Sanjiv v Coleman Greig Lawyers Pty Ltd

Supreme Court of NSW|2024-12-10|Before: Meek J

Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (in liq) (2022) 275 CLR 508; [2022] HCA 3 Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Principal judgment Parties: Rekha Sanjiv (Plaintiff / Respondent) Coleman Greig Lawyers Pty Ltd (Defendant / Applicant) Representation: Counsel: K Young (Defendant / Applicant) Solicitors: Coleman Greig Lawyers (Defendant / Applicant) In-person (Plaintiff / Respondent) File Number(s): 2024/361481

EX TEMPORE JUDGMENT (Revised)

HIS HONOUR: The application before the Court is a notice of motion filed by the defendant, Coleman Grieg Lawyers (CGL), seeking orders, effectively, that the plaintiff's summons be struck out or dismissed principally on the basis that it is a form of abuse of process.

Initial history

The plaintiff is a former client of CGL. She engaged CGL to act for her in a family law property matter in or about June 2018, at which time the matter had already been on foot for about three years.
CGL acted for the plaintiff from about June 2018 to May 2019. There is contention between the parties regarding CGL's costs and costs disclosure in acting for the plaintiff.
CGL asserts that it provided legal services and issued cost disclosures, costs updates and tax invoices in respect of those services. The plaintiff provided a form of irrevocable authority in favour of CGL, which CGL says was a type of confirmation that its outstanding and further fees would be paid within 42 days of final orders being made in the family law proceedings.
For her part, the plaintiff disputes the efficacy of the costs disclosures and appears to assert that the authorities were given as a result of threats.
Final orders were made in the family law proceedings by consent on or about 30 April 2019. The consent orders provided for a property in Epping to be sold. It is clear that CGL acted for and provided advice to the plaintiff in respect of the making of those orders.
In May 2019, CGL ceased to act for the plaintiff due to, on its contention, the plaintiff's failure both to pay CGL's tax invoices and to provide instructions to CGL to implement the orders made in the family law proceedings.
In or around July 2019, CGL commenced proceedings against the plaintiff in the District Court for recovery of outstanding fees said to be in the sum of $258,489.71, plus pre‑judgment interest and costs.
CGL took the view that it was not required to have a costs assessment in order to sue for its fees, as it had a costs agreement.
It appears that CGL experienced some difficulties in serving the plaintiff with the originating process. On or about 20 September 2019, CGL obtained an order for substituted service of the statement of claim.
After serving the plaintiff with the originating process in accordance with the orders for substituted service, on 11 November 2019 CGL filed a notice of motion for default judgment for the sum of $266,858.89. The application was supported by an affidavit of Malcolm Gittoes‑Caesar, a solicitor with CGL, sworn 11 November 2019. Judgment was entered in the matter on that day, which judgment I will refer to as the "District Court Judgment". The evidence reveals that the District Court Judgment was entered by the Principal Registrar Grace Romeo.
Subsequently, on 5 December 2019, CGL filed a notice of motion seeking a garnishee order for the Commonwealth Bank of Australia to garnish the plaintiff's account with the bank for debts owed by the plaintiff in the amount of $266,859.42. That application was supported by an affidavit, also of Malcolm Gittoes‑Caesar, sworn 5 December 2019. A garnishee order was made that day.
Under the garnishee order, CGL was able to recover the sum of $5,872.84. At least initially, CGL was unable to recover any further amount from the plaintiff pursuant to the District Court Judgment.
Subsequently, in or around June 2022, the plaintiff retained CGL to assist her in selling the Epping property. The property was eventually sold.
It is not in dispute that CGL received a sum of approximately $252,604 [1] for payment in reduction of the District Court Judgment (based on its outstanding invoices) out of the sale proceeds of the Epping property.
Out of the original judgment debt, the sum of approximately $8,381 remained outstanding. At least as at April 2024, Karina Ralston, the solicitor with CGL who appears to have had most of the carriage of the matters for which CGL was retained by the plaintiff, gave evidence that CGL does not press the plaintiff for payment of that outstanding sum.
Between July and August 2022, CGL asserts that: it attempted to assist the plaintiff in relation to the Epping property and her family law proceedings, but she neglected to provide any instructions to do so; the plaintiff sought a copy of each tax invoice sent to her by CGL; and it produced to the plaintiff each itemised tax invoice which it had issued to her. Further, CGL says that, on 12 July 2023, it sent a copy of trust statements to the plaintiff.

NCAT proceedings

On 31 August 2023, the plaintiff commenced proceedings against Ms Ralston personally in the NSW Civil and Administrative Tribunal (NCAT), seeking copies of all trust account statements and all itemised invoices.
On 8 September 2023, CGL emailed a copy of each trust statement and itemised invoice to the plaintiff, notwithstanding that it asserts that it had already provided those documents earlier.
On 18 September 2023, following an appearance at NCAT, the plaintiff withdrew her application.

Related proceedings in this Court

On 20 September 2023, the plaintiff commenced proceedings (case number 2023/299506) in the Equity Division of this Court by summons, naming CGL as the first defendant and Ms Ralston as the second defendant (related proceedings). By her summons, she sought the following relief: 1. An order declaring cost agreement, if any, between plaintiff and defendants void and invalid and unenforceable and non-existent and to be set aside. 2. An order requiring defendants to repay under the equity principles/inherent jurisdiction amount of exorbitantly charged and unauthorised costs to plaintiff who bore the costs. 3. An order to make a gross sum costs assessment under s 98 of the Civil Procedure Act or reference to a referee under UCPR 20.14. 4. An order for contempt of court for wilful, knowing and deliberate breach and disobedience of court order 2.4.3 made by Court on 30 April 2019. 5. An order for all invoices with number of hours and rate per hour to be given to plaintiff. 6. An order for pre-judgment interest and costs such as payment for court fees.
The proceedings were listed for hearing before me, to commence on 26 September 2024.
On 22 August 2024, I made certain pre‑trial directions, which included an order for the parties to cooperate to prepare a list of agreed real issues in the proceedings.
The parties corresponded with each other between 5 and 10 September 2024 and agreed on a list of issues for determination, in accordance with the pre-trial directions.
The list of agreed issues was as follows: 1. Are the Defendants required to repay any monies to the Plaintiff? 2. Should the Court make an order for a gross sum costs assessments under section 98 of the Civil Procedure Act 2005 (NSW) (CP Act) and, if so, in what amount? 3. If the Court is not prepared to make a gross sum costs assessment under section 98 of the CP Act, should the Court appoint a referee pursuant to rule 20.14 of the Uniform Civil Procedure Rules 2005 (NSW) to make determination as to costs which the Plaintiff is liable to pay to the First Defendant? 4. Did the Defendants commit contempt of court for wilfully, knowingly and deliberately breaching and failing to comply with paragraph 2.4.3 of the orders made in Family Court of Australia No. SYC6488/2014 on 30 April 2019? 5. Is the Plaintiff entitled to an order for pre-judgment interest and costs of the proceedings?
It appears from the email correspondence and the list of agreed issues that the plaintiff had indicated that she would not press order 1 and order 5 of the relief sought in the summons.
At around 7:00 pm on 25 September 2024 (i.e. the evening before the hearing was due to commence), Caroline Kay Hutchinson, a solicitor with CGL, received an email from the plaintiff which attached a proposed amended summons.
The proposed amended summons sought the following relief (including strikethrough and underlining): [2] 1. An order declaring referee to determine under s 199(2(a) of Legal Profession Uniform Law cost agreement, if any, between plaintiff and defendants void and invalid and unenforceable and non-existent and to be set aside if matter referred to referee and gross sum costs order not made. 2. An order requiring defendants to repay under equity principles/inherent jurisdiction amount of exorbitantly charged and unauthorised costs to plaintiff who bore the costs. 3. An order to make a gross sum costs assessment under s 98 of the Civil Procedure Act or reference to a referee under UCPR 20.14 4. An order for contempt of court for wilful, knowing and deliberate breach and disobedience of court order 2.4.3 made by Court on 30 April 2019. 5. An order for all invoices with number of hours and rate per hour to be given to plaintiff. An order to set aside under inherent jurisdiction or under UCPR r 36.16(2)(a)&(b)& (3B) District Court judgment obtained by defendants on 17 September 2024 at 11.19am. 6. An order for pre-judgment interest and costs such as payment for court fees. 7. An order for leave to amend summons in this Supreme Court 8. An order for Leave to appeal judgment of District Court or judicial review under Part 59 UCPR of judgment of District Court issued on 17 September 2024 at 11.19 AM and extension of time (if required) be granted.
On 26 September 2024, the hearing commenced before me. The proposed amended summons was marked as MFI-1, however I ultimately refused the plaintiff leave to file it. The hearing was not concluded on that day and is in fact part-heard. It is due to recommence before me on 7 and 8 April 2025.
At the conclusion of the hearing, I made orders which included the following: THE COURT: 1. Notes the plaintiff has abandoned the following relief sought in the Summons filed 20 September 2023: a. Order 1; and b. Order 5. 2. Orders that leave to file an amended summons in the form of MFI-1 be refused. 3. Notes that the hearing is not completed and the matter remains part-heard. 4. Orders that Ms Ralston be released from cross-examination, without prejudice as to the plaintiff being able to seek leave to further cross-examine Ms Ralston when the hearing recommences.
A notation was also made for the parties to indicate their availability for further hearing dates up to and including May 2025. However, on 27 September 2024 (the following day), the plaintiff sent an email to my Associate, copying in CGL, indicating that she was "making preparation" to relocate overseas permanently from January 2025.

Current proceedings

On 30 September 2024, the plaintiff filed the summons commencing these proceedings (case number 2024/361481) (new summons). The new summons claimed relief as follows: 1. Extension of time be GRANTED. 2. Leave to appeal, if required, be GRANTED. 3. Judicial review under Part 59 of Uniform Civil Procedure Rules (UCPR) of judgment of District Court made on 11 November 2019 issued on 17 September 2024 at 11.19 AM., in the alternative, be GRANTED. 4. Appeal ALLOWED. 5. Judgment made by District Court of New South Wales on 11 November 2019 and issued on 17 September 2024 be quashed and set aside under UCPR r 35.15 [3] or UCPR r 36.16 (2)(a) & (b). 6. A declaration that the defendant law practice contravened its disclosure obligations under section 174(1) & (3) of LPUL. 7. A declaration that defendant law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed and the plaintiff is not required to pay the legal costs until they have been assessed. 8. An order under this court's inherent jurisdiction for defendant to repay plaintiff $266,859.42, paid by plaintiff to defendant pursuant to this District Court judgment that has no legal effect in view of section 178(1)(b) & (c) of Legal Profession Uniform Law (LPUL). 9. An order for pre-judgment interest and costs for payment for court fees etc. or each party to bear own costs. 10. An order that this summons be case managed and heard and determined together with 2023/299506 summons pending before Meek J.
The new summons only named CGL as a defendant and was supported by an affidavit of the plaintiff affirmed on 30 September 2024. The plaintiff emailed the summons and the affidavit to Ms Hutchinson.
The fact that the new summons had been filed was not drawn to my attention for some period of time.
On 24 October 2024, the plaintiff sent an email to my Associate noting that there was "a new summons related to 2023/299506" (i.e. the related proceedings). She observed that the Acting Registrar in Equity had suggested that she request I case manage the matter until the resumed hearing of the related proceedings.
On 25 October 2024, I vacated the return date for the new summons, which was listed on 28 October 2024 before the Registrar, and listed the matter for directions before me on 29 October 2024.
On 29 October 2024, the plaintiff appeared in person and Mrs Young appeared on behalf of CGL. I made the following orders: THE COURT: 1. Notes that Mrs Young contends that the relief sought by the plaintiff in the Summons filed on 30 September 2024 in substance is relief that had either been abandoned by the plaintiff or the subject of the request for leave to file an Amended Summons which was refused on 26 September 2024. 2. Notes that the Defendant foreshadows an application to dismiss the Summons as a form of abuse of process or on other grounds connected to the orders made by Meek J on 26 September 2024, being Orders 1 and 2. 3. Notes that whilst the Plaintiff appears to have acknowledged that the relief has the tendency nonetheless, she wishes to have the relief progressed and dealt with at the time of the adjourned hearing on 7 April 2025. 4. Notes that in light of the above the Court will address the application for dismissal of the summons first and subject to that determination consider (if there is no dismissal) the making of orders for the substantive relief sought in the summons noting that the Plaintiff has filed an affidavit in support of the summons. 5. Directs the Defendant to file and serve any such Notice of Motion (to be returnable on 10 December 2024) and affidavit in support on or before 4pm on Tuesday, 12 November 2024. 6. Directs the Plaintiff to file and serve any evidence in response by 4pm on Tuesday, 26 November 2024. 7. Directs the Defendant to file and serve any evidence in reply by 4pm on Tuesday, 3 December 2024. 8. Stands the matter over to before Meek J for hearing of such motion at 10am on Tuesday, 10 December 2024.
Consequent upon those orders being made, CGL filed a notice of motion on 12 November 2024 seeking an order pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the entirety of the new summons be struck out "on the grounds the pleading has a tendency to cause prejudice, embarrassment or delay in the proceedings against the Defendant or is otherwise an abuse of process". A particular costs order was also sought pursuant to r 42.20 of the UCPR. The notice of motion sought as a third order "[s]uch further or other order as the Court deems appropriate".
The notice of motion was supported by an affidavit of Ms Hutchinson sworn 12 November 2024 and an exhibit CKH‑1. Subsequently, the plaintiff filed an affidavit affirmed on 25 November 2024.
The plaintiff and CGL provided written submissions respectively on 8 and 10 December 2024.

Hearing

I heard CGL's application this morning. The plaintiff appeared in person (as she previously has done), and Mrs Young appeared on behalf of CGL.
As I had done on the hearing before me on 26 September 2024, I outlined some details regarding the procedure of the Court to the plaintiff. I indicated to her that, whilst I could inform her of the procedure of the hearing and how it would ordinarily progress, it was a matter for her to decide how to run the case and to what extent she availed herself of the procedure.
The relief in the notice of motion was framed by particular reference to r 14.28 of the UCPR, which relates to pleadings. A summons is not a pleading. Mrs Young, no doubt cognisant of that fact, foreshadowed an alternative basis for the orders in her written submissions provided this morning. In particular, Mrs Young, at the outset of the hearing of the application, sought that the Court dismiss the proceedings, or at least a large degree of the relief sought in the new summons, not merely in reliance on the ground stated in the notice of motion but also pursuant to r 13.4 of the UCPR and this Court's inherent jurisdiction. This was principally on the basis that the proceedings were a form of abuse of process.
I sought to understand from the plaintiff whether she opposed CGL's application to amend the notice of motion in that regard. Notwithstanding a number of attempts to elicit from the plaintiff her response, she did not really engage with the issue of whether an amendment ought to be allowed.
Ultimately, having established from Mrs Young that the relief sought under the alternate ground of r 13.4 of the UCPR would rely upon the same substantive evidence and submissions, I formed the view that I should allow the notice of motion to be amended in order to address the real issue that had been disclosed on the material.
I made an order for CGL to file and serve an amended notice of motion to formalise the position. The hearing proceeded on the basis that the relief being sought by CGL was also based upon this Court's power under r 13.4 of the UCPR and its inherent power.
On the hearing of the application, CGL relied upon the affidavit of Ms Hutchinson sworn 12 November 2024 and exhibit CKH‑1. In addition, Mrs Young tendered a number of documents, including: 1. the order for default judgment made in the District Court on 11 November 2019 (i.e., the District Court Judgment); 2. a registry extract from the District Court which disclosed that the District Court Judgment had been entered by Principal Registrar Grace Romeo; and 3. the 2019 Annual Review for the District Court, which disclosed that, during that year, the Judicial Registrar of the Court was James Howard (exercising functions pursuant to s 18FB of the District Court Act 1973 (NSW) (DCA)) and Grace Romeo was the Principal Registrar of the Court (exercising functions pursuant to s 18H of the DCA).
The plaintiff relied upon her affidavits affirmed on 30 September 2024 and 25 November 2024.
In the latter affidavit, the plaintiff indicated that she also relied upon the court book prepared for the hearing in the related proceedings. There was some initial issue regarding the tender of that material. The plaintiff had previously provided to my chambers by email an electronic link to a form of court book. Eventually, to resolve any question about what was contained in the "court book", I handed down to the parties the form of court book that had become exhibit JP‑1 in the related proceedings. The plaintiff tendered that and it was marked as exhibit R‑1 in these proceedings.
Each of the parties made a number of objections to the affidavits and material that had been read and tendered and I ruled on those objections. A degree of the material was admitted but some of it was admitted subject to relevance, including, relevantly, the material in the court book from the related proceedings (which extends to 807 pages). Certain other material read was admitted on a limited basis pursuant to s 136 of the Evidence Act 1995 (NSW).
Although no specific orders were made for submissions on the application, each of the parties provided written submissions. The written submissions of the plaintiff and CGL were marked MFI-1 and MFI-2 respectively.
As I have already observed, certain parts of the evidence were admitted on a limited basis. A large degree of the plaintiff's "evidence" was in the nature of submission. Where that is the case, I have had regard to the plaintiff's "evidence" as a form of submission that she relies upon.

Submissions

In the plaintiff's written outline of submissions, she made reference to a number of provisions, including r 36.16 of the UCPR and ss 174, 175, 178 and 169(a) of the Legal Profession Uniform Law 2014 (NSW) (LPUL). She also made reference to a number of previous decisions, including Benjamin & Khoury Pty Ltd v Rahme (No 4) [2023] NSWSC 1162 and Gabrielle v Abood (No 4) [2023] NSWCA 100. The written submissions included the following statements: Judgment entered on 11 November 2019 is sought to be set aside as it is a default judgment. Judgment entered on 11 Nov. 2019 is sought to be set aside as it was made in my absence. Extension of time is not required but if required: Reasons for delay I am a housewife dependent on Centrelink for money who did not know what to do. My appeal is fairly arguable and has reasonable prospects of success.
The plaintiff's written submissions continued, asserting various alleged failures of CGL in their costs disclosure obligations under the LPUL. Further, she asserted that CGL "abused" her trust and confidence, taking "unconscionable advantage" of her "vulnerability" to earn fees. Accordingly, the written submissions included a request for an order that $258,489.71 (being the amount originally claimed by CGL in the District Court) be repaid. Alternatively, the written submissions requested that 30% of $258,489.71, being $77,546.91, be repaid to the plaintiff, on the basis that CGL's costs were excessive. The reasons put forward by the plaintiff, in addition to those mentioned earlier in the paragraph, included (inter alia) the following: 1. the quality of CGL's work was poor; 2. CGL incurred fees unnecessarily, both through matters that were never filed or were otherwise unnecessary; 3. CGL charged her for barrister fees without a barrister's cost agreement and cost disclosure, in circumstances where there was no final hearing; and 4. the legal costs were otherwise not fair and reasonable in all the circumstances.
The plaintiff elaborated on these submissions during the hearing of the application, although, to a large degree, they were merely reiterated.
In her written submissions, Mrs Young addressed the principles applicable to both rr 13.4 and 14.28 of the UCPR. However, for present purposes, it is not necessary for me to set out in any detail the submissions addressing the latter.
Rule 13.4 of the UCPR provides: Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Mrs Young accepted that, for a summary dismissal application to succeed, there must be a high degree of certainty about the ultimate outcome if the matter proceeded in the ordinary way, as made clear by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]. It was submitted that this threshold will be met if the claims are so obviously untenable that they cannot possibly succeed or are manifestly groundless, so that going to trial would involve useless expense, citing General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129-130 per Barwick CJ; [1964] HCA 69.
In respect of r 13.4(1)(b), the written submissions also posited that the power of the Court in relation to summary dismissal must be interpreted with due weight given to the inclusion of the term "reasonable", as well as the Court's statutory duty imposed by s 56(2) of the Civil Procedure Act 2005 (NSW) (CPA), citing Simmons v Protective Commissioner of NSW [2012] NSWSC 455 (Simmons) at [58] per Hammerschlag J (as his Honour then was).
I had the opportunity to further consider the decision in Simmons and the relationship between s 56 of the CPA and rr 13.4 and 14.28 of the UCPR in Hitchcock v Pratt Group Holdings Pty Ltd as trustee for the Pratt Family Holdings Trust [2024] NSWSC 1292 at [215]-[224]. It is unnecessary to reproduce my observations here, save to say that it is clear that the overriding purpose in s 56(1) of the CPA may in any given case have some impact on the application of r 13.4 of the UCPR, by reason of s 56(2).
In respect of r 13.4(1)(c), it has been said that the grounds upon which the Court may find an abuse of process are not closed: see Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (in liq) (2022) 275 CLR 508; [2022] HCA 3 at [93] per Gageler J. In her written submissions, Mrs Young enumerated a number of examples. Relevant examples included: the bringing of concurrent proceedings in different courts relating to the same subject matter (citing Moore v Inglis (1976) 50 ALJR 589); the re-litigating of issues which have already been determined in previous proceedings where the principles of res judicata or issue estoppel are applicable (citing Stokes (by a tutor) v McCourt [2013] NSWSC 1014); and the litigating of issues which could and should have been litigated in previous proceedings (citing Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45).
To support her submission that the proceedings should be dismissed in their entirety, Mrs Young pointed to a number of aspects of the new summons that were misconceived or otherwise problematic, including that: 1. no appeal of the District Court Judgment to this Court is available under s 127 of the DCA, as it was not made by the Judicial Registrar or a District Court judge - thus the references in the new summons to "an appeal" are misconceived; 2. the plaintiff had (and on one view might still have) a right of review under r 49.19 of the UCPR to a District Court judge, however the period in which such an application could have been brought expired some five years ago (although the Court has the power to extend such time under r 49.20(4) of the UCPR); 3. whilst the plaintiff seeks some form of judicial review of the District Court Judgment under Pt 59 of the UCPR, no grounds of appeal or review are provided and so the nature of the asserted error is unknown; 4. even if error were established, the power to grant the relief sought on judicial review is discretionary and highly unlikely to be exercised where the plaintiff had a statutory right of review under r 49.19 of the UCPR; 5. the plaintiff was refused leave to seek similar relief in respect of appeal or judicial review of the District Court Judgment in the related proceedings, and she should not be permitted to now seek such relief again - indeed, such conduct constitutes an abuse of process and would seriously undermine my rulings on the first day of the hearing of the related proceedings; 6. the relief set out at prayers 8 and 9 of the new summons is effectively the same relief sought by the plaintiff in the related proceedings, and it would be an abuse of process to permit the plaintiff to agitate for essentially the same relief in two sets of proceedings in this Court - those prayers should therefore be struck out; 7. the relief set out at prayer 5 of the new summons seeks to rely upon rr 36.16(2)(a) and (b) of the UCPR, which only afford statutory power to the Court in which default judgment was entered (i.e. the District Court), and in any case this was relief which the plaintiff sought leave to amend in the related proceedings and which was rejected - again, such conduct constitutes an abuse of process by seeking to raise the same points in new proceedings and undermines my orders in the related proceedings; 8. the relief sought in prayers 6 to 8 of the new summons is effectively the same relief as that sought in prayers 1 and 2 of the original summons in the related proceedings which, while the validity of the costs agreement issue in prayer 1 has been abandoned, is otherwise still being agitated in the part-heard related proceedings; and 9. relatedly, the plaintiff has elected to abandon the issue of the validity of the costs agreement or, alternatively, has waived her rights in relation to the same and should not be permitted to change course.
Mrs Young also made oral submissions which, in particular, addressed aspects of the history of the proceedings and the amounts that had been obtained by CGL consequent upon the District Court proceedings. I have set out those matters earlier.

Claim for appeal or review of District Court Judgment

It is clear on the evidence that the District Court Judgment was entered by a registrar of the Court, albeit the Principal Registrar rather than the Judicial Registrar.
Unless the Court orders otherwise, an application for default judgment may be dealt with in the absence of the parties and need not be served on the defendant: r 16.3(1A) UCPR.
There is a right of review, rather than appeal, under r 49.19 of the UCPR. Rule 49.19(1) provides: (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.
The word "court" is not defined in the UCPR. The Interpretation Act 1987 (NSW) (Interpretation Act) contains definitions of a number of specific courts and a definition of "rules of court" (Schedule 4) but does not contain any definition of "court". The noun "court" is defined in the CPA as ""court" includes tribunal": s 3. That definition of "court" in the CPA relevantly applies to the UCPR: s 11 Interpretation Act. However, that inclusive definition is not particularly illuminating as to what is meant by "court".
The proper construction of "court" involves looking at the text, context and purpose, but in the first instance one looks at the context: see e.g. s 33 Interpretation Act; Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71 at [3], [25] per Leeming JA (Bell CJ and Kirk JA agreeing).
The context of the UCPR is that it is uniform legislation which together with the CPA applies to the Supreme Court, the District Court and the Local Court.
The evident operation of the UCPR is that, generally speaking, where the expression "court" is used, it is to be construed in an ambulatory sense such that it identifies whichever court (whether it be the Supreme Court, the District Court or the Local Court) the relevant proceedings have been commenced in.
That construction is reinforced by s 10(1) of the CPA which provides that "Rules of court are taken to include the uniform rules to the extent to which they are applicable in that court", having regard to the definitions of "uniform rules" and "local rules" (s 3 CPA), and the provisions of the CPA in dealing with the relationship between uniform rules and local rules (s 11). The construction is further reinforced by the fact that there are certain provisions in the UCPR which instead of using the noun "court" identify that the power is applicable to or exercisable by a specific court by use of the proper noun for that court: e.g. rr 42.34, 54.6 (Supreme Court), r 42.35 (District Court), r 10.8 (Local Court).
That construction is also consistent with the ordinary English meaning of "court" which includes "a place where justice is administered": Macquarie Dictionary, online ed.
Thus, in r 49.19(1) of the UCPR where the "court" has power to review a direction, certificate, order, decision or other act of a registrar, the clear intent is that the court in which the registrar has made the relevant decision may review the decision.
Further, that has been the way r 49.19 has been applied. Hence: 1. the Supreme Court may review a decision of a registrar of the Supreme Court: e.g. National Australia Bank v Salubre [2024] NSWSC 1288 (Garling J); 2. the District Court may review a decision of a registrar of the District Court: e.g. Nowland as executor of the estate of the late Clare Margaret Nowland v The State of New South Wales [2023] NSWDC 505 (Dicker SC DCJ); and 3. the Local Court may review a decision of a registrar of the Local Court: e.g. Marinchek v O'Sullivan [2014] NSWLC 5 (Magistrate C O'Brien).
Specifically, an application to set aside a default judgment in the District Court consequent upon an order of a registrar for substituted service is heard by a judge of the District Court: e.g. Portcam Pty Ltd trading as Edge Residential Real Estate v Mervyn Keane [2021] NSWDC 686 (Wilson SC DCJ).
For completeness, I note that the UCPR distinguishes between a registrar of the District Court and a judicial registrar of the District Court. So, r 49.19 does not apply in respect of the judicial registrar of the District Court: r 49.14 UCPR.
Consequently, here, the right of review of the decision of Registrar Romeo as a registrar of the District Court is, or was, to a judge of the District Court. That application must have been brought within 28 days from the "material date", which is the date of the order or decision, being 11 November 2019: r 49.20(2) UCPR. However, the District Court can extend the time for such an application: r 49.20(4) UCPR. The plaintiff has not, so far as the evidence discloses, ever made such an application.
There is a form of right of appeal from a judgment or order of a judge or judicial registrar of the District Court to this Court pursuant to s 127 of the District Court Act 1973 (NSW) (DCA). However, that provision does not apply to the decision of a "registrar" of the District Court.
Even if an appeal pursuant to s 127 of the DCA were applicable, it would not be assigned to the Equity Division. An appeal from a judgment or order of a District Court Judge is assigned to the Court of Appeal and required to be commenced by filing and serving a notice of appeal: s 48 of the Supreme Court Act 1970 (NSW).
To the extent that the plaintiff seeks a form of judicial review, and is indeed able to bring such an application, I accept the submissions of Mrs Young as to the deficiencies in the plaintiff's new summons. The plaintiff has not disclosed any grounds upon which any review is sought. In any case, in light of the provisions outlined above regarding the review of decisions of registrars, it is not evident to me that there can be a type of judicial review application in this Court.
Further, in any event, judicial review proceedings under Pt 59 of the UCPR must have been commenced within three months of the date of the decision: r 59.10(1) UCPR. The Court may at any time extend the time for commencing the proceedings pursuant to r 59.10(2) of the UCPR. However, in considering whether to extend the time, the provisions of r 59.10(3) set out matters the Court should take into account such as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest.
Were it necessary to decide, I do not consider that the circumstances of this case would warrant an extension of time.
In prayer 5 of the new summons, the plaintiff also made reference to r 35.15 of the UCPR. Evidently that is a mistaken reference and it was intended to be a reference to r 36.15 of the UCPR. Accepting that, I am nonetheless not satisfied that rr 36.15 or 36.16 of the UCPR have any application here. Any application to set aside the District Court Judgment ought to have been made in the District Court in the first instance.
I consider that the relief sought in prayers 1 to 5 of the new summons is untenable. Further, given that the plaintiff had sought leave to pursue similar relief on the hearing of the related proceedings which was denied, I consider that her attempt to re-agitate similar claims by her new summons constitutes an abuse of process of this Court.

Remaining claims

In respect of prayers 6 to 9 of the new summons, I accept Mrs Young's submission that those claims, in substance, attempt to re-agitate the claims made by the plaintiff that were either abandoned in or indeed are still the subject of the related proceedings. The plaintiff ought not be permitted to seek essentially similar relief in two concurrent proceedings in this Court. I do not consider that the additional references to provisions of the LPUL in prayers 6 and 8 change that assessment.
Prayer 10 does not seek any substantial relief.

Conclusion

For the above reasons, I consider that the plaintiff's new summons ought to be dismissed pursuant to r 13.4(1) of the UCPR.

Costs

The notice of motion makes reference to r 42.20 of the UCPR. Rule 42.20(1) relevantly provides: 42.20 Dismissal of proceedings etc (1) If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed.
Here, there will be an order for the dismissal of the new summons. Whether one applies the general rule that costs follow the event (r 42.1) or r 42.20(1), I determine that there should be an order that the plaintiff pay CGL's costs in the proceedings.
CGL further seeks a gross sum costs order. The evidentiary basis for the costs order was set out in the affidavit of Ms Hutchinson at [22]-[30]. In addition, Mrs Young tendered: 1. an email from the plaintiff to my Associate dated 27 September 2024 at 9:57 am, to which I have referred earlier, indicating that the plaintiff is making preparations to relocate overseas permanently from January 2025; and 2. an invoice of hers (Mrs Young), issued on 10 December 2024, for a total amount payable of $6,270 inclusive of GST.
The claim for the fixed sum initially comprised three components, being; $1,436 for a filing fee payable on filing the notice of motion; $1,189 for the cost of the transcript of the hearing on 26 September 2024 in the related proceedings; and $4,400 for counsel's estimated fees, including those for appearing on the notice of motion.
When I questioned the inclusion of the transcript fee, Mrs Young did not press that sum.
Mrs Young made reference to the High Court's consideration of the "Chorley exception" in Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 in explaining why professional costs on behalf of CGL were not being sought.
I have heard submissions from the plaintiff which in part referred back to the matters she had already earlier raised in relation to the District Court Judgment. She also made reference to the stress that the proceedings have placed on her, and the fact that she has lost contact with family members.
Consequent upon statements made by the plaintiff that she had no money, Mrs Young also submitted that that was a factor which supported making a gross sum costs order.
The Court is empowered, pursuant to s 98(4)(c) of the CPA, to make a specified gross sum costs order instead of assessed costs.
As Mrs Young noted by reference to the Court of Appeal's decision in Ahern v Aon Risk Service Australia Pty Ltd (No 2) [2022] NSWCA 39 at [15], one of the purposes of specified gross sum costs is to avoid the expense, delay and aggravation likely to be involved in a contested costs assessment process. See more generally Ritchie's Uniform Civil Procedure NSW at [s 98.60]-[s 98.70].
Having regard to the vexing litigation that has taken place between the parties over a number of years, and the fact that the plaintiff has expressed an intention to permanently relocate overseas from January 2025, I consider that it is appropriate to make a gross sum costs order in favour of CGL. It is evident that at least one of the relevant considerations is the desirability of avoiding further expense and delay in resolving the costs of the proceedings. I consider that a gross sum costs order will achieve that.
The amount for Mrs Young's fees, in my estimation, are a reasonable amount and ought to be allowed. I also allow the amount of the filing fee for the notice of motion. The total of those two amounts is, on my calculation, $5,836.

Orders

The orders of the Court are as follows: 1. Grants leave to the Defendant to file and serve an Amended Notice of Motion that claims relief on alternative grounds pursuant to r.13.4 Uniform Civil Procedure Rules 2005 (NSW) or and/or the Court's inherent jurisdiction. 2. Directs the Defendant to file and serve such Amended Notice of Motion within 7 days of the date of this order. 3. Grant leave to the Defendant to proceed instanter to seek the relief which will be formally set out in the Amended Notice of Motion to be filed. 4. Notes that the hearing today has been conducted on the basis set out in Order 3. 5. Orders the Summons is dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW). 6. Orders the Plaintiff pay the costs of the Defendant in the gross sum amount of $5,836.

Endnotes

There is slightly differing evidence of the exact amount recovered, it being either $252,604.87 or $252,604.76. For present purposes, the precise sent amount is immaterial.
Readers should be made aware that the strikethrough and underlining in the extract can only be seen when viewing this judgment on the NSW Caselaw website. The strikethrough pertains to the first sentence of paragraph 5 of the extract. The underlining pertains to the following parts of the extract: the words "referee to determine under s 199(2(a) of Legal Profession Uniform Law" and "if matter referred to referee and gross sum costs order not made." in paragraph 1; the second sentence of paragraph 5; the entirety of paragraph 7; and the entirety of paragraph 8.
This appears to be an intended reference to r 36.15 of the UCPR.

Amendments 21 January 2025 - Coversheet - legislation added [29] - footnote 2 added [90] - change "r 42.40(1)" to "r 42.20(1)" 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: 21 January 2025

Acts Interpretation Act 1987(NSW)

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Cases Cited (23)