Tutoveanu v Velez (No 2)

By its Judgment delivered on 10 April 2025 in these proceedings, the Court dismissed the summons filed by the plaintiff (Mr Tutoveanu) and ordered him to pay the costs of the first defendant (Mr Velez) and the second defendant (The Greens NSW): Tutoveanu v Velez [2025] NSWSC 359. These reasons should be read, and assume familiarity, with the Judgment.

By a notice of motion dated 10 April 2025, Mr Tutoveanu seeks these orders:

The Court has dealt with the motion on the papers and without the need to call on the defendants. For the reasons set out below, the motion will be dismissed. Those reasons may be summarised as being that Mr Tutoveanu’s evidence and submissions disclose no basis to invoke the narrowly confined grounds set out in r 36.15(1). The matters he raises all go to the correctness of the Judgment itself, other than one issue which is an irrelevant matter of fact (assuming it to be correct). As I explained to Mr Tutoveanu, the correctness of the Judgment is to be challenged, if he wishes, by an appeal to the Court of Appeal.

Mr Tutoveanu appeared for himself and prepared his own submissions. At the first return date of the motion, the defendants were represented by Mr P Santucci of Counsel.

The Judgment was delivered on 10 April 2025. It dismissed Mr Tutoveanu’s challenge to the Greens NSW not having accepted his incomplete application to be considered for preselection as that party’s candidate for the Federal Electorate of Sydney in the (then impending) May 2025 federal election. Mr Tutoveanu appeared to have the motion with him in court, apparently prepared in advance of the outcome.

There was a delay in filing the motion. Some days later Mr Tutoveanu appeared in my court unannounced and, to bring matters to a head, I directed that the motion should be filed and made returnable before me on 23 May 2025.

At the return date on 23 May 2025:

Notwithstanding his confidence as to when he could provide his written submissions, Mr Tutoveanu sent this email to my Associate on 2 June 2025:

The “draft annotations” consisted of a copy of the Judgment with sections highlighted in red, green or yellow, but without an explanation of what the particular colour signified.

My Associate responded that day:

Later on the same day Mr Tutoveanu replied to my Associate including, “I’ll provide an update on the written submissions (ie formal legal proof) before tomorrow morning 8am. The present urgent concern the plaintiff has is leaving an apparently err’d [sic] judgment on the public register.” (Emphasis in original.)

On 3 June 2025, Mr Tutoveanu sent this email to my Associate:

His email attached what were described as “Plaintiff Submissions (Draft Outline)”. My Associate immediately responded:

On 3 June 2025, Mr Tutoveanu filed a “court book” in the registry with documents dated December 2024, including a statement of claim headed as being in the “Green Court of New South Wales, Social Equity and Economic Justice Division, Human Rights List” and which appeared to be a version of his claim that I determined in these proceedings. The material in the “court book” has no status and I have not taken it into consideration.

Late on 4 June 2025, Mr Tutoveanu emailed a document of that date entitled “Plaintiff Submissions” (Final Submissions). My Associate immediately emailed Mr Tutoveanu:

Mr Tutoveanu replied promptly by return, including:

I have read all of the different material provided by Mr Tutoveanu to which I have referred in the preceding paragraphs, but only to confirm what appears to be the case, namely that the Final Submission incorporate the substance of the earlier emails. Therefore, I have determined the motion by reference to the Final Submissions.

After an introduction and recitation of facts, the Final Submissions contain extracts from numerous Commonwealth and State pieces of legislation which, to varying extents, appear on their face relevant to issues in the proceedings. There is then an extensive exposition of authorities on the question of setting aside or varying judgments or how applications to reopen should be dealt with (including after delivery of judgment).

It is convenient then to set out in full Mr Tutoveanu’s submissions:

Division 4 of UCPR Part 36 is headed “Setting Aside and Variation of Judgments”. It contains rules 36.15 to 36.18. The scope and effect of those rules is, perhaps understandably, frequently misunderstood by litigants appearing without the benefit of legal assistance or legal training. It is therefore convenient at this point to set out the relevant legal principles.

While the rules in Division 4 must be applied according to their terms, that application is to be against the background of the fundamental principle of public policy in favour of upholding the finality of judgments. The Court’s essential constitutional duty is to quell the dispute presented by the parties. The parties are generally given one opportunity for that to be done by a contested hearing on the merits. A multiplicity of litigation is to be avoided. A party which has been given that one opportunity and is dissatisfied with the outcome has a right of appeal, either as of right or by leave depending on the nature of the decision. Subject only to the possible application of the inherent jurisdiction of the Court or another recognised basis at common law, a final judgment or order at first instance will only be set aside or varied if one of the narrow possibilities identified in Division 4 is able to be satisfied. The rules contained in Division 4 are not a “back door” means of advancing what should properly be an appeal on the merits.

Rule 36.15 provides:

The proper application of that rule was considered by the Court of Appeal in its judgment in Perpetual Trustees Australia Ltd v Heperu Pty Ltd & Others (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387:

I am bound by, and propose to apply those principles, with which I respectfully express my agreement.

Although specifically directed to r 36.16, these observations of the Court of Appeal in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 provide a salutary reminder that the rules in Division 4 must be applied in the light of the principle of finality of judgments:

The reference to “judgment” in r 36.15 does not mean the Court’s reasons, which again, somewhat confusingly, are referred to as a judgment. Those are the reasons why the Court is entering the judgment or making the order which is the subject of the rule. In this case, conformably with Perpetual, the “judgment or order of the court” which can be the subject of an application under r 36.15 is the orders that were made for the reasons set out at the conclusion of the Judgment, being:

Those orders were made and entered after a hearing on the merits at which the parties were represented (in Mr Tutoveanu’s case by himself) and fully heard. Rule 36.15 in those circumstances “can only have limited application” (see Perpetual in [23] above) and the question is whether those orders were “Given…. entered, or … made, irregularly, illegally or against good faith”.

In paragraph 62 of the Final Submissions (see [19] above), Mr Tutoveanu identifies “irregularities”. I have therefore assumed he submits that the various matters he has identified demonstrate that the orders referred to in [26] above were “entered, or … made” irregularly. Each paragraph of the Judgment identified by Mr Tutoveanu cross-references to his submission about it, such that the “irregularity” identified in paragraph [11] of the Judgment is amplified in the corresponding sub-paragraph of the Final Submissions (i.e. [11] and 62(a), [27] and 62(b) etc).

I have considered each of these “irregularities”. For the purposes of r 36.15 orders will have been made or entered “irregularly” if there has been a failure to comply with a requirement under the UCPR that had to be satisfied before judgment could be entered. In my respectful opinion, it is clear that none of the “irregularities” identified in the Final Submissions demonstrates that the entry or making of the Court’s orders at the end of the Judgment occurred irregularly in the requisite sense. No failure to comply with a procedural requirement under the UCPR is identified. The Court does not need to call upon the defendants to make submissions (beyond those they have already made – see [7(4)] above – and which the Court accepts having considered the Final Submissions) to be able to reach that conclusion.

The issue raised in sub-paragraph 62(a) of the Final Submissions is a factual matter of no apparent relevance assuming it to be correct. The issues in the balance of the sub-paragraphs appear to be legal submissions which go to the correctness of the Judgment and are therefore properly to be raised by an appeal. They do not impeach the regularity of the making or entry of the Court’s orders disposing of Mr Tutoveanu’s summons. Orders which may be the product of an incorrect legal analysis are not, by reason of that without more, irregularly made or entered for the purposes of r 36.15(1). That is even the case, for orders of a superior court of record such as this Court, if the order is affected by jurisdictional error: New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26.

The motion will be dismissed. I will make directions for short submissions from the parties if the defendants seek their costs.

The Court’s orders are: