Marie Odtojan v Credit Corp Services Pty Limited

The applicant's evidence

1. The affidavit of the applicant sworn on 29 May 2019, set out a narrative concerning the hearing and orders made on 15 May 2019. Much of the affidavit contained material which was argumentative, some of which was inflammatory, and much of it referred to material which was irrelevant to the determination to be made by me, for example, paragraphs [69] to [75] under the heading "Relevant background - fraud committed in the original proceeding". Other material which fell into that category concerned complaints made by the applicant to the Office of the Legal Services Commissioner about legal representatives of the respondent concerning their conduct, either at the original hearing and/or during the costs assessment process.
2. Other material contained in the applicant's affidavit amounted to submissions attacking the judgment of her Honour. They included submissions as to her Honour providing inadequate reasons, and refusing to either vary the orders made by her, or provide any additional reasons; "apparent/apprehended judicial bias"; the failure of her Honour to take into account what were alleged to be serious allegations raised "of illegal conduct by the defendant, its legal representatives using the court system as a platform to obtain judgment and costs judgment by fraud and collusion with the applicant's own legal representatives"; and an allegation that the respondent, through its solicitors, had committed a fraud in the Local Court proceedings by relying "on a non‑existing credit card contract and representing to the court, to me and in its claim, that a credit card contract exists to pursue the claim of $40,000.00 with interest and insurance".
3. Finally, the applicant submitted that the orders made by her Honour on 15 May 2019 were made irregularly and in bad faith, and there were no "special circumstances" pursuant to rule 50.8(1) UCPR identified by her Honour. The applicant contended that she had been refused and denied a "fundamental right to be provided with the judicial reasons by her Honour" and therefore there had been a denial of natural justice and procedural fairness.

The applicant's submissions

1. The applicant relied on a written outline of submissions, setting out the background of the security for costs application by the defendant filed on 12 April 2019, and outlining the submissions made by the parties at the hearing of that application before Judge Strathdee on 15 May 2019. The applicant submitted that the orders made by her Honour should be set aside on the following bases: 1. "Her Honour granted such orders in the absence of any 'special circumstances' in accordance to rule 50.8(1) of the UCPR. 2. The only basis her Honour relies to grant security for costs found in her statement: 'I am not satisfied that the respondent to the motion has been frank and open about her assets and liabilities and therefore I make the following orders'. 3. The basis her Honour relied to grant security for costs above mentioned is inadequate and insufficient and cannot be capable of constituting 'special circumstances', which is not basedon one factor alone but on a combination of factors. 4. The exercise of the power to make an order for security for costs is discretionary and not automatic: Idoport Pty Ltd v National Australia Bank Ltd. However, the mere establishment of a ground under the rule is insufficient of itself to justify an order. Similarly, the grounds set out in the rule are not exhaustive of the court's power to order security for costs: Philips Electronics Australia Pty Ltd v Matthews (2002) 54 NSWLR 598; [2002] NSWCA 157 at [52]. 5. The Defendant had the onus to satisfy the requirements pursuant to the rule 50.8(1) of the UCPR where its grounds in making an application for security for costs failed to provide any 'special circumstances', however, her Honour granted an order for security for costs. 6. Her Honour made such orders irregularly and in bad faith. There were no 'special circumstances' pursuant to the rule 50.8(1) of the UCPR and the Defendant had no basis to make an application for security for costs under the said rule. 7. Her Honour did not apply legislation and case authorities. The facts of the case and the serious allegations made in the matter and the public interest consideration was given no weight by her Honour. 8. Adverse orders were made against the Appellant where there was no basis in granting security for costs. Her Honour ordered costs against the Appellant for the Defendant's Notice of motion filed on 12 April 2019 in which they had failed to satisfy any grounds for 'special circumstances'. 9. Her Honour erred in granting security for costs on the premise that the Defendant had an automatic right and an entitlement to such security for costs upon making an application pursuant to rule 50.8(1) of the UCPR. 10. The Appellant was placed in the position that there was an obligation/condition to pay security for costs to the Defendant. Her Honour had threatened to strike out the main appeal proceedings unless the Appellant pays security for costs. Her Honour: "I won't strike out the appeal today on the condition that there is, as payment for security for costs." 1. Although her Honour had given her undertaking from the outset of the proceedings that she would determine the matters without bias, noting that she had close associations with Costs assessors Mr Peter Rosier and Mr John Sharpe, her Honour had apparent/apprehended judicial bias and did not apply the 'fair minded lay observer' test. 2. The orders were made are irregularly and not in accordance to applicable legislation, case authorities and to her Honour's own prior judgment/orders in relation to security for costs applications. In the case of Cohen v David where judge Strathdee provided judicial reasons and referred to a combination of features to constitute 'special circumstances' referring to both rule 50.8 and rule 42.21 of the UCPR.(sic)"
2. Having set out those grounds, the written outline then set out the orders sought in the applicant's Notice of Motion.
3. In oral submissions, the applicant submitted that the basis for Judge Strathdee granting security for costs, namely, that she was not satisfied that the applicant had been frank and open about her assets and liabilities, was not made out. On the evidence of the transcript, the applicant submitted that she had been frank about her assets and had disclosed that she had a bank account with a balance of "$10,000.00, maybe". It was submitted that her Honour had relied on that evidence to determine that the applicant was not impecunious.
4. In respect of the relief sought before her Honour pursuant to rule 50.8(1), it was submitted that "special circumstances" were not made out because that expression, to be satisfied, required more than one circumstance that could be regarded as special. As her Honour had not been satisfied that the applicant had been "frank and open about her assets and liabilities", that was only one circumstance and therefore the rule could not be satisfied. In support of that submission, the applicant relied on the Court of Appeal's decision in Marks-Isaacs v Fowler & Ors [2005] NSWCA 37 at [43].
5. It was submitted that there was no basis for her Honour finding special circumstances here, because she was aware of the applicant's financial position and there was evidence before her that she had no interest in real estate. The applicant submitted that a comment made to her representative, (a "Mackenzie" friend given leave to appear during the hearing), that "it took two and a bit hours for her to say anything about the money she has in the bank. There is no evidence of it", was without foundation.
6. The applicant also relied on a previous decision of Judge Strathdee in Cohen v David [2018] NSWDC 214, in which her Honour had made a finding of special circumstances upon which she based an order for security for costs.
7. The applicant also referred to the Court of Appeal decision in Xenos v FAL [2017] NSWCA 240, in which Gleeson JA had said in respect of an application for security costs under rule 51.50 UCPR: "While mere impecuniosity will not ordinarily justify an order for security for costs, here there are additional matters which, in combination, are capable of constituting special circumstances including Mr Xenos' very weak prospects of success in the appeal; the raising of new points on appeal which were not taken at trial, the wide ranging scope of the issues sought to be agitated on appeal; the absence of evidence that the appeal would be stultified if security were orders, and the substantial risk that if successful, the respondents would not recover their costs of the appeal from Mr Xenos."
8. The applicant also referred the court to Dal Pont, "Law of Costs" (Ed unknown) at p 1027, where the learned author stated: "The role and meaning of 'special circumstances' in this context has not proven clear. As noted earlier, there are more compelling grounds to order security on appeal than at first instance. Yet the 'special circumstances' requirement, far from widening the scope for a security order on appeal, seems to do the opposite - setting an additional hurdle to a security order. Judicial remarks that the 'special circumstances' requirement pays heed to the different considerations applicable to an appeal compared with proceedings at first instance appear odd if indeed the requirement is an additional hurdle to overcome. Courts have eschewed any exhaustive definition of 'special circumstances' fearing that to do so may limit their discretion. Yet a factor that repeatedly surfaces in any determination of 'special circumstances' is the appellant's impecuniosity. Some judges have gone so far to say that the appellant's impecuniosity by itself can amount to a special circumstance justifying a security order. Other judges reject the notion that impecuniosity by itself may be a 'special circumstance', instead searching for one or more other factors to justify this finding. There is sound reason for this; otherwise the court may, by ordering security, stifle an action that ought in the interests of justice be determined on its merits. This may shut out persons deserving of access to justice, and explains why the most common other factors supporting a finding of 'special circumstance' is the appeal's lack of merit."
9. The applicant submitted that her Honour had no jurisdiction to make the orders made for security for costs in the absence of a basis for finding special circumstances and therefore she was entitled to the relief sought pursuant to rule 36.16(3A).

The respondent's submissions

1. Counsel for the respondent submitted that her Honour's determination pursuant to rule 50.8, involved the exercise of a broad and general discretion in accordance with Preston v Harbour Pacific Underwriting Management Pty Limited [2007] NSWCA 247 at [18]. In coming to her determination, and exercising that broad judicial discretion, pursuant to the principle in House v King [1936] 55 CLR 499, the court would have to find that her Honour's decision was plainly wrong.
2. Secondly, it was submitted that as the applicant had asked her Honour to revise her judgment and orders, and her Honour had elected not to do so. It was submitted that this added some weight to the submission that there was no error demonstrated in her Honour's judgment.
3. It was submitted that the applicant had not demonstrated any misapprehension of the facts or the law by her Honour. In respect of rule 36.16(1) of the UCPR, the respondent relied on Feldman v Polaris Media Pty Limited [2018] NSWSC 1201, where McCallum J had said, in respect of the power in rule 36.16(1): "5 The Court's discretion to exercise that power is guided by competing considerations. On the one hand, there is a public interest in the finality of litigation. However, it has been recognised, notwithstanding the force of that consideration, that the court can in an appropriate case reopen a judgment which has 'apparently miscarried': Autodesk Inc v Dyson (No. 2) (1993) 176 CLR 300 at [302.2] per Mason CJ. The proper approach to those competing interests was expressed by his Honour in the following terms (at [302.8]): 'The public interest in the finality of litigation will not preclude the exceptional step of reviewing or re-hearing an issue where a court has good reason to consider that in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law."
4. It was submitted that there was no factual error here or misapprehension of the law by her Honour. Her Honour had taken into account as a relevant factor the financial position of the applicant who had made no full and frank disclosure of her financial position, despite being requested on numerous occasions to do so.
5. In respect of the merits of the applicant's appeal, her Honour made no finding as to the appeal having strong prospects, but rather, stated that the appellant "may have a viable argument on appeal".
6. It was submitted that the findings made by her Honour were open to her on the evidence and that she provided some reasons for them. On the question of sufficiency of reasons, the court was referred to Soulemezis v Dudley (1987) 10 NSWLR 247. Here, although her Honour's reasons were brief, when the whole of the transcript was read, together, her reasons were sufficiently disclosed.
7. In respect of the submission made by the applicant that special circumstances had not been made out because her Honour relied on one reason only, that was a proposition for which there was no authority.

Submissions in reply

1. The applicant submitted in reply that on the basis of Marks-Isaacs, supra, a combination of factors were required to find "special circumstances". It was further submitted that most of the authorities referred to a combination of factors amounting to special circumstances before the court's discretion could be exercised.

Determination

1. Part 36 rule 36.16 provides as follows: "36.16 Further power to set aside or vary judgment or order. (1) The court may set aside or vary a judgment or order if Notice of Motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if (a) It is a default judgment (other than a default judgment given in open court), or (b) It has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) In the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under sub-rules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) Determines any claim for relief, or determines any question (whether a fact or both) arising on any claim for relief, or (b) Dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If Notice of Motion for setting aside or variation of a judgment or order is within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered. (3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B). (4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order."
2. The power to set aside or vary a judgment or order pursuant to rule 36.16 is enlivened by the applicant filing her Notice of Motion on 29 May 2019, within 14 days after the judgment or order the subject of her application. In Feldman v Polaris Media Pty Limited, supra, referred to above, McCallum J described the court's discretion to exercise the power contained in rule 36.16 as being guided by competing considerations, namely the public interest in finality of litigation and, notwithstanding the force of that consideration, the power of the court to review an issue where the court has proceeded on a misapprehension as to the facts or the law. Her Honour further referred to the High Court decision in De L v Director-General, New South Wales Department of Community Services [No. 2] (1997) 190 CLR 207, where the High Court cited two further grounds for reopening, it's judgments or orders, namely, where there is "some matter calling for review" and where "the interests of justice so require" at [6].
3. Consistent with McCallum J's judgment, the principle in House v King, supra, applies, and the court should not intervene unless it is clear that Judge Strathdee proceeded on a misapprehension as to the facts or the law.
4. The applicant submitted that her Honour made the orders in the absence of "special circumstances" in accordance with rule 50.8(1) of the UCPR. This was on the basis of her Honour's finding that she was not satisfied that the respondent had been frank and open about her assets and liabilities. A fair reading of the transcript of the hearing of the motion on 15 May 2019, makes it clear that her Honour was aware of a number of examples where the court had found special circumstances to exist, for the purpose of rule 50.8, including where an appellant is not frank with the court as to the extent of their assets and liabilities. Her Honour was also aware that there had been no appeal from the decision of the Local Court and the judgment entered against the appellant, and that the appellant had raised serious allegations against the respondent/applicant on the Notice of Motion and its legal advisers (including an allegation that certain persons had aided and abetted and organised a criminal syndicate consisting of the applicant's prior legal representatives). It became clear during the hearing that those allegations, which were serious, had not been particularised and the appellant had filed no evidence supporting them.
5. It was on that background that her Honour raised with the appellant her financial state of affairs, whether she was impecunious or not, and whether she had disclosed anything about her financial affairs. The respondent had established by evidence that the applicant did not own any real property, and when asked by her Honour whether she had any assets, the respondent informed the court that she had "money in the bank". The respondent conceded that she had not made any disclosure about her financial position. When asked whether she wanted to put on evidence about that, the following exchange occurred: "Respondent: Your Honour, I don't have any evidence to put to the court in relation to that. Her Honour: Do you have any money in your bank account? Respondent: Yes, I do have money in the bank account. Her Honour: How much? Respondent: I am still, I am still failing to understand which legislation you are referring to and in relation to - Her Honour: How much money do you have in your bank account? Respondent: I don't know, I would have to check. Her Honour: Roughly, $5, $500, $50,000? Respondent: Approximately that, maybe 10. Her Honour: Ten Dollars? Respondent: No $10,000 maybe. Her Honour: Do you own a motor vehicle? Respondent: I do. Her Honour: Yes well is there anything else you wish to put before me? Respondent: Yes, your Honour, what I've said is a public interest case. Her Honour: That is not relevant to this application."
6. It was on that basis that her Honour went on to find that the applicant was not impecunious.
7. It is clear from her Honour's reasons that she was not satisfied that the applicant had been frank and open about her assets and liabilities. It is also clear that, given the background factors outlined above, that amounted to special circumstances so as to warrant granting the relief sought by the respondent on its Motion for Security for Costs.
8. I am not satisfied that the orders made her Honour were made either irregularly or in bad faith. Nor were they made on the premise that the respondent had an automatic right and an entitlement to such security for costs pursuant to rule 50.8(1) of the UCPR. Rather, her Honour was alive to the fact that special circumstances were required to be made out before the making of such an order.
9. The applicant's submission that her Honour threatened to strike out the main appeal unless the appellant paid security for costs is also not made out. What her Honour said to the applicant's Mackenzie friend was as follows: "I have considered it in the sense that she made some fairly strenuous allegations about a number of legal practitioners and I accept that perhaps there is an argument, perhaps there is some merit in the appeal, and therefore I am not going to strike the proceedings out but I want you to tell me why I should not make an order for security of costs. I accept that she is not impecunious, but I don't accept that she has been full and frank with this court about her financial affairs."
10. The submission made by the applicant that this amounted to a threat is misconceived. Rather than being a threat, her Honour was making it clear that the appeal would not be struck out.
11. The applicant's contention that her Honour had "apparent/apprehended judicial bias" in coming to her determination is also misconceived. Before hearing the matter, her Honour properly disclosed that she had been a costs assessor for more than 10 years in the Supreme Court, that she was a member of the Review Panel, and also a member of the Rules Committee of the Costs Assessment section of the Supreme Court. Her Honour disclosed that she knew two of the assessors but did not know one of the members of the Review Panel. She went on to say: "Her Honour: Obviously I haven't done costs assessments for many years now, but I would just like you both to be aware of that and if you wish to consider your positions, I'm happy to adjourn for a few minutes for you to have a think about it?" Respondent: As long as your Honour is able to decide this decision today without any bias. Her Honour: I certainly give you my undertaking that I will do it without bias, but I just wanted to be very open with you so that you both understand I do have a background in costs assessment. Respondent: Thank you for that, yes."
12. It is clear that the applicant asserts that her appeal involves questions of public interest. However, there is a public interest in the finality of litigation, as set out from the passage extracted from McCallum J's judgment in Feldman v Polaris Media Pty Limited, supra, above. The nature of the proceedings, namely, an appeal from the Review Panel's assessment, which had upheld the costs assessor's certificate, demonstrate an inability in the appellant to accept the decisions made adverse to her. Her Honour accepted that there may be some merit in her appeal, for the purposes of her determination, but no determination was made as to the strength of the appellant's prospects of succeeding in the appeal, and if so, the extent of any reduction of the costs order to be imposed on her. In those circumstances, what she claimed to be matters of public interest were entirely irrelevant considerations.
13. The applicant also complains that the reasons given by her Honour were inadequate. Given the nature of the proceedings, it is clear that the determination of the issue before her Honour involved her exercising a broad discretion and that her Honour was alive to that issue, and that a finding of special circumstances was required. The principle in House v King, supra, applies here. As stated by the plurality in the High Court: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
14. In Marks-Isaacs v Fowler & Ors, supra, Handley JA found special circumstances based on the failure of the appellant to fully disclose his financial position and his failure to pledge his oath to the account that he had given, and inter alia, his slender prospects of success in the appeal, the modest amount that was realistically at stake and his willingness and ability to fund his own costs of the appeal. Further, his Honour found it material to that question that unless an order was made for security, the respondents would incur further costs in defending an appeal judged to have little prospects of success with little chance of recovering those costs from the appellant, in addition to substantial monies already spent in their successful defence at the trial (see [43]). Those matters are relevant here, together with the wide‑ranging scope of the issues sought to be agitated by the appellant on the appeal, and the substantial risk that the respondents would not recover their costs of the appeal from the appellant, as referred to by Gleeson JA in Xenos v FAL, supra, at [51] and [52].
15. The appellant, and the applicant on the motion, has failed to establish any error in fact finding or misapplication of the law by the primary judge here. Rather, she has asserted that there was no finding of special circumstances. For the reasons set out above, that assertion is not made out.
16. Nor do I find, notwithstanding that her Honour's reasons were brief, that her decision upon the facts was either unreasonable or plainly unjust, so that it may be inferred that in some way there was a failure properly to exercise her Honour's discretion. Whilst the absence of proper reasons constitutes an error of law, in this case, it is clear that her Honour was aware that to exercise her discretion, a finding of special circumstances was required, and that finding was made out by her finding that she was not satisfied that the applicant had been frank and open about her assets and liabilities. In the District Court motion list, brief reasons are often provided, and her Honour made the basis of her determination clear.
17. Those findings are sufficient to dispose of the application, to dismiss the Notice of Motion.
18. Whilst it is unnecessary for me to do so, less there be any doubt as to the proper construction of Pt 36 rule 36.16(3) and (3A), the evidence before her Honour clearly established special circumstances pursuant to Pt 50 rule 8, given the nature of the proceedings, and the fact that the applicant was not full and frank with the court about her financial affairs, despite having been given the opportunity to place that evidence before the court.
19. The relief claimed by the applicant in [2] of the Notice of Motion is not borne out by the evidence upon which the applicant relies, and has already been the subject of complaint to the Office of the Legal Services Commissioner. Further, it is not relief which is ancillary to the applicant's appeal against the cost assessment made against her. If the applicant wishes to pursue the matters raised therein, this court is not the appropriate forum.
20. I make the following orders: 1. The applicant's Notice of Motion is dismissed. 2. The applicant is to pay the respondent's costs of the Motion.

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: 20 June 2019