Zepinic v Eventus Lawyers Pty Ltd trading as SLF Lawyers

Supreme Court of NSW|2024-04-10|Before: Chen J, Rothman J

Introduction

By summons (described as: Summons (Judicial Review)) filed on 5 October 2023, Vito Zepinic ('the plaintiff') seeks judicial review of a decision of Rothman J delivered 23 June 2023: Zepinic v Eventus Lawyers Pty Ltd t/as SLF Lawyers (No 2) [2023] NSWSC 699. The references in these reasons (J[1] etc) are to paragraphs of that judgment.
The proceedings before Rothman J concerned a claim for alleged professional negligence that the plaintiff made against his former solicitors, Eventus Lawyers Pty Ltd ('the defendant'), and also with a notice of motion, filed by the plaintiff on 28 September 2022, that Rothman J described as "seeking 15 orders to set aside numerous judgments and orders of courts in previous proceedings, as well as annulling or invalidating certain transactions that have occurred since 2009": at J[3].
Rothman J dismissed the proceedings, entering judgment for the defendant, and also dismissed the plaintiff's notice of motion. The plaintiff seeks "judicial review" of these orders.
The defendant, by notice of motion filed 7 November 2023, seeks an order that the plaintiff's summons be summarily dismissed, under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') and further, or in the alternative, an order that the plaintiff's claim for relief dealing with the notice of motion that the plaintiff filed on 28 September 2022, be permanently stayed as being commenced in contravention of orders made on 25 May 2017 under s 8(7) of the Vexatious Proceedings Act 2008 (NSW).

The non-appearance of the plaintiff

The plaintiff did not appear when the matter was initially called. He did not appear after the matter was called outside Court.
The defendant sought to proceed in the absence of the plaintiff. It was submitted that the plaintiff was notified of the hearing of the defendant's notice of motion and, given that matter, the defendant is entitled to proceed in the absence of the plaintiff.
The defendant relied upon an affidavit of its solicitor, Baron Alder, sworn 5 April 2024 to establish such notice. It was submitted that the plaintiff was advised of today's hearing in the following ways.
The first way that the defendant sought to prove that the plaintiff was aware of today's hearing was by reliance upon an email sent by the solicitors for the defendant to the plaintiff on 12 December 2023: Alder affidavit, par 3 and annexure 'A'. That email advised the plaintiff of the orders that were made by the Court on 12 December 2023. The orders included fixing the defendant's notice of motion for hearing on 10 April 2024 and orders for the filing and service of evidence as well as submissions by both parties. The email was sent to the plaintiff's email address that was identified on the front page as the 'contact email' for the plaintiff. That email address also appears on the last page of the summons, with the plaintiff's other address details.
No email was received to indicate that this email had not been delivered to that address (unlike on later occasions): Alder affidavit, par 4.
Section 161 of the Evidence Act 1995 (NSW) creates a presumption in relation to electronic communications other than those referred to in s 162 (a section that is not presently relevant). The term 'electronic communication' is defined in the Dictionary and relevantly extends to an email: see, in this last respect, by way of example, Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155 at [17]-[18]; Kegran Pty Ltd v Warrik Pty Ltd (2018) 19 BPR 38665; [2018] NSWSC 1357 at [30].
By s 161(1), it is presumed "unless evidence sufficient to raise doubt about the presumption is adduced" that the email: (1) was sent in the form of the email dated 12 December 2023 (s 161(1)(a)); (2) was sent by the solicitors for the defendant (s 161(1)(b)); (3) was sent on 12 December 2023 at 6:52pm (s 161(1)(c)); (4) was "received at the destination to which it appears from the document to have been sent" (s 161(1)(d)); and (5) as it appears from the email that the sending concluded at the time identified, "was received at that destination at that time" (s 161(1)(e)).
As I have noted, above, no email or other communication was received to indicate that this email had not been delivered to that address. There is, I accept, no evidence sufficient to raise doubt about the presumption. Accordingly, the presumption created by s 161(1) establishes service of the email and notification of the hearing date.
The second way that the defendant sought to prove that the plaintiff was aware of today's hearing was by reliance upon a letter sent from the solicitors for the defendant to the plaintiff dated 19 March 2024: Alder affidavit, par 8 and annexure 'D'. That letter was addressed to the plaintiff's address as stated in the summons. In relation to service of the letter dated 19 March 2024, the defendant relied upon s 160 of the Evidence Act in order to engage the presumption that the letter sent was received at the nominated address.
It is accepted that in order to prove service by post, it is necessary to establish a number of matters. They were described in Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869 (at [13]) as follows: In order to prove service by post, it is necessary that the evidence of one or more witnesses establish a number of core and indispensable matters: that the document said to have been served by posting of it to a given address was placed inside an envelope, that the envelope had that address written or typed on its face, that a postage stamp or franking of the necessary amount was affixed to the envelope and that the envelope so addressed and stamped or franked was physically deposited in the post either at a post office or by being dropped into a post box for the reception of mail articles.
There are a number of other cases to similar effect including Snow v Snow [2015] NSWSC 90 at [16].
Here, however, the evidence was confined simply to the following in the solicitor's affidavit, par 8: On 19 March 2024, I also caused the letter and submissions which form part of Annexure D to be sent by post to Mr Zepinic at the address [nominated in the summons filed].
It is apparent that a number of matters required to be demonstrated in order to secure the presumption of service provided by s 160 are not addressed by this evidence. In my view, service of the 19 March 2024 letter (and accompanying documents) has not been proven. Accordingly, I am not satisfied that the plaintiff had notice of this hearing by the presumed receipt of that letter.
Nevertheless, given the plaintiff was notified of today's hearing involving the defendant's notice of motion by the email dated 12 December 2023, I propose to proceed in the absence of the plaintiff.

Background

It is necessary to make some brief reference to the background facts.
The proceedings before Rothman J, as earlier noted, involved a claim by the plaintiff against his former solicitors for professional negligence. The allegation of the plaintiff was that the defendant breached retainers in the period 2017-2018 - retainers described by Rothman J as the 'March 2017 retainer' and the 'April 2018 retainer' - causing him to suffer loss and damage.
In connection with the March 2017 retainer, the allegation was that the defendant failed to represent him in vexatious litigant proceedings and, further, failed to institute court proceedings against the Trustee who had been appointed by orders made by Slattery J on 8 April 2010 to sell a property formerly owned by the plaintiff and his wife: see J[10]-[12], [67]-[68].
The reference to vexatious litigant proceedings is a reference to proceedings heard by Pembroke J, on 9 May 2017, for orders under the Vexatious Proceedings Act against the plaintiff. At the hearing of that application, neither the plaintiff, nor anyone on his behalf, appeared and a range of orders were made under that Act: J[17]-[19]. The plaintiff appealed against those orders and, by judgment delivered on 14 December 2018, the Court of Appeal dismissed the plaintiff's appeal: Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317.
Rothman J dismissed the plaintiff's claims in connection with the March 2017 retainer: J[125]-[126].
In connection with the April 2018 retainer, the allegation was that the defendant failed to pursue a defamation action on behalf of the plaintiff, contrary to his instructions: J[92]-[102].
Rothman J dismissed the plaintiff's claim in connection with the April 2018 retainer: J[129]-[130].
In the proceedings before Rothman J, the plaintiff also pursued various forms of relief by way of notice of motion filed 28 September 2022. That notice of motion, which sought 15 orders, was dismissed by Rothman J. More specifically, the orders sought and their disposition were as follows: 1. First, in relation to prayers 1-9 of the notice of motion, Rothman J made the following finding (J[41]): Prayers 1 to 9 of the Motion lie squarely within the ambit of the Vexatious Orders made by Pembroke J. On that basis alone those parts of the Motion should be dismissed by the Court, pursuant to s 13 of the Vexatious Proceedings Act. Further, I am also satisfied that those prayers relate to matters which have been conclusively and finally determined already in this Court (including the Court of Appeal) and courts below. 1. Secondly, in relation to prayers 10 and 11 (which sought orders for production of a range of documents from an accountancy firm), amongst a range of reasons given for refusing to make orders as sought by the plaintiff, Rothman J noted that the plaintiff had earlier been engaged in separate litigation involving that firm, and those proceedings had been dismissed on the grounds that it was an abuse of process and vexatious: J[51]. Rothman J held that the documents sought "while, arguably, relevant to those dismissed proceedings, are being sought, it is clear, for an ulterior purpose and are an abuse of process": J[51]. 2. Thirdly, in connection with prayers 12-15, these orders were characterised by Rothman J "as a vehicle to seek further primary relief from the Court in addition to the relief sought in the Statement of Claim": J[37]. Rothman J dismissed those claims for relief as it was "more appropriate to deal with those claims in the context of the plaintiff's Statement of Claim": J[38].

The rule and principles

The defendant, as earlier noted, specifically relied upon r 13.4(1) of the UCPR. That rule provides: 13.4 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.
A purpose of r 13.4 is to "save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings" and to protect "the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications": Ugur v Attorney General for New South Wales [2019] NSWCA 86 at [70].

Discussion and consideration

The defendant's principal argument is that a summons seeking judicial review of the decision of Rothman J is misconceived because there cannot be judicial review of a decision of a judge of the Supreme Court acting in their capacity as such: Penson v Titan National Pty Ltd [2015] NSWCA 404 at [8]-10; Choi v Secretary, Department of Justice and Communities (2022) 405 ALR 714; [2022] NSWCA 170 at [214] ('Choi'). The prohibition was explained in Penson at [8]-[10] as follows: Section 69 of the Supreme Court Act provides for a procedure that replaces the prerogative writs for which the common law provided. Those writs did not lie against a superior court: The Queen v The Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1953] HCA 60; 89 CLR 636. A judge of the Supreme Court has no power to direct an order in the nature of prohibition against another judge of the same Court: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 at [36]; Barton v Walker [1979] 2 NSWLR 740. Nor is there power to make an order in the nature of certiorari, as sought by Ms Penson in Order 5 of her application. Section 69 has not altered that position. The orders of judges of the Supreme Court, including of the Court of Appeal, are not amenable to review under s 69. Ms Penson's application in this respect is misconceived and should be dismissed. Apparently in recognition of the absence of any power in this Court to review the judicial decisions of Ward and Leeming JJA, Ms Penson sought to characterise the judgments as administrative, rather than judicial. Even if this characterisation were correct, s 69 would not be available to permit review: R v Wright; Ex parte Waterside Workers' Federation of Australia [1955] HCA 35; 93 CLR 528 at 541; and see the commentary to s 69 in LexisNexis Butterworths, Ritchie's Uniform Civil Procedure NSW, vol 2, 2005. In any event, the decisions are clearly judicial, the first being the refusal of leave to appeal. Such a decision involves, among other things, an evaluation of the prospects of success of the proposed appeal. The second decision, refusal of leave to reopen the earlier decision, also involved the exercise of a judicial function.
The orders made by Rothman J, therefore, are not amenable to review under s 69 of the Supreme Court Act 1970 (NSW). In those circumstances, the proper order is that any proceeding seeking such relief should be dismissed as frivolous and vexatious and an abuse of process: Choi at [228]; Pi v Zhou [2016] NSWCA 24 at [9]-[11]. That involves rr 13.4(1)(a) and (c) of the UCPR.
Given the finding made by Rothman J about prayers 1-9 of the notice of motion filed 28 September 2022 (at J [41], referred to in [26(1)], above), that conclusion applies equally to order 2 sought in the plaintiff's summons. I will explain briefly why that follows.
The defendant's submission was that the contravention of those orders was as follows: 1. In relation to prayers 4 and 5: the plaintiff's notice of motion sought to set aside "judgment/orders delivered by the NSW Supreme Court" on 13 September 2013 and 11 August 2014. From the notice of motion, the "judgment/orders" were made on those occasions in matter number 2009/290598. The defendant submitted that moving to have such orders set aside was prohibited by order 2(c) of the orders made on 25 May 2017 - namely: (2) Order pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 that Vitomir Zepinic, also known as Vito Zepinic, is prohibited from instituting proceedings in New South Wales: … (c) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2009/290598; 1. In relation to prayer 7: the plaintiff's notice of motion sought orders in connection with the certificate of title of the property formerly owned by the plaintiff and his wife. The defendant submitted that moving to have such an order made was prohibited by order 2(g) of the orders made on 25 May 2017 - namely: (2) Order pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 that Vitomir Zepinic, also known as Vito Zepinic, is prohibited from instituting proceedings in New South Wales: … (g) relating to the property known as 34 Turramurra Avenue, Turramurra, New South Wales, being the land comprised in folio A/348843, including, but not limited to, the sale of that property completed in or about December 2014. 1. In relation to prayer 8: the plaintiff's notice of motion sought an order that would "invalidate" the invoice issued on 16 November 2016 from the Court to the plaintiff and his wife as fees for the hearing of proceedings matter number 2016/97515. The defendant submitted that moving to have such an order made was prohibited by order 2(e) of the orders made on 25 May 2017 - namely: (2) Order pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 that Vitomir Zepinic, also known as Vito Zepinic, is prohibited from instituting proceedings in New South Wales: … (e) relating to or arising out of the subject matter of Supreme Court of New South Wales proceeding 2016/97515; 1. In relation to prayer 9: the plaintiff's notice of motion sought an order that "invalidate judgment/orders delivered" on 25 May 2017 (in proceedings number 2016/97515 and proceedings 2009/290598). The defendant submitted that moving to have such orders made was prohibited by orders 2(c) and (e) of the orders made on 25 May 2017 (which have been earlier set out).
These submissions are plainly correct. As I have already noted, Rothman J made a finding that prayers 1-9 of the plaintiff's notice of motion filed 28 September 2022 "lie squarely within the ambit" of the vexatious litigant orders made on 25 May 2017 leading to an order that the claims for relief be dismissed: J[41], [47].
The defendant, as a third way of putting the application, initially moved for orders under s 13 of the Vexatious Proceedings Act. However, Ms Holcombe indicated that orders of those kind were no longer pursued.

Orders

For the above reasons, I make the following orders: 1. Order, pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the summons filed 5 October 2023 be dismissed. 2. Order the plaintiff to pay the defendant's costs of and incidental to the notice of motion filed 7 November 2023. 3. Order the plaintiff to pay the defendant's costs of the proceedings.

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: 10 April 2024

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