Kostov v State of New South Wales

HER HONOUR: Ms Adriana Kostov has applied for leave to appeal against an order under the Vexatious Proceedings Act 2008 (NSW) made by Fagan J on 19 November 2018. The applicant filed her summons seeking leave to appeal on 3 January 2019. No notice of intention to appeal having been filed, the application is accordingly out of time: r 51.10(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW). However, the respondent has indicated that an extension of time will not be opposed.

The matter has been referred to me this morning by the Registrar to hear the applicant’s notice of motion filed on 9 January 2019 seeking an order in the following terms: “Name be removed (however orders remain in place) from public vexatious litigants register until appeal is heard”.

The relief sought refers to a register required to be maintained by the Registrar under s 11(2) of the Vexatious Proceedings Act. Section 11 provides:

The powers that may be exercised by a Judge of Appeal sitting alone are set out in s 46 of the Supreme Court Act 1970 (NSW). Section 46(2)(b) provides that a Judge of Appeal may exercise the powers of the Court of Appeal “to make any order or give any direction in any appeal” other than an order or direction involving the determination or decision of the appeal. The powers that may be exercised under that section would include power to grant a stay of the order under appeal. However, that is not the order sought; the effect of the order (if made) would be to require the Registrar to do something that would amount to a failure to comply with the statute. I do not think I have authority under s 46 or otherwise to make such an order. Accordingly, the relief sought by the applicant today must be refused.

It is appropriate to record some matters relevant to the future conduct of the proceedings. The order against which leave is sought to appeal was made not on the application of the respondent (the State of New South Wales) but on the Court’s own motion. In that circumstance, the Attorney General for New South Wales has this morning filed a notice of motion seeking leave to intervene in the proceedings pursuant to s 23 of the Supreme Court Act. The notice of motion was served only on Friday afternoon and Mr Birch, who appears both for the State (as respondent to the application for leave to appeal) and for the Attorney General (as applicant on the notice of motion), properly acknowledges that Ms Kostov should have an opportunity to prepare to meet it.

The Attorney General’s motion also seeks review of suppression or non-publication orders made in any proceedings brought by Ms Kostov in the Supreme Court of New South Wales. The circumstances in which that order is sought may be summarised as follows. Ms Kostov has, indeed, brought a number of proceedings in the Supreme Court. In some of those proceedings, on her application, non-publication orders have been made concerning information personal to her. Since the orders were made without qualification, the result is that the Attorney General is unable to review all of the relevant judgments for the purpose of considering whether to bring an application against Ms Kostov under the Vexatious Proceedings Act. The Attorney General’s desire to undertake such a review was overtaken by the event of Fagan J forming a preliminary view that an order should be made against Ms Kostov under the Act and, of the Court’s own motion, making that order on 19 November 2018. That is the order the subject of the present application for leave to appeal.

Now that Ms Kostov has sought leave to appeal against his Honour’s order, the Attorney General seeks leave to intervene or, alternatively, to participate in the proceedings as amicus curiae. To that end, he seeks to renew his application for variation of the suppression or non-publication orders to the extent necessary to permit him to review all of the relevant judgments for the purpose of the appeal.

I have indicated to the parties this morning that it may be appropriate for that aspect of the Attorney General’s notice of motion to be determined by a bench of three. I could alternatively transfer that part of the application to the Common Law Division and determine it myself sitting as a judge of that Division but the former course would give a more authoritative answer to the question and is preferable for that reason.

In any event, as I have already indicated, Ms Kostov needs time to prepare for each of those applications. In the circumstances, I propose to stand the Attorney General’s notice of motion over to 9.30 next Thursday 21 February 2019 for determination of at least the application for leave to intervene. In the event that the non-publication orders can be addressed at the same time, the parties will be informed promptly.

It is appropriate to record a number of further aspects of the application. Ms Kostov’s summons invokes s 9 of the Vexatious Proceedings Act which confers power to vary or set aside an order made under the Act. The view has been expressed by Basten JA that an appeal against a vexatious proceedings order arguably falls within that section and so does not raise a separate requirement for leave: see Viavettene v Attorney General of New South Wales [2014] NSWCA 218 at [2]. An alternative analysis is that the institution of appeal proceedings in this Court against a vexatious proceedings order is the institution of a proceeding that requires leave in accordance with s 14 of the Vexatious Proceedings Act. However, it has been assumed in other cases that leave is not required under s 14 for the institution of a proceeding which is an appeal against the very order prohibiting the institution of proceedings without leave: see Klewer v Attorney General of New South Wales [2010] NSWCA 219 at [27]; and see Potier v Attorney General of New South Wales [2014] NSWCA 256 at [2].

In Viavettene, noting that it is otiose to have two requirements for leave, Basten JA resolved that issue by making an order, to the extent that s 14 was engaged, waiving the requirement under s 14(3) (which is relatively onerous) for the applicant to file an affidavit and granting leave under s 14.

In summary, the authorities to which I have referred indicate that the approach in this Court has been that an applicant for leave to appeal against a vexatious proceedings order either does not require leave under s 14 of the Vexatious Proceedings Act or should have it for the asking. It is convenient to proceed, as has occurred in other cases, on the assumption that leave under s 14 is not required. The applicant still requires leave to appeal under s 101 of the Supreme Court Act. She has not sought such leave in terms but her summons acknowledges that this is an appeal which requires leave.

For the applicant’s benefit, I emphasise that I am not deciding the question of leave today: see s 46(3) of the Supreme Court Act. I have simply recorded these matters for the future purposes of the application.

Finally, I note that Ms Kostov seeks a separate hearing of the application for leave and it has been determined that there should be a separate hearing for that reason. I raised with Ms Kostov today the prospect of a concurrent hearing, which would enable the Court to finalise the proceedings earlier, but she maintained her position in seeking a separate hearing of the application for leave. Accordingly, the Court will proceed on that basis.

For those reasons, the applicant’s notice of motion dated 9 January 2019 is dismissed.

[Note: after the hearing, on the application of Ms Kostov, the proposed hearing on 21 February 2019 was vacated. The Attorney-General’s notice of Motion and the application for leave to appeal are now both listed for hearing on 27 March 2019.]