[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: The applicant, Dr Vito Zepinic, filed a summons seeking leave to appeal on 6 November 2015. The respondent, Chateau Constructions (Aust) Ltd, filed a notice of motion on 5 February 2016 seeking, variously, that the summons be dismissed or struck out or that security for costs be provided. Both were listed for hearing on 16 March 2016.
The summons appears to have been prepared by Dr Zepinic without the assistance of lawyers. In relation to the decision from which leave to appeal is sought, it identifies the date of hearing as 18 December 2014 and the material date as 22 December 2014. It is true that some orders were made on 18 December 2014, and those orders were included in the white folder prepared by Dr Zepinic. However, the white folder includes an ex tempore judgment by Rein J on 12 December 2014 (Chateau Constructions (Aust) Ltd v Zepinic (Supreme Court (NSW), Rein J, 12 December 2014, unrep)) and the draft notice of appeal identifies that judgment as the judgment sought to be challenged. Dr Zepinic confirmed in his oral submissions that his challenge was to that judgment.
On 12 December 2014, Rein J made orders permitting the money judgments obtained by Chateau Constructions since 11 August 2014 to be included in the distribution of funds from the proceeds of sale of a property in Turramurra. His Honour also made a charging order under s 126 of the Civil Procedure Act 2005 (NSW). Unfortunately, those orders were not included in the white folder.
The sole proposed ground of appeal is:
"The Court below erred in law while entering a judgment contrary to the regulations prescribed by Part 11A of the UCPR 2005 and rule of court."
Chateau Constructions' application came before his Honour on a notice of motion filed 14 November 2014. There was no appearance by Dr Zepinic or his wife (who was joined as a respondent to the motion). Questions of service and notice were raised on that (interlocutory) application, and the primary judge concluded, after analysing the evidence as to service, that:
"I am satisfied not only that service has been effected, but that the defendants have notice of the notice of motion and the orders sought and the basis for the motion" (at [22]).
[3]
The parties' submissions
Dr Zepinic's submissions in support of the summons seeking leave to appeal focus upon the requirements to effect personal service out of Australia in respect of originating process, and maintain that both he and Milla Zepinic have lived outside Australia for six years and do not have a residential or business address in Australia for service. It is also submitted that they do not have any legal representative nor an authorised person for service in Australia (and, consistently with this, Dr Zepinic has not given any Australian address for service on the summons - he provides an email address and an address in London). Dr Zepinic maintains that the provisions as to service of "local judicial documents" in Part 11A of the Uniform Civil Procedure Rules 2005 (NSW) are mandatory and applied to Chateau Constructions' notice of motion. There was no dispute that the formal procedures in that Part had not been complied with.
Chateau Constructions submits, as its primary submission, that the summons is incompetent, because it does not appeal against a judgment or order of the Court. In part that is based upon the confusion between the dates referred to in the summons and the judgment of Rein J in the White Folder and the draft notice of appeal. However, Chateau Constructions' principal submission is that the complaint that Rein J erred in being satisfied that service was effected could not found an appeal. It submits that "[t]his state of satisfaction of the Court below with respect to service being properly effected is not a judgment or order picked up by section 101 of the Supreme Court Act 1970", and it relies on what has been said on this point in Zepinic v Chateau Constructions (Aust) Ltd [2014] NSWCA 27; 85 NSWLR 289 at [7]-[9].
There are two further matters on which Chateau Constructions relies in support of its submission that the summons is incompetent. Chateau Constructions maintains that Dr Zepinic is wrong to rely on UCPR r 11A.12, which applies to setting aside judgments in default of appearance. It also submits that the summons seeking leave to appeal is itself defective in that it does not specify an address for service within Australia. That is a matter that was raised in earlier proceedings in this Court between the same parties. In Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [46] this Court observed:
"This application has proceeded in the absence of Dr Zepinic, even though Dr Zepinic was the moving party in this Court. It is important that persons commencing proceedings comply with the rules to ensure that they nominate an Australian address where they may be readily and promptly served; originating process that fails to do so is apt to be regarded as incompetent."
That said, Chateau Constructions did not file an objection to competency, and its motion was not filed within 28 days of being served. In oral submissions, it accepted that if the application were dismissed for want of competency, the default provision contained in r 51.41(2) (namely, that it should not obtain a favourable costs order) would apply.
Chateau Constructions also submits that nothing had been said in support of the (considerable) extension of time for leave to appeal which is required for this application.
Nothing was said in writing or in oral submissions in support of the application for security for costs, and there was no evidence of the costs incurred or likely to be incurred.
[4]
Competency of the application for leave to appeal
The point having been taken by Chateau Constructions, the threshold question is the competency of the application for leave to appeal. Has this Court's authority to grant leave to appeal been validly invoked?
Chateau Constructions' primary submission on competency is misconceived. Orders were made on 12 December 2014, on Chateau Constructions' application. Those orders were made in the absence of Dr Zepinic and his wife. Dr Zepinic is entitled to seek leave to appeal from those orders, and to rely on what he maintains is a deficiency in the primary judge being satisfied that he had notice of the application.
Nor does Zepinic v Chateau Constructions (Aust) Ltd [2014] NSWCA 27; 85 NSWLR 289 support Chateau Constructions' submission. That decision held that Dr Zepinic was not able to challenge a decision in which findings adverse to him were made, because Chateau Constructions' notice of motion had been dismissed. This Court applied the long-standing authority that appeals only lie from orders adverse to the appellant, and dismissed Dr Zepinic's challenge. Those principles do not apply to Dr Zepinic's latest application in this Court, because on 12 December 2014 orders were made adverse to him which he seeks to have set aside.
Secondly, although we agree that Dr Zepinic's reliance on UCPR r 11A.12 is misplaced, that does not go to the competency of the application for leave to appeal but to its merits.
However, there is the matter that Dr Zepinic has not given an Australian address on his application for leave to appeal. In the highly unusual facts of this case, we regard that noncompliance with the rules as meaning that his summons is incompetent.
Originating process filed on behalf of a party in any proceedings must contain the party's address and the party's address for service, and the latter must be a place in New South Wales: UCPR rr 4.2(1)(g) and 4.5. The ordinary price of invoking a court's jurisdiction is that the party must render himself or herself able to be served by the defendants (including, for example, by a cross-claim).
Two things make the question of an address for service critical in this litigation. The first is that the nature of Dr Zepinic's claim, repeated in many decisions to which he is party, is that because he has no local address, he must be served personally and through the mechanism established by Pt 11A of the UCPR, even though he reserves to himself the right to initiate proceedings without providing a local address. The second is that this Court addressed this very point in 2014 in proceedings between the same parties holding that "originating process that fails to [nominate an Australian address for service] is apt to be regarded as incompetent": [2014] NSWCA 99 at [46]. Dr Zepinic has not complied with that unambiguous warning.
It does not follow from the foregoing that any litigant's originating process which omitted a local address for service would necessarily be incompetent. Still less would it follow that such a litigant would be precluded from filing an amended originating process which complied with the Court's rules. But Dr Zepinic's litigation is all about service. He is a party to a judgment that warned him unambiguously of the consequences of not providing a local address for service. Despite that judgment and Chateau Constructions' submissions, he made no application to amend. He maintains that he can repeatedly invoke the jurisdiction of Australian courts without complying with the rules facilitating defendants being able readily to serve process on him in return. That is not the position at law.
It follows that the application for leave to appeal should be dismissed as incompetent.
What follows is not necessary to this Court's decision dismissing Dr Zepinic's summons seeking leave, and was not the subject of full submissions, but is provided because Dr Zepinic seems to consider his submissions based on Pt 11A as unanswerable.
The application heard in December 2014 was, on any view, an interlocutory application, brought by notice of motion filed in proceedings commenced in 2009. Personal service is not required of notices of motion. UCPR r 10.20(1) states the general rule that any document may be served personally, but "need not be personally served unless these rules so require or the court so orders".
Dr Zepinic's submissions are primarily based on in Pt 11A, which implements the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Those rules apply to "local judicial documents". Although as Dr Zepinic observes, the term "local judicial document" is not defined, it would be surprising if on its true construction Pt 11A altered long-standing rules as to the service of notices of motion. After all, art 10 of the Convention states that "Provided the State of destination does not object, the present Convention shall not interfere with ... the freedom to send judicial documents, by postal channels, directly to persons abroad". As one commentator has observed, this "makes it clear that the purpose of the Convention is to provide additional methods of service, and is not to replace or abolish those less formal methods of service": A Briggs, Private International Law in English Courts (2014, Oxford University Press), at 369.
That said, there are questions of the precise operation of Pt 11A (which only took effect upon Australia's accession to the treaty in 2010) which are best left to a case where the question is the subject of full submissions, and where its answer will affect the outcome.
One further matter should be mentioned. This is not the first time in which substantially the same points about service have been raised in proceedings between the parties, including in this Court: see Zepinic v Chateau Constructions (Aust) Ltd [2014] NSWCA 27; 85 NSWLR 289 at [7]. A litigant who continues to advance a point when it has repeatedly been determined against him or her may be committing an abuse of the processes of the court, and may be bringing proceedings which fall within the definition of "vexatious proceedings" under the Vexatious Proceedings Act 2008 (NSW). It should not be thought that Dr Zepinic can repeatedly bring proceedings against Chateau Constructions agitating the same matters.
For those reasons, the summons seeking leave to appeal filed on 6 November 2015 should be dismissed as incompetent. Chateau Constructions accepted that its delay in raising competency carried costs consequences. Moreover, Chateau Constructions' principal submission was ill-founded. In the circumstances, there should be no order as to costs.
[5]
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Decision last updated: 22 March 2016