Kostov v Commissioner of Police, NSW Police Force (No 3)

On 13 August 2019 the plaintiff was convicted in the Local Court of two offences of using a false email to obtain a financial advantage contrary to s 254(b)(ii) of the Crimes Act 1900 (NSW). By a summons filed on 20 February 2020 she sought leave to appeal pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) (CARA) against those convictions.

The summons was heard on 29 May 2020 by Adamson J. On 1 June 2020, Adamson J refused leave to appeal and otherwise dismissed the summons: Kostov v Commissioner of Police (No 2) [2020] NSWSC 679.

By a notice of motion filed 3 June 2020 the plaintiff seeks two orders as follows:

A document purporting to be an affidavit of the plaintiff was filed on 3 June 2020. I say that the document purports to be an affidavit because it is not attested as an affidavit. It is merely signed by the plaintiff. The document asserts that the orders made by Adamson J were made in the plaintiff’s absence, were made irregularly, and were not made in good faith. The plaintiff invokes clause 3 of the International Covenant on Civil and Political Rights 1966.

A number of matters are set out in the document which appear to be put forward as bases upon which the judgment of Adamson J should be set aside. First the plaintiff said that on 22 May 2020 she raised with Adamson J about obtaining a referral for pro bono assistance. She asserts that this application was ignored and led to her seeking an adjournment on the day of the hearing which was refused.

Secondly, the plaintiff referred to the fact that in other proceedings the Attorney-General had filed a notice of motion seeking a declaration that the plaintiff was a person under legal incapacity within the meaning of Part 7 Division 4 of the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff sought an adjournment so that she could obtain an opinion from the Attorney-General whether a person that he alleged was a person of legal incapacity should have been forced to conduct criminal proceedings (whether in the Local Court or the Supreme Court was not made clear) without Legal Aid. That application was refused by Adamson J.

Thirdly, the plaintiff had a relative who was in “final care” after suffering a serious illness, and the plaintiff was too upset to be able to conduct the hearing of her summons. That formed part of the basis for her seeking an adjournment of the hearing.

Fourthly, the plaintiff purported to raise a matter under s 78B of the Judiciary Act 1903 (Cth) which she wanted referred to the High Court before the hearing of her summons. This concerned the application of clause 3 of the International Covenant on Civil and Political Rights 1966, which concerns the right of a person to be present when tried and to have legal assistance. That application was refused by Adamson J.

Finally, and apparently in relation to the Attorney-General’s motion in the other proceedings, Adamson J did not address the issue of the plaintiff’s fitness to be tried when the proceedings were in the Local Court.

The plaintiff said that the orders were made irregularly and not in good faith because Adamson J held that s 196 of the Criminal Procedure Act 1986 (NSW) did not apply to the plaintiff’s case when the Magistrate had determined that it did.

The matter had been fixed for hearing on 29 May 2020 by the Registrar on 16 April 2020 when the plaintiff appeared before the Registrar.

The matter was heard by Adamson J via an audio-visual link and telephone. When the proceedings commenced at 11 o’clock the plaintiff had not connected to the link. She eventually connected via a telephone link at 11:12am. She apologised for being late, saying that a family member had just gone into palliative care and that she was on the phone to the hospital.

Her Honour explained to the plaintiff that she had been discussing with counsel for the defendant the matter of the plaintiff’s s 78B notice. However her Honour then said:

After a long opening statement by the plaintiff, her Honour explained that whatever grievance she had against the Attorney-General could not be ventilated in the proceedings before her Honour because he was not a party to those proceedings. Her Honour explained her obligations under s 78B of the Judiciary Act and asked the plaintiff to explain the basis for that notice. The plaintiff asked if she could have until the following Monday to provide her explanation but her Honour said that the matter had been fixed for that day and the proceedings had to go on. In the course of her Honour trying to ascertain from the plaintiff the basis for the s 78B notice, the following exchange occurred:

Thereafter the plaintiff addressed about the s 78B notice, and her Honour then proceeded to deliver an ex tempore judgment on the point: Kostov v Commissioner of Police [2020] NSWSC 678.

The transcript then discloses the following:

Her Honour then had an exchange with counsel for the defendant about how the matter should proceed. Her Honour ultimately decided to proceed, not on the basis that the plaintiff no longer appeared, but by determining the appeal on its merits based on the written submissions which had been filed by each party prior to the hearing. Her Honour reserved her decision and gave judgment on 1 June 2020.

The plaintiff’s notice of motion of 3 June 2020 was fixed for hearing before me on 21 August 2020. In the days leading up to 21 August 2020 the plaintiff sent a large number of emails to my associate. One of the emails attached documents the plaintiff said she had filed in the High Court to have the present proceedings removed into the High Court to deal with the s 78B matter and the application by the Attorney-General, referred to at [6] above.

Other emails variously attached a notice of Discontinuance of the present Notice of Motion, and a Consent Order to seek to list the Local Court proceedings so that an order could be made under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Another email indicated that Ms Kostov would not be appearing at the hearing of the present Notice of Motion.

When the matter was called on for hearing, Ms Kostov appeared by telephone and Mr Emmett of Counsel appeared in person for the defendant. In the light of the various emails, I enquired of Ms Kostov what she wanted to do in relation to the Notice of Motion. She first asked that I deal with an application for a referral for pro bono assistance. I declined to do so. The plaintiff is a vexatious litigant. An application for pro bono assistance is an interlocutory application within the meaning of “proceedings” in s 4 of the Vexatious Proceedings Act 2008 (NSW). The combined effect of ss 4, 5 and 13 of that Act means that the plaintiff would need to make an application under s 14 of the Act to seek a referral for pro bono assistance. Section 8(9) would not appear to provide any exception to that course.

If I am wrong in relation to s 8(9), the plaintiff had not filed any application for pro bono referral prior to the hearing of the notice of motion. She has prepared such a motion dated 23 June 2020 but has not filed it. She has simply attached it to various emails sent to my associate and others.

The plaintiff then sought an adjournment of the hearing of the motion so that she could obtain an opinion from the Attorney-General as set out in [6] above; so that she could get legal representation; and because she had filed the s 78B matter in the High Court. I declined to grant that adjournment for the following reasons.

The matter of the opinion from the Attorney-General related to the plaintiff’s s 78B matter which was raised by the plaintiff with Adamson J. That appears in the “Notice of Constitutional Matter” which the plaintiff said she had filed in the High Court. The issue was dealt with by her Honour at [24]-[25] of her judgment adversely to the plaintiff. I respectfully agree with her Honour’s reasons in that regard. I do not consider that there is any constitutional issue.

The plaintiff filed the present Notice of Motion without having legal representation. She was present when the Motion was fixed for hearing on 21 August by the Registrar on 30 June 2020. It does not appear from the record of proceedings before the Registrar that the plaintiff resisted the fixing for hearing of the Notice of Motion because she did not have legal representation. Apart from a statement by the plaintiff that she had tried to file a motion for a pro bono referral, there was no evidence of any attempts by the plaintiff to obtain legal representation.

On my refusal of an adjournment, the plaintiff said that she wished to proceed to have her Notice of Motion heard.

In her written submissions filed 31 July 2020 and 18 August 2020, the plaintiff merely repeated matters that were put to Adamson J and which appeared in the document entitled “Affidavit filed 1 June 2020”. Those matters related to the Attorney-General’s motion in other proceedings, to the plaintiff’s s 78B notice, and to her reliance on the International Covenant on Civil and Political Rights as a basis for pointing to her entitlement to legal representation which was not available to her when she was before the Magistrate.

In my opinion, the notice of motion is misconceived for a number of reasons. First, the Uniform Civil Procedure Rules 2005 (NSW) apply to civil proceedings, relevantly, in the Supreme Court. “Civil proceedings” is defined in s 3 of the Civil Procedure Act 2005 (NSW) as meaning any proceedings other than criminal proceedings. The definition of “criminal proceedings” in s 3 includes proceedings on an appeal against conviction or sentence. The present proceedings are an appeal under Part 5 of the CARA. Such proceedings are criminal proceedings: Sayer-Jones v Director of Public Prosecutions (No 2) [2019] NSWSC 1786 at [23]-[24].

Rule 1.5 UCPR says that the rules apply to each court referred to in Column 1 of Schedule 1 to the rules in relation to civil proceedings of a kind referred to in Column 2 of that Schedule. As far as the Supreme Court is concerned, the rules apply to all civil proceedings.

Part 36 UCPR has no application to criminal proceedings. When orders were made by Adamson J on 1 June 2020, such orders were final subject only to any right of appeal which the plaintiff might have.

Section 101 of the Supreme Court Act 1970 (NSW) provides that, subject to the Supreme Court Act and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from any judgment or order of the Court in a Division. However, s 101(2) provides that an appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from an order of the Court in a Division on an appeal under Part 5 of the CARA.

Accordingly, if the plaintiff wished to challenge the judgment of Adamson J, she needed to seek leave from the Court of Appeal to appeal to that Court. A judge in a Division of this Court has no power to review the judgment of Adamson J.

Secondly, if I am wrong, and r 36.16 is available to the plaintiff, I would, as a matter of discretion, refuse to make an order under that Rule. Rule 36.16 relevantly provides:

It should first be noted that sub-r (2) imports a discretion into the power given by the rule. Secondly, although the rule speaks about the judgment or order having been “given or made in the absence of a party”, the focus must be in relation to the hearing that led to the making of the judgment or order. That is highlighted by the current pandemic during which judgments are authorised to be delivered by being emailed to the parties and uploaded onto Caselaw. In no sense can a party be said to be present or absent when the judgment or order is given or made in those circumstances.

The transcript of the hearing before Adamson J discloses that the plaintiff appeared via a telephone link from 11:12am, after which time Adamson J recommenced hearing the matter afresh. Whilst her Honour delivered her ex tempore judgment in relation to the s 78B notice, the plaintiff disconnected the telephone link. The Court was adjourned and two emails were forwarded to the plaintiff asking her to dial back into the Court so that the matter could proceed. The second email warned her that if she did not do so the Court might make orders in her absence. Earlier during the hearing when the plaintiff threatened to terminate the telephone link, Adamson J warned her that if she did so her Honour could deal with the hearing in her absence.

In Northey v Bega Valley Shire Council [2012] NSWCA 28 Barrett JA had to consider the operation of r 36.16 in circumstances where the plaintiff was on notice of the hearing but did not appear. His Honour said this:

In the present matter, shortly before the associate to Adamson J sent the two emails to which I have made reference, the plaintiff forwarded an email to Adamson J’s Associate saying (inter alia):

There was no other evidence concerning the relative in palliative care or in what way that matter prevented the plaintiff remaining on the end of the telephone until the conclusion of the hearing.

The plaintiff voluntarily chose to disconnect from the hearing, in a not dissimilar way to her behaviour before the Magistrate where she left the courtroom for a period of time while prosecution witnesses gave their evidence. In those circumstances, there was no denial of procedural fairness to the plaintiff. Procedural fairness in this regard is concerned with giving a party an opportunity to be heard: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [60]. The plaintiff was not denied the opportunity to be heard; she chose to deprive herself of that opportunity. No basis is shown for the exercise of the discretion in r 36.16(2) in favour of the plaintiff.

Finally, if I am wrong in following Sayer-Jones, and the present proceedings are in fact civil proceedings, the plaintiff has contravened the order declaring her to be a vexatious litigant under the Vexatious Proceedings Act. She did not, before commencing either the present proceedings or filing the notice of motion with which I am dealing, follow the procedure set out in Part 3 of the Act. In those circumstances s 13 relevantly provides:

In answer to a question from me, the plaintiff said that she did not pursue prayer 2 in the Notice of Motion because she has filed proceedings in the High Court concerning the s 78B matter. After I had reserved my decision and returned to chambers, the plaintiff sent three emails to my associate, one with an attached Notice of Motion. The emails requested me to stay my judgment until the “Removal Application to the High Court” is heard. The attached Notice of Motion sought an order to that effect.

Quite apart from the irregularity of the plaintiff’s actions, there is no basis for any stay of my judgment. No matter what the outcome of the proceedings in the High Court (if that is what is meant by the plaintiff’s reference to a “Removal Application”), it could not alter the fact that the present Notice of Motion is misconceived. At best for the plaintiff, the proceedings in the High Court may have some effect on the judgment of Adamson J, but they could have no effect on this present judgment. Any rights determined against the plaintiff came about as the result of the dismissal of the plaintiff’s appeal by Adamson J. Since this judgment does not affect those rights, and since I have determined that the Court has no power under r 36.16 UCPR to review the judgment of Adamson J, there is nothing to stay.

The defendant seeks costs of the present Notice of Motion. A successful prosecutor is entitled to costs where an appeal is brought under Part 5 of the CARA: Sayer-Jones at [25]-[27]; Cunningham v Cunningham (No 2) [2012] NSWSC 954. Failing agreement, assessment is not available under Part 6 of the Legal Profession Uniform Law Application Regulation 2015 (NSW), but a lump-sum order may be made: Turner v Wheeler (No 2) [2016] NSWSC 431.

The plaintiff resisted a costs order on two bases. First, she said that if she had known the proper procedure she would not have filed the present Notice of Motion. Secondly, she said that she had been made bankrupt in 2018, and the probability of any costs being paid was minimal.

It is not a defence to a costs order for a litigant, even a litigant acting for themselves, to say that they were not aware of the correct procedure if the course they took was not the correct one. Nor is the fact that a party is impecunious a reason not to make an otherwise appropriate costs order: Northern Territory v Sangare (2019) 265 CLR 164 at [p32] and [34].

The orders I make are as follows: