaged with another party in 2017. The relevance of those documents to this application was not explained.
The affidavit sworn on 16 March 2018 is incomprehensible. It contains what may be excerpts from a transcript of separate proceedings, apparently conducted before Gibson DCJ, which are in aid of a submission, ultimately made in paragraph 109 of the affidavit, that:
"Given, her Honour Justice Gibson, has demonstrated there is no justice to be found, in the District Court, I submit, this matter, should be re-heard, in the Supreme Court."
The affidavit sworn on 20 March 2018 annexes a more expansive version of the medical evidence annexed to the affidavit sworn on 2 February 2018 and some medical evidence from 2017, together with a collection of emails and transcripts from the separate contempt proceedings in 2017 and proceedings before Gibson DCJ in 2017.
Written submissions were filed by the applicant and the respondents to the motion. The applicant's written submissions dated 22 February 2018 stated that:
1. she requested an oral hearing as it "will take some time to present all evidence and arguments";
2. adverse findings were made "unfairly" against the application in the September 2016 decision of this Court and that "given the nature of these proceedings" the Court of Appeal has power in addressing this motion, which it should exercise, to set aside all previous judgments of the District Court and this Court in the matter;
3. this Court fell into error of the kind described by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. The decision of the Court of Appeal was "grossly unreasonable" and was asserted to provide "another basis for setting aside orders made in the District Court";
4. the orders made in the District Court were tainted by bias, prejudice, lack of procedural fairness and should be set aside;
5. the applicant has been unfit to be in legal proceedings since October 2016. "Highly damaging" orders were made by the District Court knowing that the applicant was unwell;
6. the orders made by the District Court on 2 February 2018 should not have been made as the applicant was unwell;
7. the orders made by the District Court on 16 February 2018, where the applicant apparently attempted to have the orders of 2 February vacated, should not have been made;
8. the District Court has refused to adhere in proceedings before it to (unidentified) orders made by the Supreme Court in separate contempt proceedings;
9. the orders made by the District Court on 11 May 2018 should not have been made; and
10. given the nature of the conduct of the District Court proceedings they should be "re-heard" in the Supreme Court.
The second respondent filed an affidavit of Ms Leanne Norman sworn on 8 March 2018, which provided formal proof of the order of the High Court refusing special leave to appeal from the September 2016 decision of this Court. The first and third respondents filed brief submissions on 8 March 2018 as did the second respondent. The essence of those submissions was that:
1. there was no basis to make proposed order 1 in the applicant's notice of motion as the applicant had not addressed the topic of the October 2016 orders in her evidence or submissions;
2. proposed order 2 could not be made as it was incumbent on the applicant to commence separate proceedings seeking leave to appeal out of time; and
3. proposed order 3 could not be made as it was essentially seeking to agitate the issues already addressed in the September 2016 judgment in respect of which special leave to appeal to the High Court had been refused.
Consideration
The applicant does not have a right to an oral hearing of a motion filed in respect of proceedings which have been completed in 2016 and where orders of the Court were entered then. This motion does not constitute an application for leave to appeal within the meaning of the Uniform Civil Procedure Rules 2005 (NSW) r 51.15. For the reasons which follow, the motion and accompanying evidence does not raise any arguable basis to make proposed order 1 and so far as proposed orders 2 and 3 are concerned, the motion is incompetent. No basis has been shown why other litigants' cases must await the further prosecution by the applicant of such an application by oral hearing which she asserts "will take some time". The application for an oral hearing is refused.
It will be recalled that order 1 of the applicant's motion concerns the orders of 14 October 2016 regarding costs payable as a gross sum to the first and third respondents. No evidence or submission directly addressed order 1. No basis was identified by the applicant as permitting the Court to consider proposed order 1. The only possible basis in this case is UCPR r 36.15 which provides:
"General power to set aside judgment or order
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."
The judgment of the Court was perfected in October 2016. The width of the power in UCPR r 36.15 as traditionally understood may now need to be re-considered by reason of the decision of the High Court in Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12, where the High Court said:
"[69] In the Full Court, [the unsuccessful respondent] submitted that a strict approach to the requirements for a court to set aside its own perfected judgment, which confined the general power to fraud, would have an absurd consequence. It would mean that misconduct that is discovered before an appeal might be sufficient for the appellate court to order a new trial but if discovered after the appeal then it would not be sufficient. There is nothing absurd about this consequence. As Debelle AJ correctly observed in the Full Court, the submission ignores the interest of finality in litigation. As five members of this Court said in Burrell v The Queen, the interest of finality means that "[l]ater correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly." Even then, if the misconduct amounts to fraud, equity supplies a narrowly defined exception to the principle of finality that permits rescission of a perfected judgment by the original court even after the appeal process has been concluded.
[70] This litigation is a good illustration of the need for a strict approach to finality. The trial judgment which was set aside on Players' application, and the new trial which was ordered, concerned events that occurred nearly 25 years ago. The original 29-day trial was held almost 13 years ago. Issues related to the trial have been the subject of three appeals to the Full Court of the Supreme Court of South Australia, three applications for special leave to appeal, and the present appeals to this Court. Even apart from the non-financial impact upon the parties of the prolonged dispute, the legal costs of these proceedings must be many multiples of the underlying value of the licences, which, at best, was $750,000." (footnotes omitted)
Assuming for present purposes in the applicant's favour that she is entitled to invoke UCPR r 36.15, and that Clone does not affect the breadth of the power previously understood to be provided by UCPR r 36.15, no warrant has been shown to set aside the order for costs entered against her pursuant to that rule.
The applicant's reliance upon Minister for Immigration and Citizenship v Li is misconceived. The principle described in that case is addressed to an administrative decision maker. This Court, Wilson J and the District Court were not in hearing the applicant's case acting as administrative decision makers. The principle in Li has no application. Even if it was possible to describe the orders of this Court in September 2016 as "grossly unreasonable" that would not provide a sufficient basis for them to be set aside under UCPR r 36.15. Special leave to appeal from the September 2016 decision was refused by the High Court.
The order of the Court was not made "irregularly, illegally or against good faith". The applicant's application for an adjournment of the September 2016 proceedings was considered, as was the evidence she then relied upon. There was nothing "irregular" in the rejection of the applicant's application for an adjournment. Taking into account all of the subsequent evidence she now relies upon does not lead to any different conclusion.
In any event, as earlier pointed out, the only challenge the applicant makes in the present motion by proposed order 1 to proceedings in the Court of Appeal is to the separate order made in October 2016 about costs. There was virtually no attention paid by the applicant in her evidence and her submissions to the decision made in October 2016. There is no arguable basis in the evidence to suggest that there was anything "irregular" in the making of that gross sum costs order. Proposed order 1 in the applicant's notice of motion filed on 12 December 2017 must be dismissed.
So far as proposed orders 2 and 3 of the applicant's notice of motion filed on 12 December 2017 are concerned, it is clear that the notice of motion is incompetent.
As to proposed order 2, it is apparent that the orders about which the applicant complains were made on 2 February 2017 (and on subsequent dates) in the District Court in relation to this matter. Her rights of appeal to the Court of Appeal in relation to those orders are set out in s 127 of the District Court Act 1973 (NSW). Section 48(2)(f) of the Supreme Court Act 1970 (NSW) assigns any application for leave to appeal or appeal to the Court of Appeal. The applicant is not able to enliven the appellate jurisdiction of this Court in relation to orders of the District Court by filing a notice of motion in this Court in unrelated proceedings as to costs. If the applicant seeks to challenge any order made in the District Court in 2017 (or at any other time) she will need to commence separate proceedings either for leave to appeal or appeal and seek an extension of time. Nothing in this judgment reflects any view having been formed by the Court about the applicant's ability to take such a course. Her attempt to enliven the appellate jurisdiction of this Court by means of the notice of motion fails. The motion, to this extent, is incompetent.
Proposed order 3 sought in the applicant's notice of motion is also incompetent. The applicant asserts that dispositive orders were made on 2 February 2017 in the District Court. If (and only if) the applicant succeeds, in separate proceedings, in setting aside those orders (the likelihood of which we express no view upon) there may then be a proceeding in the District Court in respect of which she may seek, by commencing separate proceedings, to transfer the proceedings to the Supreme Court. No such proceeding now exists. Even if it did, the applicant is not able to enliven the jurisdiction of this Court in relation to the transfer of proceedings by filing a notice of motion in unrelated proceedings as to costs.
The motion must be dismissed. The applicant must pay the costs of the motion of the first, second and third respondents as agreed or assessed. Those orders will be entered forthwith.
Before leaving this case it is appropriate to note that in relation to the separate contempt proceedings involving the applicant an order has been made by this Court that judgments in relation to those proceedings be removed from caselaw and not be published until further order of the Court of Appeal.
Although no adequate material has yet been filed in relation to the present motion which persuades us that this judgment should not be published on caselaw (and indeed the applicant now asserts that she has fully recovered from her earlier illness) we do not at this stage propose to publish this judgment on caselaw but rather simply distribute it to the parties.
If, within 14 days, the applicant wishes to make an application for a pseudonym order or a non-publication order about this judgment we will consider that application on the papers. Any such application and supporting evidence should be filed with the Registry.
Any evidence filed must include a complete current report from the applicant's treating doctor. We wish to make it clear that a redacted part of a 2017 report from Dr Ellis (an extract of which was annexed to the applicant's affidavits on this application) would not be sufficient to persuade us to make any order for non-publication. What would be required is a complete current report from the applicant's treating doctor in support of any application for non-publication she chooses to make. In the absence of receipt of such an application the judgment will be published on caselaw after a period of 14 days.
The orders of the Court are:
1. The applicant's notice of motion dated 12 December 2017 is dismissed;
2. The applicant pay the costs of the first, second and third respondents as agreed or assessed.
[3]
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: 17 May 2018