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File Number(s): 2023/00347867

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: This judgment resolves a Notice of Motion filed by the plaintiffs on 15 June 2026. They seek an order pursuant to rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that Orders (1), (2), (4) and (5) in this matter made on 12 June 2026 be set aside.

2. With the consent of the parties, due to my absence from Sydney on circuit this matter was dealt with in circuit chambers on the papers. Mr Onakoya, in addition to the submissions filed with the Notice of Motion, was granted leave to file submissions in reply, which he exercised. For the reasons that follow, I will dismiss the plaintiffs’ motion.

Background

3. The factual background to the substantive dispute is adequately canvassed in my previous judgment: Onakoya v The Sydney Children*’s Hospitals Network (No 4)* [2026] NSWSC 743 (“Onakoya (No 4)”). I will not rehearse it here.

4. Onakoya (No 4) concerned 2 notices of motion filed by the defendant and an informal application made by the plaintiffs. The defendant sought to have numerous categories of the plaintiffs’ Notices to Produce for Inspection, and the whole of a Notice to Admit Facts and Authenticity of Documents set aside. The plaintiffs sought summary dismissal of the substantive aspects of the Defence required to be proved by the defendant. The defendant was successful and I made orders to that effect on 12 June 2026, with reasons given on 25 June 2026.

5. On 15 June 2026 (before the publication of my reasons), the plaintiffs filed this Notice of Motion seeking that my orders (other than order 3 setting aside the Notice to Admit), be set aside, and the redetermination of their summary judgment application under UCPR 36.15 (“r 36.15”).

Rule 36.15 and Applicable Principles

6. Rule 36.15 provides:

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.

Given the absence of consent in this matter, sub-rule (2) is not relevant to this application.

7. The exercise of the r 36.15 power is contingent upon the impugned order or judgment being made or given irregularly, illegally or against good faith if sufficient cause is shown. Brereton J, as his Honour then was, said this of the application of the power in the decision of In the matter of Greenhills Securities Pty Limited [2015] NSWSC 2021 (at [6]):

“… [g]enerally speaking [r 36.15], though it encompasses the concept of a judgment entered against good faith, is concerned more with the process and procedural justice pursuant to which an order is made, rather than the substantive merits of the order.”

8. His Honour picked up the line of reasoning expounded by the Court of Appeal in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (2009) 78 NSWLR 190; [2009] NSWCA 387 (at [16]-[17]) where the Court constituted by Allsop P, Campbell JA and Handley AJA said:

“[16] The focus of Pt 36.15(1) is on the judgment or order that is attacked, and question is whether it was ‘given, … entered or … made’ irregularly etc. The focus is on irregularity in those steps, not on the merits of any decision, or the irregularity of other steps in the proceedings...

[17] The rule applies with particular force to default or consent judgments and orders, and those given or made ex parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits at which all parties were represented and fully heard.”

9. These authorities make clear that r 36.15 is not concerned with the merits of a decision. Rather, its operation is to allow for an efficient remedy in circumstances were an irregularity means the orders or judgments giving effect to the decision plainly cannot stand. In Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111, The Court of Appeal (Meagher and Brereton JJA) said of r 36.16, a companion rule providing additional powers to r 36.15, that (at [4]):

“… [t]he power conferred by UCPR r 36.16 is to be exercised ‘sparingly and with caution’ and ‘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’. The purpose of the power is ‘to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal’. ‘Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part, he has not been heard’. It is true that it may also be exercised where ‘the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and ... this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing’. However, the reference to misapprehension in this context is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect.” (Citations omitted).

Their Honours’ remarks, which were recently confirmed by Ball and Free JJA in Mohareb v Nine Entertainment Co Holdings Limited (No 2) [2026] NSWCA 117, have applicability to r 36.15. The language of each of these rules equally point against permitting challenges to substantive matters in an impugned judgment. Other mechanisms, such as appeal by right or with leave, exist where such grievances can be ventilated.

Consideration

10. In support of the Notice of Motion, the plaintiffs rely upon the affidavit of the first plaintiff affirmed 15 June 2026. The rub of the complaint is a denial of procedural fairness arising from the failure of the defendant to provide documents which the plaintiffs assert are central to its defence. I interpret that the plaintiffs suggest that the denial of procedural fairness would constitute an irregularity thus providing a foundation for the relief sought.

11. The plaintiffs submit, in sum, that as they were unable to consider those documents, and consequently I was unable to consider them, there was a denial of procedural fairness in disposing of the application for the strike out of the Defence. I reject that submission.

12. First, it is for the plaintiffs to set before the Court the evidence upon which they rely in support of the summary dismissal application they brought forward for determination. The plaintiffs cannot make the application with the relevant evidence they referred to and then complain that the absence of other evidence constitutes a denial of procedural fairness. The defendant is under no obligation to prove the plaintiff’s case. The plaintiffs bore the heavy onus required for summary dismissal, which cannot be displaced.

13. Secondly, the plaintiffs complain that procedural fairness was denied as they were denied an opportunity to challenge the factual basis of the Defence on the basis of documents which they say underpin the defences. That is not the function of an application under UCPR r 13.1 or r 14.28. As my judgment in Onakoya (No 4) demonstrates, whatever competing inferences might be available to be drawn from the contemporaneous records, the determination of the issues for trial will depend upon all of the evidence led at the trial including, importantly, the oral testimony of witnesses.

14. Thirdly, the plaintiffs’ submissions and evidence say nothing about any irregularity related to the orders setting aside those parts of the Notices to Produce. There can be no infringement of the hearing rule by reference to documents in respect of which an objection to production has been upheld.

15. Fourthly, to the extent that the plaintiffs, through paragraph 18 of the first plaintiff’s affidavit, suggest that the pronouncement of orders with reasons reserved constitutes an irregularity that position can be dismissed out of hand. My reasons have now been published: see Onakoya (No 4).

16. Finally, without intending any disrespect, Mr Onakoya, who represented his wife by leave as well as appearing in person, has developed a very firm and definite belief in the correctness of each proposition for which he contends which he advances with the certainty of an ipse dixit. He gives the impression that these propositions are so self-evident that opposition, disputation or contradiction can only be ascribed to ulterior or illegitimate motive. He fails to appreciate that matters such as justification, qualified privilege and statutory immunity give rise to factual inquiry that can but rarely if ever be established with the required certainty for summary dismissal by argument alone. The detailed argument reiterated in his submissions in support of this application, in truth, amount to no more than (albeit respectfully put) his insistence that he was right in the first place. He seems not to appreciate that where there are two sides to a story, the differences may only be resolved after a hearing in which each party has a reasonable opportunity to present the evidence relied on to establish its or their side of the story.

Conclusion

17. The application under UCPR r 36.15 will be refused. As Basten JA observed in James v Australia and New Zealand Banking Group Ltd [2020] NSWCA 101 (at [32]):

“The inability of a court to reopen orders which have been entered, otherwise than pursuant to statutory authority (including rules made under statutory authority), reflects the importance of the value of finality as an element of the rule of law. ‘[T]he principal qualification to the general principle of finality is provided by the appellate system.’ An attempt to have a trial court reopen its orders after the time for appeal has expired, without recourse to that procedure, is to undermine the statutory constraints imposed on appeals. A power to reopen would not likely be construed to allow such a course.” (Citations omitted).

Even in respect of interlocutory orders, finality has a role to play especially having regard to the efficiency provisions of ss 56 to 60 of the Civil Procedure Act 2005 (NSW).

18. Consequently, my orders are as follows:

19. The Notice of Motion filed on 15 June 2026 is dismissed.

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