Leeming JA, Mitchelmore JA, Harrison CJ, Cavanagh J
Source
Original judgment source is linked above.
Judgment (3 paragraphs)
[1]
[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: By judgment delivered on 3 July 2024 and entered on that date, this Court dismissed the appeal brought by Ms Judith Odlum from the dismissal of her claim against her former solicitor and barrister: Odlum v Friend [2024] NSWCA 159. Ms Odlum appeared unrepresented in that appeal. She also lacks the benefit of legal representation in the current application, which is a notice of motion filed on 5 September 2024, although on 17 July 2024, 14 days after this Court's decision was delivered, she wrote to the solicitors acting for each of the first and second respondents as follows:
This [is] to inform you that I have lodged a NOM form under UCPR r 36.16 and 36.15 and within 14 days of the former Judgement date. I can send a sealed copy once provided with it.
Judith Odlum
Pausing there, lodgement of court process such as a notice of motion is different from filing it. Speaking generally, a document is taken to have been filed when it is lodged for filing, but r 4.10(3) contains an important exception, which is when the acceptance of the document is subsequently refused by the court or by an officer of the court. Rule 4.10(5) authorises an officer of the court to refuse to accept a document for filing, in the case of a document for which a filing fee is payable, if the fee has not been paid or arrangements satisfactory to the officer of the court have not been made for its payment.
Odlum v Friend [2024] NSWCA 252 | Case summary | Zoe
Ms Odlum's motion contains a stamp representing the Court seal and the notation:
This document was eFiled on 05 September 2024. Final acceptance has been given.
R H Kenna (L.S.)
Principal Registrar & Chief Executive Officer.
The point of mentioning these procedural details is that this Court has only limited power to revisit its final orders after they have been entered. Rule 36.15 authorises this Court to do so by consent, or if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. Rule 36.16 also permits this Court to vary or set aside a judgment if the notice of motion is filed before entry (r 36.16(1)), or after entry if (relevantly) the judgment is a default judgment or one given in the absence of a party (r 36.16(2)), or in the circumstances stated in the following subrules:
(3) In addition to its powers under subrules (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 of fact or law 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 the setting aside or variation of a judgment or order is filed 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).
Ms Odlum gave notice of her intention to file a notice of motion within the 14 days stated in r 36.16(3A) and (3B), but her motion was not filed until some months later. As is clear from r 36.16(3C), the circumstances in which the 14 day time limit may be outflanked are limited. Kable v State of New South Wales (No 2) [2012] NSWCA 361 was an example which bears some similarity to the present case, where notification had been given of the application, but no notice had been filed.
Some of the materials supplied by Ms Odlum suggest that part of the reasons for the delay was her applications for waiver of fees (including paragraphs 43-51 of her submissions). For present purposes it is unnecessary to address this in any more detail. We shall proceed, favourably to Ms Odlum, on the basis that this Court has jurisdiction to deal with her motion. Even so, it is quite plain that it must be dismissed.
Ms Odlum's notice of motion has 37 paragraphs. Much is by way of submission. The general tenor of part is that she is dissatisfied with many things, including this Court's judgment, and wishes a rehearing. We mean no disrespect to Ms Odlum, but much is difficult to understand. For example, the concluding five paragraphs of the notice of motion are as follows:
27.6.12. SF: "I suggested that her proposed offer would be a waste of time and money because the defendant wants to sell the Property as to the same amount of the agreed valuation of $1,250,000.00. [ 211 p305. [Para 209 p205] is misleading as "she had not had a loan agreed to by her family" had been after costs were increased, reserve increased, and prior to April - June when alternative arrangements had been considered.
20.6.12 "SF did not accept a situation, as I had predicted, where it could sell for less than the reserve, less ASK funding repayment." "I would like you to put an offer' [Vol1 (G) (K) p238] [Vol 1 713 p232].
"SF in email had advised that a correction in November 2012 to the wording of the September 2012 Judgement would benefit me. Instead, these accusations, had implied that I had delayed the agent selling and therefore necessitated Trustees, and so increased the costs I was ordered to pay." As did DB's $200,000 redraw from RH for which SF had said that I would be protected. [Vol 1 520 pp 197-198].
Garth had never said that HE did not agree to selling to me if the ANZ finance was offered. DB would not agree, wanting marketing at higher than the reserve. [Vol 1484 p192].
The control issues I had tried to escape had continued throughout the court proceedings and thereafter.
The motion is supported by 27 pages by way of submission, and also an affidavit which bears the date of 8 July 2024 on the coversheet but which was witnessed on 4 September 2024 and is 218 pages with six pages of annexures, a separate contents document (bearing the same coversheet) of 26 pages, and a further short affidavit with a four page annexure.
The submission includes an explanation for the length of the affidavit in paragraphs 26-27:
For an unrepresented person on the Autism Spectrum, I had had to document the direction hearing to try to make sense of it, (as I think I have now done)
Writing more than 200 pages in NOM affidavit was my NEED to make sense of everything, as it seemed to me others were not accepting/could not understand, so much of which seems to me to be repetitious. [Writing is how a traumatized person can "speak to their self" (as a psychologist informed me).
Ms Odlum maintained that her case is important, and in "the public interest, and especially following the findings of the Royal Commission into Banking" (submissions, paragraph 50). She makes allegations of fraud, and of unfairness, and that she lacked time to present her submissions. Many of her submissions are of a character which this Court would not permit a legal practitioner to make. The large majority of the hundreds of paragraphs are submissions about the events of more than a decade ago which have been the subject of the litigation giving rise to the appeal. Again, by way of example, the 4 September 2024 affidavit concludes with paragraph 416:
A note For your recall is that I fully owned my home prior to meeting Darryl Bowling, (including a claim following deceased builder), which SF chose/ decided not to represent to the Court, just as he had not told the Valuers doing the historical value. Without that home there would have been no ability for further borrowings or loans from my Mother; loans through which I had been able to purchase the MacMasters Beach Home. (In Hearing, SF had denied recall of that information). It is unclear to me why the Court had not comprehended that reality when not making an Order for my purchase from DB. None-the-less the OPPORTUNITY had EXISTED.
The principles governing the power to re-open a judgment pursuant to r 36.15 were recently summarised in Mohareb v State of New South Wales (No 2) [2024] NSWCA 69 at [20]. No proper basis has been put forward to establish that this Court's judgment was made irregularly or illegally or against good faith. No basis has been made out to engage the power to re-open this Court's judgment at general law. It is also well established that the power conferred by r 36.16 (a) is to be exercised "sparingly and with caution", having regard to the importance of finality of litigation, and (b) "does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them": Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[13]. The purpose of the power was stated by this Court as follows at [12]:
The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court's resources.
Assuming favourably to Ms Odlum that her motion falls within the scope of r 36.16, no proper basis has been put forward to set aside or vary this Court's judgment.
Yesterday afternoon, after Ms Odlum was informed that judgment on her motion would be delivered today, she supplied a further letter of six pages. Nothing in that letter, which is as difficult to summarise as her previous submissions and affidavit but which each of us has read, alters the disposition of her motion.
This paragraph is written for the benefit of Ms Odlum. The nature of litigation is that there are winners and losers. In many cases, the loser has a right to appeal. However, all litigation must come to an end. Save in very exceptional cases, it comes to an end after a trial and after an appeal. Ms Odlum has had a trial in the Supreme Court over some five days, and she has had an appeal. Nothing has been put forward to provide any basis for this Court exercising its exceptional jurisdiction to revisit the outcome of the appeal.
The notice of motion filed on 5 September 2024 must be dismissed. Ms Odlum must pay the respondents' costs of that motion.
[3]
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Decision last updated: 25 October 2024