Shapkin v Lorenzato [2024] NSWSC 1630 | Case summary

Shapkin v Lorenzato [2024] NSWSC 1630 | Case summary | Zoe

Context

The context for this application is that, by email to my chambers of 23 September 2024, the plaintiff confirmed that he was "ready" for the proceedings to be heard. He did not seek an adjournment at the commencement of the substantive hearing on 25 September 2024, but did so at the end of his reply submissions, at around 4.30pm. Shortly before that he had sought leave to rely upon further evidence, which leave was refused. By way of further context, at the commencement of the substantive hearing the plaintiff tendered affidavits from himself affirmed 15 March 2023, 24 April 2024 and 8 May 2024, together with exhibits to these affidavits and these were provisionally admitted subject to any submissions that may be made by counsel for the Attorney General of New South Wales (the Attorney General), appearing as amicus curiae in these proceedings, who had not seen these documents. The exhibits to these affidavits included full transcripts of a number of Tribunal hearings, and correspondence between the parties relevant to the issues in the substantive proceedings, but after I indicated to the plaintiff that there were matters in that evidence that appeared to be significant and which he had not dealt with in his submissions, he rescinded the tender. At the hearing on 25 September 2024, he thus only tendered the court book, which clearly did not include all material before the Tribunal or Appeal Panel for the purpose of the various decisions and orders challenged by the plaintiff in the proceedings, nor did it include complete transcripts of key hearings which resulted in the various decisions and orders challenged by the plaintiff in the proceedings.
During the hearing on 25 September 2024, on a number of occasions I explained to the plaintiff that, as the onus of proof rested on him, it was for him to satisfy the Court as to the matters upon which he relied. I also explained that photocopies of the two key documents that he relied upon (described in my judgment in the substantive proceedings as the January and February 2022 Documents) were not sufficient, in my provisional view, to establish that the residential tenancy agreement dated June 2021 that he had entered into with the defendant had been terminated. It was also made clear to the plaintiff that there was no evidence before the Court as to what was put to the Tribunal about the January and February 2022 Documents, in particular because as regards one of the Tribunal hearings, on 22 February 2022, the plaintiff had tendered only two pages of the transcript of the proceedings (although the full transcript had been part of the tender that the plaintiff had rescinded during the hearing on 25 September 2024). At one stage during the hearing, after the plaintiff asserted that the January and February 2022 Documents were in evidence "at first instance", I said to the plaintiff: "But I don't know what else was in evidence about those documents. See, you haven't put before me the full gamut of everything that was before the tribunal. I just don't know."
I later said to the plaintiff: "But what we don't know is what else was before the tribunal. … We don't know whether there was also evidence before the tribunal that the parties had then rescinded the agreements or that the parties had agreed that those agreements weren't binding, the documents themselves weren't binding."
I also explained to the plaintiff that it was "absolutely conventional" in judicial review proceedings for the material that was before the decision-maker to be provided to the Court, and that as he had chosen not to do that, there was an "evidentiary gap".
Having informed the Court by email of 26 September 2024 that he intended to file an application to reopen the proceedings, on 28 October 2024 the plaintiff filed an application for leave to reopen the proceedings, supported by an affidavit affirmed 3 October 2024. That affidavit did not identify what material the plaintiff was seeking to rely upon if leave to reopen was granted. On 29 October 2024 the Court notified the plaintiff that the Court proposed to list this matter for directions on 13 November 2024 with a view to identifying, "with precision", the evidence Mr Shapkin wished to tender on his application to reopen.
There was a directions hearing on 13 November 2024. At the commencement of that hearing I explained to the parties that my provisional view was that directions should be made that the plaintiff file and serve all affidavit and other material on which he wished to rely in support of his application to reopen on or before 20 November 2024. The plaintiff indicated that that was suitable. At that hearing, I explained to the plaintiff: "What you need to do is you need to advance the evidence that you say should justify the Court reopening the proceedings. So, you need to persuade me that notwithstanding that this matter has been litigated over some time and that there was a lengthy hearing, that I should grant leave to reopen and you need to put on anything that you wish to tender by way of reopening at the same time."
I also said to the plaintiff: "You have indicated that you wish to make an application to reopen. It is for you to have the material ready efficiently for the purposes of that application to reopen. Why is it that you have not requested those transcripts until after today - by today?"
Later during the directions hearing, there was the following exchange: "HER HONOUR: You haven't sought to file anything in Court. Mr Shapkin, I don't want to engage in these discussions, but it should be very clear to you that if there is any evidence that you will wish to tender on reopening, that must be served in the date or the time I have indicated because that is the material that you will be relying upon in support of your application to reopen and it will not be satisfactory for you to indicate in your application that there is further evidence that you would wish to tender. I would want, in accordance with the directions that I have made, that any matter that you now wish to rely upon and which is the basis upon which you seek to reopen must be put before the Court in accordance with those directions. Do you understand that? PLAINTIFF: Yes, your Honour. I am not alluding to the evidence. The evidence order is fine."
At the conclusion of that hearing I made orders including that the plaintiff file and serve all affidavit and other material on which he wished to rely in support of his application to reopen on or before 20 November 2024. I would add that, at the directions hearing on 13 November 2024, after the plaintiff raised possible difficulties in the time that would be needed for transcripts to be produced, I indicated to the plaintiff that if he was delayed in obtaining the transcripts he wished to tender, he could apply to vary my orders.
On 19 November 2024, the plaintiff sent an email to my chambers seeking an extension of time for filing documents as he said that he had filed an application to inspect the documents from the Tribunal "last week" but the documents were still being located and he was also waiting for a transcript of the hearing before the Tribunal on 28 January 2022 to be produced. Attached to this email from the plaintiff was an application to the Court dated 14 November 2024 to inspect documents produced under subpoena. On 20 November 2024 at 12.41am, the plaintiff sent an email to the Court indicating that he was happy to file and serve the documents by "this Thursday", being 21 November 2024. Later on 20 November 2024 at 9.33am, the plaintiff sent a further email seeking an extension of time for filing his evidence. This email chain included an email from the Supreme Court to the plaintiff on 19 November 2024 indicating that the "NCAT file produced on 29/8/23 will be available for inspection from 9 am tomorrow". By email of 20 November 2024 from my chambers, the plaintiff was informed that he would be granted an extension of time until 4.00pm on 22 November 2024 to file and serve the evidence he sought to rely upon by way of reopening.
The directions of 13 November 2024 also provided for submissions to be filed by the Attorney General and by the plaintiff in reply.
On 22 November 2024, the plaintiff filed an affidavit affirmed the same date, to which a number of documents, including photographs of Tribunal and Appeal Panel files and of documents apparently with those files, and transcript covering pages (but no transcripts), were attached. On the same day the plaintiff filed submissions on the application to reopen. The Attorney General filed submissions on 28 November 2024 noting the absence of any transcript evidence from the plaintiff. The plaintiff filed submissions in reply, in which he asserted (erroneously) that the directions of 13 November 2024 did not require him to file full transcripts, but only to file evidence to show that such transcripts were in existence. That was plainly not the case given the interchanges during the directions hearing on 13 November 2024.
On 6 December 2024, I made the following orders: "1. Leave be granted to the plaintiff to reopen his case in proceedings 2022/379809 and 2022/379871 solely to file and rely upon the following evidence: a. Provided that these are filed by 4 pm on 9 December 2024 but not otherwise, the transcripts of New South Wales Civil and Administrative Tribunal proceedings RT21/43089, RT21/51564, 2022/06803, 2022/0074365, RT22/14212, 2022/106665 but only to the extent that those transcripts are not already tendered in these proceedings; and b. the affidavit of the plaintiff affirmed 22 November 2024. 2. For the avoidance of doubt, the plaintiff does not have leave to rely by way of re-opening upon any evidence other than that in order 1. 3. Any submissions of the plaintiff going solely to the issue of the relevance of the evidence to be filed and relied upon by way of re-opening, limited to 3 pages in a font no less than 12 point, by 4 pm on 9 December 2024."
Almost immediately after an email was sent to the plaintiff informing him of these orders, he sent an email to my associate seeking to add to order 1 "all the documents filed by the landlord in support of her application in proceedings 2022/06803". This was one of the Tribunal proceedings, in which one of the decisions challenged by the plaintiff was made.
That request was refused.
On 9 December 2024 the plaintiff filed submissions in support of his first application to reopen, attaching transcripts of various Tribunal proceedings.

[3]

Determination

As set out by Stevenson J in Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168 at [46]-[47]: "The principles upon which the Court acts when faced with an application to reopen are settled. Those principles are that: (a) the overriding question is whether the interests of justice are better served by allowing or refusing the application; (b) the power to grant leave should be exercised with great caution having regard to the public interest in maintaining the finality of litigation and, generally speaking, should not be exercised unless the applicant can show that by accident without fault on his or her part, he or she has not been heard; (c) classes of cases in which leave may be granted include, but are not limited to where: (i) fresh evidence, unavailable or not reasonably discoverable before, becomes known and available; (ii) there has been inadvertent error; (iii) there has been a mistake in the apprehension of the facts; and (iv) there has been a mistaken apprehension of the law. (d) the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the Court. (e) nor is leave to be granted 'simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put'; (f) what must be shown is that the Court has 'apparently proceeded according to some misapprehension of the facts or the relevant law and that that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing'; and (g) where, as here, the case has been closed, and judgment reserved and delivered, exceptional circumstances must be shown. It is implicit in all the cases considering this question, that some explanation must be offered as to why the evidence sought to be deployed was not tendered at the appropriate time." (footnotes omitted)
Neither the plaintiff's motion filed on 16 December 2024, nor his affidavit of 10 December 2024, identifies what material the plaintiff seeks to rely upon by way of further reopening. The plaintiff's affidavit affirmed 10 December 2024, and filed 16 December 2024, simply states that he filed an application to the Supreme Court of New South Wales Registry (the Registry) to inspect all NCAT files produced under subpoena, received orders for the filing of evidence by 22 November 2024 and on 20 November 2024 was informed by email from the Registry that the Tribunal files were incorrectly labelled and that the files were finally produced on 21 November 2024.
In the motion filed 16 December 2024, the plaintiff contends that the interests of justice require the admission of "the further evidence" (unspecified), that the further evidence (unspecified) would most probably affect the result of the case and could not by reasonable diligence have been discovered earlier and that the overriding principles of procedural fairness require that this evidence be admitted. He also contends that he would be prejudiced or disadvantaged if the application was not granted and that the interests of the defendant would not be prejudiced by the late admission of the (unspecified), further evidence. In oral submissions the plaintiff referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1980) 162 CLR 24; [1986] HCA 40 and Kioa v West (1985) 159 CLR 550; [1985] HCA 81 and said that the further evidence that he wished to rely upon was the entirety of the written material before the Tribunal and Appeal Panel, which he said was essential for his case.
The evidence advanced by the plaintiff does not suggest any reason why, given the history set out above, the applicant did not apply to the Registry to inspect the files before 14 November 2024, over six weeks after both the substantive hearing on 25 September 2024 and the plaintiff's email to my associate on 26 September 2024 indicating that he intended to file an application for leave to reopen the proceedings. This is particularly surprising given that the application to the Registry dated 14 November 2024, annexed to the plaintiff's affidavit affirmed 10 December 2024, indicates that the relevant files were produced to the Court on 29 August 2023 and that the plaintiff was granted access to those files on 29 September 2023.
The plaintiff's affidavit affirmed 10 December 2024 also annexes an email from the Registry at 9.41am on 20 November 2024 to the plaintiff. It does not include the email from the plaintiff to which this email responds. In the email from the Registry, it is stated: "I can confirm that the delay was due to item C-4 incorrectly being placed in a box containing a different item, C-1. This most likely occurred on 22 April 2024 after you last view items C-1 and C-4. I apologise for what I can only assume was an inadvertent error by the clerk assisting you with viewing the files on that occasion and the delay it caused for us acting upon your recent inspection request."
This makes it plain that the plaintiff had viewed the material produced on subpoena in April 2024, and that there had been some delay as regards inspection. The plaintiff had all of 21 November 2024 and time on 22 November 2024 to photograph or otherwise prepare evidence to be filed with the Court. That he did not choose to photograph more of the documents before the Tribunal was a matter for him. Whilst my decision to dismiss the plaintiff's application does not depend upon this finding, I do not accept that he was unable to photograph the documents before the Tribunal, upon which he now seeks to rely, in the time available.
In all the circumstances, I am not satisfied that the material upon which the plaintiff now seeks to rely was not reasonably available to him well before now. I also do not accept that the plaintiff could not have filed evidence that he wished to tender by way of reopening by 22 November 2024 in accordance with the Court's directions of 13 November 2024. I would add that, for the reasons that are included in the judgment in the substantive proceedings, I am not satisfied that the material the plaintiff seeks leave to rely upon was not reasonably available well before the substantive hearing on 25 September 2024. The plaintiff has been given more than a fair opportunity to tender material upon which he wishes to rely, both at the substantive hearing and by way of reopening. As to the latter, it is of some significance that there was a period of almost two months between the plaintiff first telling the Court that he would apply to reopen his case, and 22 November 2024 when (after an extension) his evidence on reopening was to be filed. Even after that he was granted a further indulgence and permitted to tender transcripts of Tribunal hearings that had not been filed in accordance with the Court's directions of 13 November 2024.
The public interest in maintaining the finality of litigation is also of considerable weight as regards this, the plaintiff's second application to reopen his case. I would also reject the contention that no prejudice will be caused to the defendant. It is plainly in her interest to have these proceedings, which arise out of events in early 2022, finally determined. In any event, given my findings as to utility in my judgment in the substantive proceedings, it is highly unlikely that tender of further evidence would have affected the result of the proceedings.
In these circumstances, it is not in the interests of justice that the plaintiff be granted leave to reopen the proceedings.

Shapkin v Lorenzato

At a glance

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Judgment (5 paragraphs)

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Cases Cited (8)