Stanizzo v Fregnan

1. [1]

   These proceedings concern an action by the Vincent Francis Stanizzo (“the plaintiff” or “Mr Stanizzo”) by Notice of Motion filed on 29 October 2020 (“the plaintiff’s motion”). The plaintiff’s motion sought a declaration in relation to costs incidental to the Summons in these proceedings, up to and including the hearing before Latham J and the orders made on 8 March 2018.

2. [2]

   The matter also concerns the action by Karina Vivianna Fregnan (“the defendant” or “Ms Fregnan”) by notice of motion filed on 15 February 2021, seeking to dismiss the plaintiff’s motion (“the defendant’s motion”).

3. [3]

   The factual background underpinning the proceedings may be briefly restated as follows.

4. [4]

   In 2012, Ms Fregnan brought an action against the Mr Stanizzo, claiming damages arising out of allegations of sexual assaults and false imprisonment allegedly committed by Mr Stanizzo.

5. [5]

   In 2015, that action was summarily dismissed by the District Court (“the District Court proceedings”) and that Court ordered that Ms Fregnan pay Mr Stanizzo’s costs of the proceedings, including the notice of motion on an indemnity basis. The defendant appealed to the Court of Appeal against that summary dismissal.

6. [6]

   In 2016, the Court of Appeal reversed the summary dismissal and reinstated the action and ordered costs in favour of Ms Fregnan of the appeal.

7. [7]

   Following the decision of the Court of Appeal, the District Court proceedings were transferred to this Court on 13 March 2017. The matter was listed before Harrison J (“the principal proceedings”).

8. [8]

   In 2017, Ms Fregnan obtained a party/party costs order against Mr Stanizzo. The costs went to assessment and a certificate of assessment was issued on 8 November 2017, this was received by Ms Fregnan from the Manager, Costs Assessment (“the Manager”) on 17 November 2017.

9. [9]

   Mr Stanizzo had 30 days from the date of issue, until 8 December 2017, to file an application for review by a Review Panel. The costs assessment was not enforceable while such a review was pending, or if not applied for, until 30 days after such review had expired. Mr Stanizzo forwarded to Ms Fregnan his application for review on 20 November 2017 – 22 days after issue of certificate (and the first day after his receipt of the certificate). Such application was filed with the Manager on 5 December 2017 and served on Ms Fregnan.

10. [10]

    Ms Fregnan filed (within the 30 day period) the Assessor’s Certificates as a judgment in the Local Court and had a garnishee order issued to the plaintiff’s bank, namely, the Commonwealth Bank (“CBA”). The plaintiff received notice of this on 28 December 2017 by receiving of a letter form CBA, dated 13 December 2017.

11. [11]

    Mr Stanizzo filed a Summons on 15 January 2018, supported by an affidavit for orders declaring that the operation of the certificates be suspended by virtue of s 86 of the Legal Profession Uniform Law Application Act 2014 (NSW) and orders staying enforcement of the judgment and setting aside the garnishee order.

12. [12]

    On 8 March 2018, the Summons came before Latham J for hearing (“the Summons proceedings”). The Summons was heard on the merits and Latham J made orders in favour of Mr Stanizzo as sought in the Summons. Justice Latham also made a costs order as follows:

13. [13]

    The remaining substantive orders sought in the Summons were those in prayers 5 and 6, which are extracted below:

14. [14]

    In 2019, Mr Stanizzo brought a notice of motion filed on 20 December 2019, upon which he sought the following order:

15. [15]

    On 15 July 2019, the matter was listed before Adamson J: Stanizzo v Fregnan [2019] NSWSC 907. On 16 July 2019, her Honour dismissed Mr Stanizzo’s notice of motion. Her Honour’s reasoning for dismissing the notice of motion was as follows (at [11]-[12]):

16. [16]

    On 30 April 2020, Harrison J gave judgment in the principal proceedings in favour of Ms Fregnan in the amount of $135,000, and judgment for Ms Fregnan on the cross-claim and ordered Mr Stanizzo to pay Ms Fregnan’s costs of the proceedings. The decision of Harrison J was appealed by Mr Stanizzo. On 3 September 2021, in Stanizzo v Fregnan; Stanizzo v Badarne; Stanizzo v State of New South Wales [2021] NSWCA 195, the Court (Payne and McCallum JJA and Simpson AJA) dismissed the appeal brought by Mr Stanizzo and the following orders were given:

17. [17]

    On 25 June 2020, Mr Stanizzo filed an application for assessment of party-party costs in respect of those costs. The assessment was referred to Costs Assessor Mr John Sharpe (“the assessor”). Mr Stanizzo claimed costs totalling $44,760.50.

18. [18]

    By Certificates dated 3 August 2020, the assessor determined that Mr Stanizzo did not have “an entitlement to any costs order in his favour”. Therefore, the application for assessment of fair and reasonable costs failed. The assessor purported to issue a determination of “Nil” and that the costs of the assessment should be paid by Mr Stanizzo. Such Certificates were issued to Mr Stanizzo (on payment of such Manager’s costs) on 12 October 2020.

19. [19]

    On 29 October 2020, the plaintiff’s motion was filed.

20. [20]

    On 15 February 2021, the defendant’s motion was filed.

21. [21]

    On 15 April 2021, the parties appeared before me in this Court.

Evidence before the Court

1. [22]

   The plaintiff relied on the following affidavits:

   1. (1)

      Affidavit of Michael Rollinson affirmed on 29 October 2020; and

   2. (2)

      Affidavit of Michael Rollinson affirmed on 5 March 2021.

2. [23]

   The defendant relied on the following:

   1. (1)

      Evidence of 330 pages filed on 26 March 2021, with respective objections.

The plaintiff’s motion

1. [24]

   The plaintiff in the proceedings sought the following orders:

2. [25]

   In the alternative the plaintiff sought the following order:

3. [26]

   Further the plaintiff sought:

The defendant's motion

1. [27]

   The defendant filed a notice of motion on 15 February 2021, seeking the following:

Issue

1. [28]

   The issue in these proceedings is who should pay the costs of the proceedings in the Summons that ran from the filing of the Summons until the orders of Latham J on the 8 March 2018.

Submissions

1. [29]

   In summary, the plaintiff submitted:

   1. (1)

      That the assessment of the assessor is erroneous and that the plaintiff is entitled to the costs and to the assessment of the amount thereof;

   2. (2)

      That the order of Latham J that costs on Summons are to be costs in the cause was in the context in which it was made, namely, an order that no order for costs was made yet in regard to costs that had been incurred in the proceedings to date;

   3. (3)

      That the costs of the Summons, being the costs of the proceedings incurred up to and including that date, are costs in the cause which has been decided in favour of the plaintiff. Such costs follow the event: UCPR r 42.1;

   4. (4)

      Further, the costs incurred in the Summons proceedings up to and including 8 March 2018, in respect of which no order as to costs has been made within UCPR 42.7(1)(b), should be paid or otherwise dealt with in the same way as the general costs of the proceedings;

   5. (5)

      Notwithstanding, Adamson J declining to make a further specific order as to costs on 16 July 2019 and observed the variation of the order made by Latham J in the Summons proceedings was not open to be made on that occasion. It was submitted, that such a variation was unnecessary;

   6. (6)

      The plaintiff contended that “the cause” in order 5 made by Latham J is all the prayers for relief in the Summons, and the determinate of who should have the costs is, therefore, who as a matter of substance prevails in regard to the Summons as a whole, that is the plaintiff, given the orders on the merits made by Latham J;

   7. (7)

      It was submitted, even when applying the view of Adamson J, namely, that the cause would be determined when prayers 5 and 6 in the Summons were decided and costs would depend on which party succeeded. Those prayers have not been and will not be decided, hence, the order that costs are in the cause is rendered obsolete, therefore, the Summons if not finally disposed of and means costs incurred up to the present date on the Summons are “costs in the cause”. Rule 42.7(1)(b) therefore applies and entitles the Court to make the orders sought;

   8. (8)

      It was submitted, that the Court is able to depart from the decision of Adamson J, in view of the application that is brought by the plaintiff under r 42.7, upon which issue was not raised in the proceedings before Adamson J; and

   9. (9)

      That the decision of the Court of Appeal in the principal proceedings has no impact on these proceedings.

2. [30]

   In summary, the defendant made the following submissions:

   1. (1)

      That the plaintiff’s motion has no merit and should be struck out;

   2. (2)

      That the plaintiff be declared a vexatious litigant due to the ongoing litigation between the parties spanning over 10 years;

   3. (3)

      That the assessor and the review panels were correct in rejecting the Cost Assessment Applications of the plaintiff;

   4. (4)

      That the decision of Latham J in the Summons proceedings that “costs on the Summons are to be costs in the cause” are those costs of the principal proceedings conducted before Harrison J; and

   5. (5)

      That the outcome of the appeal in the principal proceedings has no bearing on the matter currently before the Court.

Relevant Legislation and Rules

1. [31]

   The general rule as to costs is set out in s 98 of the Civil Procedure Act 2005 (NSW) and Pt 42 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), namely, that costs follow the event.

2. [32]

   Section 98 of the Civil Procedure Act is extracted below:

3. [33]

   Part 42 of the UCPR sets out the rules with respect to costs. Rule 42.1 is extracted below:

4. [34]

   Specifically, as to interlocutory proceedings, r 42.7 of the UCPR provides:

Consideration

1. [35]

   I respectfully agree with Adamson J that “costs in the cause” means that the costs of any interlocutory proceedings correspond with the final order for costs in the action or principal proceedings.

2. [36]

   Rule 42.7 of the UCPR was explained and “costs in the cause” was defined by Hall J in Gani v Maiolo (No 2) [2014] NSWSC 1471 at [22] in the following terms:

3. [37]

   Justice Adamson had concluded that the evident intent of the orders was that the “cause” in these proceedings was the application for orders in prayers 5 and 6. That is, if the plaintiff succeeded in obtaining the relief in prayers 5 and 6 of the Summons, he would be entitled to the cost of the matter before Latham J. If the plaintiff was unsuccessful, the defendant would be entitled to her costs.

4. [38]

   The submissions of the plaintiff were two-fold.

5. [39]

   First, the plaintiff submitted at [10] of their written submissions:

6. [40]

   It appears to me from this submission that the plaintiff is seeking to reagitate or relitigate the findings and orders of Adamson J. In this respect, the plaintiff is seeking to appeal against the decision of Adamson J in circumstances where I have no jurisdiction to overrule or set it aside. The proper forum for such arguments would be the Court of Appeal. In any event, there appears to me to be no proper basis to take a course with respect to the proceedings other than that adopted by Adamson J.

7. [41]

   Secondly, the plaintiff submitted at [11] of their written submissions:

8. [42]

   This submission of the plaintiff misreads or misapplies the view of Adamson J. Her Honour had expressly contemplated at [11] that the “cause”, that is, prayers 5 and 6 of the Summons, never being determined. Her Honour stated at [11]:

9. [43]

   Even if I were to accept that prayers 5 and 6 will never be dismissed, what the plaintiff is effectively seeking me to do is to declare or deem Latham J’s decision to be the cause and thus award costs to the plaintiff for prevailing on prayers 1 to 4 of the Summons. In my view, taking this step would amount to undermining the intent of Latham J and the decision of Adamson J.

10. [44]

    To the extent that the plaintiff is seeking to vary the order made on 6 March 2018, the time for such variation has passed. There is real doubt as to whether I have the power to make such a variation. However, I respectfully agree with Adamson J at [10], and the authorities cited therein, that, even if I did have the power, it would be appropriate to consider “its terms, the time of its making and the fact that the plaintiff was represented at the hearing which led to it”.

11. [45]

    For these reasons, the plaintiff’s motion should be dismissed.

12. [46]

    I note the defendant’s motion sought an order that the plaintiff be declared a vexatious litigant. Section 8 of the Vexatious Proceedings Act 2008 (NSW) (“VPA”) empowers this Court to make a vexatious proceedings order if the conditions in sub-s (1) are satisfied. Section 8(7) of that Act provides:

13. [47]

    In these proceedings, the form of the orders sought by the defendant is a mere declaration that the plaintiff is a “Vexatious Litigant”. In my view, orders of such nature should not be made in this case for two reasons. First, the evidence on the record is incomplete with respect to the matters of which the Court may have regard to under s 8(2) of the VPA. In summary, that provision provides that the court may have regard to proceedings instituted in any Australian court or tribunal, orders made by any Australian court or tribunal and evidence of decisions of any Australian court or tribunal hearing.

14. [48]

    Secondly, the order sought by the defendant is only a mere declaration without any further order being sought. In my view, there is no utility in making a mere declaration. Whilst I am sympathetic to the fact that the defendant is self-represented and does not have the benefit of legal advice in formulating the orders sought, it would not be appropriate for this Court to formulate further orders without giving the plaintiff an opportunity to be heard: see VPA s 8(3).

Orders

1. [49]

   For these reasons, I am of the view that both the plaintiff’s motion and the defendant’s motion should be dismissed. There should be no order as to costs for both these motions.

2. [50]

   I note that, on 3 February 2022, the Registrar made orders that the proceedings be dismissed and there are to be no further listings. It appears that these orders were made because there were no appearances by the parties to directions hearings listed before the Registrar on 2 December 2021 and 3 February 2022. It appears that the Registrar issued a letter to the parties raising r 13.6 of the UCPR after the December listing. Upon communication by my Associate with the Registrar, it became plain that the Registrar was not aware of the reserved judgment when the order was made.

3. [51]

   My Chambers contacted the parties by email seeking an urgent response regarding the Registrar’s orders. In email communication to my Associate, Ms Fregnan indicated that she was not aware of the Registrar’s orders on 3 February 2022. Counsel that acted for the plaintiff at the hearing, Mr Rollinson, also indicated that he was not aware of the listing and orders made by the Registrar.

4. [52]

   In the exercise of a power conferred upon them, a Registrar constitutes the Court by virtue of s 121(5) of the Supreme Court Act 1970 (NSW) (“SCA”). A judgment of a Registrar takes effect as a judgment of the Court: SCA s 121(4). However, a judgment or order may be set aside or varied by the Court under s 121(3) of the SCA in a process of review generally governed by r 49.19 of the UCPR. In Wentworth v Graham (2002) 55 NSWLR 638; [2002] NSWCA 397, Santow JA summarised a number of unreported decisions regarding the power. Referring to his Honour’s own earlier decision in Westpac Banking Corporation v Abemond Pty Ltd (NSWSC, 3 November 1994, unrep), Santow JA stated at [9]:

5. [53]

   The power to set aside or vary an order of the Registrar should be exercised with restraint. The requirement to demonstrate error is not applicable: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [46] (Basten JA, Hodgson and Ipp JJA agreeing).

6. [54]

   In my view, the proper course would be to vary the orders of the Registrar dated 3 February 2022 pursuant to s 121(3) of the SCA only to the extent necessary to permit this judgment to be handed down and the orders made. However, there should be no criticism directed at the Registrar given the circumstances of a very busy list with no appearance by the parties on two occasions and was not advised of my reserved judgment.

7. [55]

   Therefore, I make the following orders:

   1. (1)

      The orders of the Registrar dated 3 February 2022 are varied only to the extent necessary to permit this judgment to be handed down and the following orders to be made.

   2. (2)

      The Notice of Motion filed by the plaintiff on 29 October 2020 is dismissed.

   3. (3)

      The Notice of Motion filed by the defendant on 15 February 2021 is dismissed.

   4. (4)

      No order as to costs.