[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: Mr Andre Zioukin moves on a summons filed on 31 January 2023 seeking leave to appeal from the judgment of the Supreme Court constituted by Basten AJ delivered on 21 June 2022 dismissing his amended summons seeking leave to appeal from the decision of the Appeal Panel of NCAT: Zioukin v Lang [2022] NSWSC 823. Leave to appeal to this Court is required because it is no longer suggested that there is an amount in issue of value exceeding $100,000, although Mr Zioukin originally filed a notice of appeal purporting to bring an appeal as of right. The consequence, relevantly for present purposes, is that there are two originating processes which have generated two files and two file numbers for this dispute. Proceeding 2022/208946 was commenced by the filing of a notice of appeal; proceeding 2023/32740 was commenced by the filing of a summons seeking leave to appeal.
Returning to the judgment from which leave is sought to appeal, Mr Zioukin did not attend the hearing, listed on 21 June 2022. He had applied, informally, the previous evening, to vacate that hearing. That application was rejected by Basten AJ. Basten AJ then addressed each of the 12 proposed grounds of appeal in the document supplied by Mr Zioukin in turn and concluded that none warranted a grant of leave. Leave was required because Mr Zioukin had already enjoyed a hearing in NCAT and an appeal to the Appeal Panel and a further appeal to the Supreme Court was available only by leave and is confined to questions of law: Civil and Administrative Tribunal Act 2013 (NSW), s 83.
Mr Zioukin attended the hearing in this Court on 13 March 2023. A few minutes before 10.15AM, he emailed to the Associate to Kirk JA a notice of motion and supporting affidavit. The notice of motion sought orders that it be heard "instanter", that various procedural directions be made which would have the effect of vacating the hearing of the summons seeking leave, as well as a challenge to the order for costs made by the Registrar on 12 December 2022.
However, despite the motion seeking an order that it be heard and determined instanter, Mr Zioukin maintained that he was not ready to proceed. In part his application was based on what was said to be his misunderstanding of what was listed on that day as described in the orders made by the Registrar, and in part he relied on the fact that the 2022 proceeding commenced by the notice of appeal was listed for Mention.
The orders made by the Registrar were as follows:
1. If a Summons for Leave with a Summary of Argument is not filed by 31 January 2023, the Notice of Appeal in these proceedings will be dismissed as incompetent with costs.
2. If a Summons for Leave is filed by 31 January 2023, the Notice is stood over for Mention on 13 March 2023 with the intention that it will be dismissed if Leave to Appeal is not granted.
3. On the filing of the Summons for Leave the Summons will be listed for a Leave only hearing on 13 March 2023.
4. Any response by the Respondent to be filed by 21 February 2023.
5. Appellant pay costs of today.
…
The orders were included at p 28 of the White Folder which was prepared (either by the Court or by Mr Zioukin, it is not clear which) in support of the hearing.
After rejecting the informal application to adjourn the notice of motion, we proceeded to hear the substance of the motion. We made orders dismissing the balance of the notice of motion at the conclusion of Mr Zioukin's submissions, without calling on the respondent, and indicated that we would give reasons for doing so in due course.
Mr Zioukin provided a summary of argument on 31 January 2023. The summary of argument said at its conclusion:
The filing of summons on 31 January 2023 is an originating process allowed by the last Court of appeal orders. It will be amended within 4 weeks as allowed under UCPR. This summary of argument will be amended with a few additions, with documents added to the white folder and a few grounds added to the draft notice of appeal.
The substance of the notice of motion, save for the challenge to the Registrar's order as to costs, was what had been contemplated in the submissions filed on 31 January 2023.
There was some evidence that Mr Zioukin had other matters taking up his time in February and early March 2023. He is now in dispute with the owner of the premises where he now lives, and it seems that proceedings have been commenced by him in NCAT. He has also attended a General Practitioner, who has advised that although "he is feeling better at present and is able to focus better on his studies" that he still requires "reasonable adjustments". The practitioner supported an "adjustment of extra time of two days for every three days (as additional time to prepare his submissions and evidence) and longer notice of hearing dates".
Mr Zioukin also said that he had been in dispute with the respondent as to whether he was entitled to file an amended notice of appeal, and supplementary material and submissions in support of his application for leave. The details of that dispute did not appear from the material before us.
We proceed on the basis that Mr Zioukin suffers from a variety of physical and mental disabilities. He is conscious of what he maintains are his entitlements under the Disability Discrimination Act 1992 (Cth). The difficulty with the notice of motion is that (a) Mr Zioukin has known for three months that, in the event that he filed a summons seeking leave to appeal, it would be listed for hearing on 13 March 2023 and (b) there is still nothing clearly indicating the nature of the extra grounds, let alone the submissions on which he seeks to rely. There are limits to the extent which accommodation may be given to ameliorate Mr Zioukin's disabilities, and the Court must also be conscious of the burdens upon the parties against whom he has commenced proceedings.
We are also conscious that, as was pointed out to Mr Zioukin during the hearing, he has repeatedly sought adjournments and vacations of hearing dates in proceedings commenced by him. The primary judge observed that Mr Zioukin had applied for adjournments a fortnight earlier, and in the District Court a couple of months earlier, on the basis of his health, and added at [22]:
The consistent seeking of adjournment of proceedings for health problems imposes a significant burden on the individual respondent, who has been a party to these proceedings involving her former tenant, in NCAT, and in this Court.
In those circumstances, there was no proper basis for acceding to Mr Zioukin's motion and vacating the hearing. There is nothing to suggest that any adjournment would result in any different submissions or evidence from Mr Zioukin. As it was, Mr Zioukin enjoyed, in substance, benefit of a substantial oral hearing, including significantly more than the ordinary time that would be allowed for the presentation of submissions in support of his summons. There was one document to which he referred, which he did not have to hand, which was an application for adjustments which was said to have been made to the Common Law Division in respect of the appeal heard by Basten AJ. However, we proceeded on that basis, favourably to him, that Basten AJ had been asked to do so.
One paragraph of the notice of motion sought to set aside the costs order made against Mr Zioukin by the Registrar. No meaningful submissions were made in support of that paragraph, although Mr Zioukin was directed to it. For the reasons which follow, nothing turns on it, for even if the order were set aside, with the result that costs were costs in the cause, the same result would obtain.
We turn to the merits of the application for leave to appeal. It is quite plain that Mr Zioukin, who seems at all times to have acted for himself, does not advance any proposition of principle or general importance. He regards his eviction as having been oppressive but that does not make his dispute one of general importance. Only if there is some injustice which is more than arguable would there be a basis for granting leave.
Proposed ground 1 asserts an error by the primary judge in failing to correct an error of law of the Appeal Panel which is said to have failed to have given adequate reasons for its decision. This ground lacks substance. As Basten AJ said, the Appeal Panel addressed in turn all 22 of Mr Zioukin's grounds.
Proposed ground 2 concerns ground 1 of the proposed appeal from NCAT which was addressed by Basten AJ at [25]. The ground makes little sense. The paragraph of the judgment is relevantly as follows:
Ground 1 related to personal circumstances said to have disrupted the plaintiff's preparation for the hearing before the Appeal Panel, as a result of an interlocutory order of NCAT permitting access to the premises by the landlord's agent. That order was made on 17 November 2021. It could only support a claim of procedural unfairness if there were some evidence of disruption. It would only form a ground of appeal to this Court if the matter had been raised in those terms before the Appeal Panel. There is no evidence that that was the case. There is no evidence before this Court that there was any affidavit or supporting material alleging, let alone establishing, disruption.
Proposed ground 2 maintains that Basten AJ erred in relation to the interlocutory order, which was made by the Appeal Panel and from which an appeal lay to the Supreme Court. But the proposed ground does not address the essential reasoning of Basten JA, which was that there was no evidence of any disruption, without which the ground would fail.
Proposed ground 3 is a claim that Mr Zioukin was not given an opportunity to provide written submissions due to difficulties with the Appeal Panel transcript and his medical condition. Basten AJ addressed in detail the belated, informal application to vacate the hearing, and the deficiencies of the evidence on which Mr Zioukin relied, doing so on the basis of his Honour's assessment of Mr Zioukin at an earlier hearing. There is nothing to suggest that his Honour was not conscious of the disabilities from which Mr Zioukin suffers. This ground does not warrant a grant of leave.
Proposed grounds 4 and 5 reiterate grounds 9 and 12 of the summons which was before Basten AJ. The summons was not included in the White Folder, however, Basten AJ addressed these grounds as follows at [31]-[32]:
Ground 9 asserted that NCAT had acted without evidence and that the Appeal Panel failed to identify this error. The critical issue in the Tribunal turned on the plaintiff's allegation of retaliatory conduct, a matter on which he needed evidence. There can be no error of law in relying on an absence of evidence in a matter with respect to which the tenant bears the onus of proof. Ground 9 is not reasonably arguable.
Ground 12 asserted that an error as to a date which was given in the Appeal Panel decision constituted a jurisdictional error. The claim was patently misconceived. The misstated date appeared in the summary of the grounds of the appeal before it given by the Appeal Panel. The Appeal Panel dismissed the relevant ground as raising a factual error. Because it raised merely a factual question there can be no relevance to the fact that there was an error (which, on its face, is likely to be a typographical error in any event) in the statement of the date relevant to the period during which the retaliatory conduct was said to have occurred.
Nothing in the proposed grounds, which are difficult to understand, suggests that there is any sound basis for a grant of leave. A very brief summary of argument, dated 31 January 2023, was provided, but that document, aside from complaining of what is said to have been his oppressive eviction, does not identify error on behalf of the Appeal Panel or, which is relevant, Basten AJ.
During his oral submissions, Mr Zioukin proposed a further proposed ground of appeal, as follows:
LEEMING JA: Speak onto the record so you can tell us what the ground is that you wanted.
APPLICANT: It was an error of law that and there was … the appellant wasn't given opportunity to put his case together which ah, resulted in, ah, procedural injustice and the … monetary consideration and then, um, in the discretion, that should have been exercised, and basically, basically, that the Supreme Court should follow their law on, on, um, on, um, um, disability discrimination. It's of importance - it's a question of important public importance. There is no decision in that. So it's important to argue it on the appeal and the Notice of Appeal, if leave to appeal is granted.
That does not advance Mr Zioukin's position. At the end of his oral submissions, Mr Zioukin also directed us to Zioukin v Lang [2022] NSWCATAP 327. Nothing in that decision assists his application for leave to appeal.
No basis for a grant of leave has been made out. The summons filed 31 January 2023 should be dismissed. As contemplated by the orders made by the Registrar last year, the notice of appeal should be dismissed as incompetent. In each case, Mr Zioukin must pay the respondent's costs.
[3]
Amendments
17 March 2023 - Change in headnote correcting "Disability Discrimination Act 1975 (Cth) to "Disability Discrimination Act 1992 (Cth)"
[4]
Change to [12] correcting "Disability Discrimination Act 1975 (Cth) to "Disability Discrimination Act 1992 (Cth)"
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Decision last updated: 17 March 2023