Adamson v Chalik

The nature and background of these proceedings have been outlined in the judgment I delivered this morning, refusing the applicant/plaintiff's application to vacate and/or adjourn today's hearing: Adamson v Chalik [2026] NSWSC 414.

Before me today as Duty Judge is a notice of motion filed on 1 December 2025. It seeks orders under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that orders made by Sweeney J on 28 November 2025 should be set aside or varied. It also seeks an order that a costs assessment, which I understand has been completed some months ago, should be stayed pending the hearing of this motion.

As stated in my judgment earlier today, the applicant/plaintiff, who is a solicitor, failed for months to serve the notice of motion he had filed three days after her Honour's orders. He did not do so until he was ordered to by the Registrar of the Court. This is an obvious concern against a background of applications of this kind that are made pursuant to a rule which allows a kind of pre-emptory revisiting of orders made by another judge of the Court.

Rule 36.16 provides:

Subrule (3A) is in wide terms, apparently allowing a revisiting of a judgment or orders, simply if a notice of motion is filed within 14 days.

The Court, comprising Mitchelmore and Stern JJA and Basten AJA in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [17] provided important background to this rule:

The Court in Majak at [12] and [13] stated:

These statements provide important context to the exercise pursued by the applicant/plaintiff in his filing of the 1 December 2025 notice of motion.

The plaintiff’s failure to serve affidavit evidence in support, and failing to identify in the notice of motion what order or orders should be the subject of this power, underscores a fundamental problem with the application.

The plaintiff’s failure to comply with the Court's orders for submissions, and failing to provide some kind of substance behind the application can be viewed in a variety of ways. At the worst, it is suggestive that the filing three days after her Honour's judgment, was purely to avoid the consequences of her Honour’s orders or to hold the position, effectively, as a disgruntled litigant, hoping he can change the outcome. In that sense, it is an abuse of process to file the application in the first place. However, I do not make that conclusion at this stage, having not heard submissions from the plaintiff as he has deliberately absented himself from this hearing.

At best, it exhibits an intention, ongoing, to fail to comply with duties under s 56(3) of the Civil Procedure Act 2005 (NSW), noting, as I have already noted that the applicant/plaintiff is a solicitor of many years experience. That fact, frankly, makes the failures to comply with orders even more egregious.

I note in passing, and cross-reference this judgment to the judgment on the refusal to vacate and adjourn the motion today, the applicant has some medical conditions; but, as I said in that judgment, they are not sufficiently explained in the evidence put before the Court as a basis for the complete failure, from December 2025 to date, to properly prepare the application the plaintiff has filed.

The defendants oppose the orders sought. The first defendant provided written submissions for the assistance for the Court, and the fourth defendant did the same. The submissions provided by both defendants were filed in accordance with the timetable, despite the plaintiff's failure to provide his.

The fourth defendant submitted that there was a question mark over whether UCPR r 36.16 gives the Court power in the circumstances where really the correct procedure would be an appeal to the Court of Appeal.

In Mohareb v Palmer [2018] NSWCA 220, Beazley P and Macfarlan JA disagreed with this interpretation and held that the Court, provided an application is filed within 14 days, still needs to deal with the substance of the application.

A second aspect to the fourth defendant's submissions was that the motion is futile, given that the costs assessment has been finalised and so the process of assessment cannot be stayed. The submissions also noted the failures on the part of the applicant/plaintiff to comply with the Court's orders and that given he is a solicitor of many years experience, the Court may be concerned that the motion was simply one filed to circumvent the procedures of the Court. A request for indemnity costs was made on that basis.

The first defendant also noted the non-compliance with the Court's orders. He noted the fact that the orders sought by the plaintiff are potentially self-defeating, and that the affidavit sent on 24 March 2026 was devoid of substance, a conclusion with which I entirely agree. The first defendant made wider submissions that the whole proceedings should be dismissed. There were also some complex arguments made in respect of costs that I do not need to deal with immediately today.

The plaintiff appearing for himself and having had his notice of motion to vacate the hearing date refused, absented himself from the continued proceedings. He stated, with a tone of umbrage, that the Court had not listened to him, that he did not believe the Court had jurisdiction, that the Court was biased, that the Court had not referred to anything which assisted him, that the Court only listened to arguments that opposed him, that he was too ill to proceed, and that he could not attend Court. He stated that he is not “putting to one side his rights”. He stated that he was upset that the Court seems to, in effect, be thinking he is "putting on" his illness. He stated that he could not understand how a judge could form the view that he had coughed theatrically, (although I do note that the plaintiff did not cough during this part of his submissions to the Court), and that he knew “Judges like you” from this Court took a hardline in respect of any submissions made by solicitors to this Court and ignored them. He said that he was not well enough to proceed, and would not be proceeding to remain but would “take the matter to the High Court”. He then terminated his audio visual link to the Court.

I have determined, consistent with my obligations under the Civil Procedure Act ss 56 to 60, to proceed to hear this application despite the circumstances outlined.

Given the absence of any clarity in the notice of motion, or in anything that could be considered to be submissions, or in the completely unhelpful five-paragraph affidavit sent to the Court by the plaintiff out of time, there is nothing to support the orders sought. I accept the first and fourth defendants’ submissions that the application is largely futile. I harbour concerns that the application was filed as an abuse of process, or, at the very best to delay proceedings.

Having considered Sweeney J's reasons, I do not see anything in those reasons that remotely approaches a mistake of fact, or any other kind of mistake, that can be one that can call to aid UCPR r 36.16.

In all the circumstances, I dismiss the plaintiff's notice of motion.

In the normal course, costs follow the event; that is, the plaintiff has to pay the costs of the respondent parties. I note that the second and third defendants have filed a submitting appearance, save as to costs. Mr Allchurch, solicitor, appeared today as a courtesy. I excused him from further appearance as I knew the matter would take some time and I had formed the view that I would not deal with costs today given there may need to be some further material filed about that. I formed that view, in particular, given the first defendant's written submissions which seem to be about costs of the proceedings which, as I understand it, the second and third defendants may wish to respond to.

In all the circumstances, the usual order is made that costs follow the event, that is the plaintiff pay the costs of all of the defendants, subject to any further costs application any of the parties may wish to make.