This litigation commenced in the Small Claims Division of the Local Court of New South Wales. The plaintiff and defendant, who had been involved in a friendship/relationship of some kind, were in dispute as to whether an advance of a sum of $10,000 in June 2021 made by the plaintiff to defendant was by way of loan or by gift. The plaintiff sought to recover that sum of money from the defendant; along with some books he says he loaned to the defendant. After a hearing that was drawn out over several days, on 5 June 2023, an Assessor of the Small Claims Division of the Local Court delivered a decision in the defendant's favour.
On 26 June 2023, the plaintiff filed a Summons in this Court through which he appealed the Assessor's decision. The hearing of that appeal occurred on 11 October 2023 (with the plaintiff representing himself) and two days later her Honour Judge Gibson dismissed the appeal. Her Honour's reasons were published on Caselaw (Zepinic v Mitrovic [2023] NSWDC 423).
On 23 October 2023, the plaintiff filed a Notice of Motion. It was filed without the assistance of a legal practitioner. Under the title 'Grounds for Appeal', there are 27 'facts' that are stated. These generally comprised an amalgam of factual allegations pertaining to his dispute with the defendant agitated in the Local Court and submissions. Some raised procedural matters concerning the conduct of the proceeding in the District Court. This was illustrated by some of the 'facts' which appeared in the Notice of Motion as follows (including emphasised portions but excluding, for present purposes some footnoted references):
"The motion is filed pursuant to r 36.16(3A) of the UCPR 2005.
The plaintiff appeals from the whole of the decision delivered on 13th October 2023.
The plaintiff's appeal is based on the following facts:
1. In the judgment delivered on 13th October 2023 at 10:00am in Order 1 her Honour (Gibson DCJ) delivered:
"Pursuant to UCPR rr 6.1 and 6.10, grant leave to the defendant to file a Notice of Appearances by 5pm on Friday 13 October 2023."
This amendment to rule 6.10 of the UCPR made by Gibson DCJ is based in judgment [at 28]: "Ms Thornton (representing defendant) drew my attention to the opening words of UCPR r 6.1, which are "except by leave of the court" which means that the leave of the court could be granted at any time, in appropriate circumstances".
However, her Honour should read r 6.1 of UCPR 2005 entirely which provides: "Except by leave of the court, a party may not take any step in the proceedings (including any appearance in the court) unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings".
The statutory requirement is crystal clear: not any step in the proceedings (including appearance in the court) could be without obtained leave of the court. The leave of the court to file a Notice of appearances should not be given after a final judgment has formally been entered.
The Court has no power to disobey, amend, or repeal the statute. The main principles of the procedural fairness in any court (either low or higher) are not to breach or abuse its jurisdiction and to strictly obey the legislation.
…….
3. The plaintiff also states that the defendant did not make (to file and serve) any pleadings in the District Court of NSW related to the matter being before Gibson DCJ.
4. Further, the defendant had not been compliant with the Judicial Registrar's orders delivered on 10th August 2023.
5. The legal proceedings between plaintiff and defendant commenced in the Local Court Sutherland by filed plaintiff's Statement of Claim of April 2022. Pursuant to r 10.1((2) of the UCPR 2005, the plaintiff paid service fee to the Court to serve filed documents on defendant. However the defendant field Defence on 21st of June 2022, what was in breach of r 14.3(1) of UCPR 2005 ….
…….
It may be noted, at this stage, that on the face of this application, the underlined portion (which is mine, not Dr Zepinic's) evinced his position that the application he made about Gibson DCJ's orders was brought pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'). That provision stipulates:
"If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered."
The orders sought in the motion dated 23 October 2023 were as follows:
"1. Set aside judgment delivered by Gibson DCJ on 13th October 2023.
2. The respondent to return $10,000 from the plaintiff on 22nd June 2021, plus interest since the date of the borrowed money until date of decision of the District Court of NSW.
3. Order(s) regarding the defendant's defamatory statements given under the Oaths Act 1900 (NSW).
4. Defendant to pay the plaintiff's costs and disbursements of the proceedings.
5. Any other order(s) which the District Court of NSW deems fit."
These were substantially the same orders that were contained in the Summons that Gibson DCJ dismissed on 13 October 2023 (see paragraph 4 of her Honour's reasons).
As is apparent on the face of Dr Zepinic's notice of motion filed 23 October 2023, the motion was listed before this Court (made returnable) at 9:30am on 3 November 2023.
On 3 November 2023, I was the Civil List Judge for Sydney. When this matter was called, Dr Zepinic did not appear. Nor did Ms Mitrovic. It was not apparent, at this point, whether or not Ms Mitrovic had been served with Dr Zepinic's notice of motion filed on 23 October 2023 (hereafter 'the Applicant's 23 October 2023 motion'). At 10:39am that day, I arranged for my Associate to email the parties (Dr Zepinic personally and Ms Mitrovic's solicitor who appeared before Gibson DCJ and was presumed as continuing to act for her) and indicate that if there was no appearance later that afternoon at 2pm, the Notice of Motion would be dismissed with costs.
But the parties were thereafter informed by my Associate that the notice of motion (which was erroneously dated as 23 February 2023 and should have been 23 October 2023) was adjourned to 10 November 2023 and the message continued as follows: "Notice of adjournment be given to the plaintiff that the proceeding is to be adjourned to 10 November 2023 and in absence of attendance on his behalf, on that date, his notice of motion will be dismissed."
On 10 November 2023 (when still sitting as the List Judge), the Applicant's 23 October 2023 motion was returnable before me again. Again, Dr Zepinic did not appear. The matter was called outside the Court three times by the Court officer and there was still no appearance. Ms Mitrovic did not appear either. As foreshadowed in the warning that was given to the parties on 3 November 2023, I made the following orders:
"1. Pursuant to r 12.7 and/or 13.6 of the UCPR, the notice of motion (which had been described in notation 1) and the proceeding generally is dismissed with costs.
2. If the respondent to the motion (the defendant) wishes to contend for a different order to be made then it should do so by bringing an application within 14 days".
My purpose in making order 2 was to give Ms Mitrovic (who did not appear on 10 November 2023) opportunity to be heard in the improbable event that she might be dissatisfied, in some respect, with order 1.
On 17 November 2023, Dr Zepinic sent an email to my (then) Associate. It was in the following terms:
"I received your email regarding the above stated matter. Please be advised, that on 31 October 2023, I suffered massive heart attack and was admitted to Sutherland Hospital where I was provided PCI x 2 stents mid LAD before transferred to the Prince of Wales Hospital. On 7 November 2023, at the Prince of Wales Hospital, I received open heart bypass surgery CABG x 3. I was discharged from the Prince of Wales Hospital on 15 November 2023 (more details can be obtained from Dr B. Kuzmanovski, GP at Family Medical Clinic, 66/2-6 Market Street ROCKDALE NSW 2216, Tel: 9597 2111."
My interpretation of the content of this message is reflected in the following message that I arranged my (then) Associate to send to Dr Zepinic (and copied to Ms Mitrovic's solicitor) on 17 November 2023:
"It is inferred from the message that Mr Zepinic may wish to apply to set aside orders made by his Honour on 10 November 2023. If that inference is correct then Mr Zepinic will be required to file and serve a Notice of Motion. Upon that occurrence, his motion will be listed for mention and arrangements will be made by the List Judge for the hearing of such motion."
Nothing further was heard from Dr Zepinic until 6 December 2023. At 10:13am on that date, he sent an email to my (then) Associate. On its face, Ms Mitrovic's solicitor was not copied into the email.
Attached to the email was a 'notice of motion'. This had not been filed (contrary to what was indicated in my Associate's email of 17 November 2023). Be that as it may, this informal application was in the following terms:
"This motion is filed in accordance with the plaintiff's email sent to the Associate to his Honour Judge Abadee explaining why he was not able to attend directions held on 3rd and 10th November 2023 (annexure '1')
The Associate to his Honour Judge Abadee advised the plaintiff to file and serve a Notice of Motion regarding the above stated (annexure '2') (emphasis supplied)
The plaintiff seeks the following orders:
1. Orders sought in the plaintiff's Notice of Motion filed and served on 23rd October 2023."
I pause at this point to observe that the second paragraph is inaccurate, if it was intended to convey that (through my Associate) I was recommending that Dr Zepinic file a motion.
At any rate, attached to this informal application were (aside from correspondence to and from my Associate to the parties) certain documents from the South Eastern Sydney Local Health District which materially confirmed that Dr Zepinic was admitted to Prince of Wales Hospital on 3 November 2023 and discharged from that hospital on 14 (or 15) November 2023. A letter from Associate Professor P.W. Grant of the Department of Cardiothoracic Surgery of the Prince of Wales (Public) Hospital was also attached confirming a surgical procedure on 7 November 2023.
In Dr Zepinic's covering email to my Associate of 6 December 2023, he evinced his belief that the Court might make the orders he sought on the papers, but as an alternative, if it was necessary to have an appearance, he asked for an adjournment of at least two months.
Following my receipt of Dr Zepinic's informal application on 6 December 2023, the next day (7 December 2023) I arranged through my Acting Associate (at the time) to indicate the Court's intention to have the application determined in the February 2024 Parramatta civil sittings commencing on 12 February 2024. This was the first occasion in the 2024 that I would be sitting in the Court's civil jurisdiction and, although I was sitting in Parramatta, I invited the parties to appear in person or by Audio-Visual Link. I also made directions for the parties to exchange written submissions (which were expressed to be limited in the number of pages). Dr Zepinic was directed to file and serve his notice of motion.
In that email, I arranged for my Associate to indicate my perception that the proposed utility of the informal application was to enable Dr Zepinic to revive his motion of 23 October 2023, by which he sought to appeal the orders made on 13 October 2023. On that premise, the parties were invited to address the question whether Dr Zepinic was eliding the distinction between the power of a Judge of this Court to set aside another Judge's orders under r 36.16 with a power to conduct an appeal into the other Judge's decision and, if that was so, whether the Applicant's 23 October 2023 application was liable to be summarily dismissed. I will return to the significance of this below.
Dr Zepinic filed his motion on 14 December 2023.
When the matter was returnable before me on the first day of the February 2024 Parramatta civil sittings, there was no appearance by either party.
I arranged for my Associate to make inquiries of the parties as to the reasons for the non-attendance.
The respondent's solicitor informed my Associate that he understood that the applicant, Dr Zepinic, had passed away on 26 January 2024.
This leads to the procedural question of what should occur to the deceased's application.
By r 6.30(1) of the UCPR, where a plaintiff dies the proceeding does not 'abate' if the cause of action survives.
By reason of the judgment of the Local Court, whose effect was confirmed by Judge Gibson's dismissal of his appeal to this Court, there is a question arising whether his cause of action against the respondent could be said to survive and, if it does, what should now occur. Ordinarily, when judgment is given the cause of action has merged in the judgment. That judgment was then unsuccessfully appealed from to this Court and, at the time of death, there was only an application, which is exceptional in nature (having regard to the principle of finality) to consider whether it could be set aside on very limited grounds.
In February 2024, when presiding as the List Judge in the civil sittings in Parramatta, I adjourned the proceeding for a period of 3 months for the purpose of ascertaining whether an application was brought for the joinder of a party to replace Dr Zepinic.
That period has now passed. When the matter came before me today, no appearance was mentioned on behalf of the Estate (Mr Comonos appeared for the defendant).
No such application has been brought and it appears that the Court could dismiss the proceeding if, after a further period of time, no such application is brought (r 6.31). But it may be apposite to waive compliance with Court rules where, say, there is no utility in abiding by them.
That is so where, as here, the application can be dismissed on its merits, given that the deceased's application is so misconceived that no practical injustice would result if it was disposed of now and all that would be achieved was further delay and expense to the respondent to the application. Put another way, there is nothing that I can apprehend that an executor or representative of the late Dr Zepinic could say that could give rise to a reasonable possibility of a different result.
[2]
Dr Zepinic's application of 14 December 2023
Dr Zepinic's purpose in bringing his application was clear. He wished to revive or resurrect his application of 23 October 2023 for this Court's consideration and determination. By my orders on 10 November 2023, that application had been dismissed primarily for want of attendance, but also for a want of prosecution of the motion with due despatch.
This meant that Dr Zepinic would have had to persuade the Court to set aside the order for dismissal that the Court made on 10 November 2023.
Dr Zepinic did not actually file a notice of motion (until directed to do so on 7 December 2023) and his informal application was made after 14 days had lapsed from 10 November 2023. This did not comply with r 36.16(3A), a rule which, as indicated, Dr Zepinic evinced awareness or recognition about when he brought his 23 October 2023 application. But by r 36.16(2)(b), I am prepared to assume, for present purposes, that he has a free-standing right to apply to set aside the orders of 10 November 2023 without time stipulation, as they were made in his absence. As that sub-rule indicates on its face, it may be invoked whether or not the applicant had notice of the hearing.
Nevertheless, provisions like r 36.16 confer discretionary power upon the Court, and such discretion is to be exercised having regard to case-management considerations and, in particular, the objectives identified in ss 56(1), 57 and 59-60 of the Civil Procedure Act 2005 (NSW) (ss 58(1)(a)(iii) and 58(2)). Further, the discretionary power under r 36.16 is exercisable with reference to and harmoniously with other provisions in the Uniform Civil Procedure Rules. These include r 13.4, which empowers the Court to dismiss a proceeding on certain enumerated grounds, namely: (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.
Section 58 of the Civil Procedure Act also indicates that when deciding to make an order of a procedural nature, the court must seek to act in accordance with the 'dictates of justice'. Aside from mandatory (s 58(2)(a)) consideration of case-management objectives in ss 56 and 57, the court may also have regard to the non-exhaustive list of matters in s 58(2)(b)(i) to (vii) although as indicated, the list is not exhaustive.
Dr Zepinic offered a satisfactory explanation for him not attending Court on both 3 and 10 November 2023. But although that circumstance may be a necessary condition for setting aside orders made on the latter day, it was not sufficient for him to reach the destination he wishes to arrive at; namely, consideration and adjudication (in his favour) of his 'appeal' against Gibson DCJ's decision on 13 October 2023.
In particular, if the Court was to form the view that his self-described "appeal" against Gibson DCJ's decision had no reasonably arguable prospects, was frivolous or vexatious or amounted to an abuse of process, the Court would be empowered to decline to exercise its discretion to set aside the order for dismissal made on 10 November 2023. That was because there would no utility setting aside for dismissal of the Applicant's 23 October 2023 application on one basis (non-attendance at hearings) when it could have dismissed the application on another basis (that it meets the test for summary dismissal). Such a result would be consistent with ss 56 and 57 of the Civil Procedure Act: it would reflect the circumstance that the 'just' result was reached, albeit on a different basis. It would be quick, in obviating the prolongation of a hearing on a motion that was bound to fail in any event; and it would be cheaper, in curtailing further expense being incurred (especially by Ms Mitrovic) which may or may not be recoverable, depending upon Dr Zepinic's financial capacity to meet an adverse costs order.
As indicated, in my Associate's email of 7 December 2023, the Court invited the parties to address it on whether the Applicant's 23 October 2023 motion was liable to be dismissed under r 13.4 of the UCPR. If it was, it would be futile to set aside the order for dismissal made on 10 November as the same result (dismissal of the 23 October 2023) would arise for a different reason. All that would need to be done was to vary the wording of the order of 10 November to substitute rule 13.4 for the existing wording referring to rr 12.7 and 13.6.
Because of his indisposition and death, no submission was received in response from Dr Zepinic in response.
Having read the Applicant's 23 October 2023 application and having considered the material to support it, the Court has concluded that it would not have exercised the discretion to set aside the order for dismissal of that application. That is because even though it was set aside late last year on another basis (non-attendance) it would have been liable to be dismissed by the Court under r 13.4 of the UCPR.
In reaching that conclusion, I am conscious of the high bar (however it is expressed in language) in terms of satisfaction that must be reached before the Court takes the course of summarily dismissing a proceeding (or in this case motion): to the point of almost virtual certainty that the application will fail.
I have reached that state of certainty here.
Considering his 23 October 2023 application, it appears, in the way that it is framed, that Dr Zepinic believes that he can re-agitate factual matters raised and determined by Assessor Harvey. But as Gibson DCJ clearly and, with respect, correctly, appreciated Dr Zepinic's right to appeal from the Assessor's decision was confined by the limited terms of s 39(2) of the Local Court Act 2007 (NSW).
He cites certain procedural provisions which he implicitly contends were not complied with. He contends (without differentiation) that the decisions of Assessor Harvey and Gibson DCJ amounted to a failure to observe procedural fairness.
Dr Zepinic has no statutory right to appeal, in this Court (a court of limited statutory jurisdiction) the decision of another Judge in this Court. Moreover, he has no general right of appeal against Gibson DCJ's decision to dismiss his summons; still less does he have any right to appeal for errors regarding the application of procedural rules he has identified.
A party dissatisfied with Court orders cannot utilise the provisions of Part 36 of the UCPR as a mechanism for what is a de facto appeal. That would undercut the general principle of finality of judgments, unless and until corrected on appeal by a higher court. Dr Zepinic has not identified any of the customary bases for reopening that are available to him under provisions like r 36.16, which were recently restated by the Court of Appeal in Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd (No.2) [2024] NSWCA 13 at [5]. Two of those principles should be emphasised here.
First, the power conferred by UCPR, r 36.16 is to be exercised sparingly and with caution having regard to the importance of the finality of litigation, and does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them.
Secondly, and as was observed by Mason CJ in Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300 at 302-303:
"What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases".
Since the decision in Ranclose, in a later decision of the Court of Appeal, Mohareb v State of New South Wales (No.2) [2024] NSWCA 69, and with reference to r 36.16(3A), the Court reaffirmed the proposition that the discretionary power to re-open is directed to matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect [1] .
Dr Zepinic's remedy, if he had one, for asserted errors that infected the reasoning leading to the 13 October 2023 orders, rested in an appeal (presumably with leave) to the Supreme Court (and assigned to the Court of Appeal): District Court Act 1973 (NSW), s 127. There is no power in a Judge of this Court to review the decision of another.
The Court is in position to predict, with the requisite degree of virtual certainty, his appeal against Gibson DCJ's decision is bound to fail.
Regardless of whether or not any action of Dr Zepinic survives for the benefit of his Estate, it is therefore futile for the Court to exercise its discretion to set aside the order of 10 November 2023, which dismissed the Applicant's 23 October 2023 application. Although directed to a particular source of power (rules 12.7 and/or 13.6 of the UCPR), the order for dismissal would have been justified by another source of power (rule 13.4 of the UCPR). The effect of both orders is the same.
Dr Zepinic's notice of motion filed 14 December 2023 is dismissed with costs.
[3]
Endnote
citing State of New South Wales v Hollingsworth (No.2) [2023] NSWCA 283 at [20]
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Decision last updated: 08 May 2024
Parties
Applicant/Plaintiff:
Zepinic
Respondent/Defendant:
Mitrovic
Legislation Cited (6)
Supreme Court (and assigned to the Court of Appeal): District Court Act 1973(NSW)