Kostov v State of New South Wales (No 2)

BELL P (for the Court): There is set down for hearing today before the Court of Appeal a summons filed by Ms Adriana Kostov seeking leave to appeal from the decision of Fagan J, Kostov v State of New South Wales (Vexatious Proceedings) [2018] NSWSC 1794, in which his Honour made various orders including orders pursuant to s 8(7) of the Vexatious Proceedings Act 2008 (NSW).

There is also listed before the Court a notice of motion filed in the same proceedings by the Attorney General for New South Wales seeking, pursuant to s 23 of the Supreme Court Act 1970 (NSW), leave for the Attorney as intervener to be joined to these proceedings as second respondent or, in the alternative, to be permitted to participate as an amicus curiae and seeking orders that the Court review a range of suppression or non‑publication orders made in various sets of proceedings, and that any suppression or non‑publication orders made be varied pursuant to s 13(3) of the Court Suppression and Non‑publication Orders Act 2010 (NSW) so as to permit the Attorney and his legal advisers access to some eight interlocutory and final judgments listed in prayer 5 of the notice of motion.

Subsequent to the filing of the notice of motion and the initial affidavit of Mr Luke Teo filed in support of the Attorney's application, the motion has been narrowed to seek access to have the suppression orders varied in respect of only three judgments.

Email correspondence was sent to my chambers by Ms Kostov at 6.26pm on Friday 15 March requesting the matter be moved to the week of 29 April 2019. By an email to the Registrar of the Court of Appeal sent at 7.59am on Monday 18 March 2019 and also copied to my chambers, Ms Kostov peremptorily stated that:

On 25 March 2019 at 2.38pm, Ms Kostov emailed the Registrar of the Court of Appeal stating that she had asked Ms Malhotra, the Acting Crown Solicitor, to consent to the matter being adjourned to the week of 29 April. That email was not initially copied to Ms Malhotra but was sent to her a short time later.

On Tuesday, 26 March 2019, the Registrar of the Court of Appeal emailed Ms Kostov acknowledging receipt of certain affidavits sent in the DX and the subject of an email sent by Ms Kostov to the Registrar earlier that morning in which Ms Kostov stated:

In his email of 11.13am on 26 March 2019, the Registrar made it plain that:

Within three minutes of receiving that email, Ms Kostov replied by email stating:

By an email of 11.49am on 26 March 2019 on behalf of the Crown Solicitor, Ms Kostov was informed that the Attorney General did not consent to her request for an adjournment.

By an email sent at 3.10pm on 26 March 2019 ‑ that is, yesterday ‑ Ms Kostov wrote to the Registrar saying that “[she] will have a lawyer appearing tmoro [sic], but only to seek an adjournment [and that] in such circumstances [she] would appreciate Ms Malhotra consenting to such.”

In a further email sent to Mr McDonnell of the Crown Solicitor's Office at 5.21pm last night, Ms Kostov repeated her request for an adjournment and said, "[w]ork comes first, my career comes first, so I am in no position to be present tomorrow".

In an affidavit filed on 26 March 2019 and sworn the previous day, Ms Kostov said, in para 2, as follows, "I'd asked for this matter to be relisted to the week of 29th April 2019… for the reason that, I am very busy at work".

By a further email received at 9.39am this morning, Ms Kostov indicated that, contrary to earlier communications, she would not be represented by a legal representative in Court this morning.

Ms Kostov's affidavit to which I have referred comprises some 40 paragraphs. Paragraphs 4 to 36 contain material, none of which supports the granting of any adjournment, although it does contain the claim by Ms Kostov in para 4 that she is "in fact, one of Australia's most intelligent women". In paras 37 to 39, Ms Kostov says:

The Attorney's notice of motion, which is before the Court, was originally set down for hearing on 21 February, but that date was vacated on the application of Ms Kostov.

As McCallum JA observed in para 16 of her judgment in this matter reported at [2019] NSWCA 17 delivered on 11 February 2019, Ms Kostov's application for leave to appeal and the Attorney's notice of motion were both listed for hearing today: that is to say, both matters have been set down for hearing today for approximately six weeks.

No cogent reason has been advanced for granting the adjournment sought. The reason stated on a number of occasions for the adjournment sought is so that Ms Kostov can "focus on work" and be "permitted to deal with this matter – in [her] own time – around work commitments".

In this Court, matters are set down well in advance of hearing to allow for their orderly preparation. When a matter is set down for hearing, the Court commits to making two or three judges available, depending on the nature of the case, to hear a matter and those judges are thereby not available to hear other matters which could have been set down on the same day. The Court system could not otherwise function, and there is no merit whatsoever in Ms Kostov's informal application for an adjournment of proceedings.

The informal application is refused.