Kostov v State of New South Wales (No 3)

BELL P: There came before me this morning a notice of motion filed on behalf of the Attorney General for New South Wales, the second respondent in Court of Appeal proceedings 2019/2669. That was a notice of motion which sought orders that the appellant, Adriana Kostov, submit to a medical examination pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in circumstances where, in another notice of motion in the Court of Appeal proceedings, the Attorney seeks to have a tutor appointed.

On Friday, 26 July, solicitors acting for the first and second respondents in these proceedings sought to serve the appellant with an amended notice of motion dated 26 July 2019, an affidavit of John Kenneth McDonnell affirmed 26 July 2019, an affidavit of Amanda Rose Sapienza sworn 26 July 2019 together with a five-page set of written submissions headed "Attorney General's submissions concerning r 33.13 application".

By communication with the Court, the appellant requested that she be permitted to appear at this morning's hearing by telephone. That request was acceded to and the matter was called on for hearing.

I enquired of Ms Kostov whether she had received the amended notice of motion, the two affidavits and the set of submissions to which I have earlier referred. She indicated that she had not. Solicitors for the first and second respondents indicated an email address to which those documents had been sent. Although it was not entirely clear from her intervention, Ms Kostov said that she had blocked the receipt of emails from the email address of the solicitor for the Crown who had sent those emails. I indicated that that was not satisfactory from the Court's point of view and reminded Ms Kostov that she is the moving party in the proceedings in the Court of Appeal and that it was not appropriate for her unilaterally to nominate from which email account representatives of the first and second respondents were to send court documents and communicate with her.

I reminded Ms Kostov of the importance of having a proper address for service of documents. I did so in light of her indication that the physical address she had previously provided in these appeal proceedings was no longer an address at which she worked or to which documents could appropriately be sent for the purposes of these proceedings.

It is a requirement of UCPR r 4.6 that a person wishing to change his or her address for service must do so by filing a notice of the change showing his or her new address for service and serving the notice on all other active parties. I indicated to Ms Kostov in the course of this morning's hearing that she would need to provide a physical address if the address previously provided was no longer applicable or appropriate. UCPR r 4.5 provides the requirements for a physical address at which documents in proceedings may be left during ordinary business hours.

In the course of preliminary matters, Ms Kostov engaged in what I will describe as a speech which will be recorded in the transcript of this morning's hearing, during which she covered a large number of matters. The transcript included the following statements by Ms Kostov:

What appears in the transcript may or may not be of relevance to the various interlocutory applications which are currently before the Court.

It is regrettable that Ms Kostov chose not to continue to participate in the hearing. The Court is endeavouring to deal with her appeal and it assists no one, least of all Ms Kostov, that she did not continue to participate in this morning's proceedings.

I return to the amended notice of motion. In that amended notice of motion, the respondents seek two orders, first an order that Ms Kostov submit to a medical examination and secondly, orders in relation to access to documents in proceedings in the Common Law Division, namely proceedings 2016/257819. I raised with counsel for the respondents the appropriate and logical sequence for the hearing of the applications relating to the medical examination and the provision of documents. In my opinion, not only logic but practicality dictates that prayers 4 and 5 of the amended notice of motion should be dealt with in advance of prayer 1. This is because prayers 4 and 5 (dealing with the document requests), if granted, may bear upon both the need for and the desirability of any order pursuant to prayer 1 dealing with the application for a medical examination.

I note that the respondents' five-page submission, which was served or sought to be served on Ms Kostov on 26 July is a submission in support of prayers 4 and 5 of the notice of motion. Those submissions indicate that the respondents rely upon Mr McDonnell's affidavit affirmed 26 July 2019 as the evidentiary basis for those orders.

In my opinion, the appropriate course is to direct that the solicitors for the respondents email the amended notice of motion, the affidavits of Mr McDonnell and Ms Sapienza and the submissions to Ms Kostov again, but from the Crown Solicitor's Office standard email account. In making this direction, I reiterate my earlier stated view that it was inappropriate for Ms Kostov unilaterally to block the emails of the solicitors with the carriage of this matter on behalf of the respondents. Such a course only obstructs, delays and complicates the orderly conduct of these proceedings in this Court. Ms Kostov did indicate, in the course of the short time that she appeared by telephone, that she would unblock the blocks on those personal email addresses, but whether or not she will do so remains to be seen.

I will also direct that the Registry send to Ms Kostov's email address the amended notice of motion, the two affidavits and the submissions, which will be stamped as filed pursuant to leave I will grant to file the amended notice of motion, affidavits and submissions in court. What I then consider appropriate is to direct Ms Kostov to respond in writing in a submission filed in the proper way in the Registry to the respondents' submissions and to make it clear in this judgment that the Court will only have regard to a submission so filed. The Court will not have regard to emails sent directly, either to my chambers or to the chambers of any other judge of the Court. Ms Kostov has a long history of communicating directly with judges’ chambers in that way, notwithstanding that she has been told on numerous occasions that that is inappropriate. I will not take or receive as submissions any documents so sent. There is a need for formality.

The submissions which I will direct Ms Kostov to file are also to be served on the Crown Solicitor and marked for the attention of Mr McDonnell and Ms Sapienza.

I will then allow the respondents a short time to respond to any submissions so filed and propose to give a decision in relation to prayers 4 and 5 of the amended notice of motion by reference to the written submissions filed and any evidence filed. I do not propose to conduct an oral hearing in relation to those aspects of the application.

Accordingly, I would make the following orders: