Kostov v Zhang (No 3)

THE COURT: On 19 September 2016, this Court dismissed an application for leave to appeal from a decision of Wilson J delivered on 7 April 2016: Kostov v Zhang [2016] NSWCA 262.

The decision of the Court concerned an unsuccessful attempt by the applicant to have two separate proceedings she had commenced in the District Court transferred to the Supreme Court pursuant to s 40 of the Civil Procedure Act 2005 (NSW). The history of the proceedings is sufficiently set out in the earlier decision of this Court.

An application for an extension of time and for special leave to appeal to the High Court was made by the applicant and refused on 8 March 2017: Kostov v Zhang [2017] HCASL 52. Bell and Gageler JJ stated that:

On 14 October 2016, this Court determined an application pursuant to s 98(4) of the Civil Procedure Act made by the first and third respondents for a payment of costs in a gross sum. The Court awarded costs under that section in the amount of $15,000: Kostov v Zhang (No 2) [2016] NSWCA 279. No application was made by the applicant for special leave to appeal nor was any application made within the time period fixed by the Uniform Civil Procedure Rules 2005 (NSW) r 36.16 for any variation of that order.

On 12 December 2017, over 12 months after this Court had determined the issue of the gross sum costs order, the applicant filed a notice of motion in this Court seeking the following orders

No power to make any of the three orders sought in that notice of motion was identified by the applicant, either in the motion, her evidence or her submissions.

Three affidavits sworn by the applicant on 2 February 2018, 16 March 2018 and 20 March 2018 were eventually filed in support of her notice of motion. Most, if not all, of the information contained in and annexed to those affidavits does not relate to the gross sum costs order the subject of order 1 of her motion.

The applicant’s affidavit sworn on 2 February 2018 commences by referring to an affidavit apparently sworn by her on 12 December 2017, which the applicant confirmed by email on 3 April 2018, was not relied upon for the purposes of her motion. The content of the 12 December 2017 affidavit, part of which is purportedly set out in the affidavit sworn on 2 February 2018, includes allegations about the conduct of Gibson DCJ in defamation proceedings in the District Court apparently heard after the applicant’s motion in this Court had been finally determined.

The essence of the affidavit sworn on 2 February 2018 is in the nature of a submission asserting that this Court should not have heard the application for leave to appeal which it decided on 19 September 2016. The applicant in effect repeats the claim that certain medical evidence relied upon in her application for an adjournment should have been acted upon by the Court. The failure to do so is described as “grossly unreasonable.” That evidence was, however, addressed by the Court in its decision: [2016] NSWCA 262 at [20] and [23]. No reason has been shown to doubt that the material was properly taken into account and accorded such weight as it deserved.

The affidavit sworn on 2 February 2018 also annexes a series of incomplete and redacted documents containing some transcripts of argument before Gibson DCJ and some medical evidence apparently tendered by the applicant in separate contempt proceedings in which she was engaged with another party in 2017. The relevance of those documents to this application was not explained.

The affidavit sworn on 16 March 2018 is incomprehensible. It contains what may be excerpts from a transcript of separate proceedings, apparently conducted before Gibson DCJ, which are in aid of a submission, ultimately made in paragraph 109 of the affidavit, that:

The affidavit sworn on 20 March 2018 annexes a more expansive version of the medical evidence annexed to the affidavit sworn on 2 February 2018 and some medical evidence from 2017, together with a collection of emails and transcripts from the separate contempt proceedings in 2017 and proceedings before Gibson DCJ in 2017.

Written submissions were filed by the applicant and the respondents to the motion. The applicant’s written submissions dated 22 February 2018 stated that:

The second respondent filed an affidavit of Ms Leanne Norman sworn on 8 March 2018, which provided formal proof of the order of the High Court refusing special leave to appeal from the September 2016 decision of this Court. The first and third respondents filed brief submissions on 8 March 2018 as did the second respondent. The essence of those submissions was that:

Consideration

The applicant does not have a right to an oral hearing of a motion filed in respect of proceedings which have been completed in 2016 and where orders of the Court were entered then. This motion does not constitute an application for leave to appeal within the meaning of the Uniform Civil Procedure Rules 2005 (NSW) r 51.15. For the reasons which follow, the motion and accompanying evidence does not raise any arguable basis to make proposed order 1 and so far as proposed orders 2 and 3 are concerned, the motion is incompetent. No basis has been shown why other litigants’ cases must await the further prosecution by the applicant of such an application by oral hearing which she asserts “will take some time”. The application for an oral hearing is refused.

It will be recalled that order 1 of the applicant’s motion concerns the orders of 14 October 2016 regarding costs payable as a gross sum to the first and third respondents. No evidence or submission directly addressed order 1. No basis was identified by the applicant as permitting the Court to consider proposed order 1. The only possible basis in this case is UCPR r 36.15 which provides:

The judgment of the Court was perfected in October 2016. The width of the power in UCPR r 36.15 as traditionally understood may now need to be re-considered by reason of the decision of the High Court in Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12, where the High Court said:

Assuming for present purposes in the applicant’s favour that she is entitled to invoke UCPR r 36.15, and that Clone does not affect the breadth of the power previously understood to be provided by UCPR r 36.15, no warrant has been shown to set aside the order for costs entered against her pursuant to that rule.

The applicant’s reliance upon Minister for Immigration and Citizenship v Li is misconceived. The principle described in that case is addressed to an administrative decision maker. This Court, Wilson J and the District Court were not in hearing the applicant’s case acting as administrative decision makers. The principle in Li has no application. Even if it was possible to describe the orders of this Court in September 2016 as “grossly unreasonable” that would not provide a sufficient basis for them to be set aside under UCPR r 36.15. Special leave to appeal from the September 2016 decision was refused by the High Court.

The order of the Court was not made “irregularly, illegally or against good faith”. The applicant’s application for an adjournment of the September 2016 proceedings was considered, as was the evidence she then relied upon. There was nothing “irregular” in the rejection of the applicant’s application for an adjournment. Taking into account all of the subsequent evidence she now relies upon does not lead to any different conclusion.

In any event, as earlier pointed out, the only challenge the applicant makes in the present motion by proposed order 1 to proceedings in the Court of Appeal is to the separate order made in October 2016 about costs. There was virtually no attention paid by the applicant in her evidence and her submissions to the decision made in October 2016. There is no arguable basis in the evidence to suggest that there was anything “irregular” in the making of that gross sum costs order. Proposed order 1 in the applicant’s notice of motion filed on 12 December 2017 must be dismissed.

So far as proposed orders 2 and 3 of the applicant’s notice of motion filed on 12 December 2017 are concerned, it is clear that the notice of motion is incompetent.

As to proposed order 2, it is apparent that the orders about which the applicant complains were made on 2 February 2017 (and on subsequent dates) in the District Court in relation to this matter. Her rights of appeal to the Court of Appeal in relation to those orders are set out in s 127 of the District Court Act 1973 (NSW). Section 48(2)(f) of the Supreme Court Act 1970 (NSW) assigns any application for leave to appeal or appeal to the Court of Appeal. The applicant is not able to enliven the appellate jurisdiction of this Court in relation to orders of the District Court by filing a notice of motion in this Court in unrelated proceedings as to costs. If the applicant seeks to challenge any order made in the District Court in 2017 (or at any other time) she will need to commence separate proceedings either for leave to appeal or appeal and seek an extension of time. Nothing in this judgment reflects any view having been formed by the Court about the applicant’s ability to take such a course. Her attempt to enliven the appellate jurisdiction of this Court by means of the notice of motion fails. The motion, to this extent, is incompetent.

Proposed order 3 sought in the applicant’s notice of motion is also incompetent. The applicant asserts that dispositive orders were made on 2 February 2017 in the District Court. If (and only if) the applicant succeeds, in separate proceedings, in setting aside those orders (the likelihood of which we express no view upon) there may then be a proceeding in the District Court in respect of which she may seek, by commencing separate proceedings, to transfer the proceedings to the Supreme Court. No such proceeding now exists. Even if it did, the applicant is not able to enliven the jurisdiction of this Court in relation to the transfer of proceedings by filing a notice of motion in unrelated proceedings as to costs.

The motion must be dismissed. The applicant must pay the costs of the motion of the first, second and third respondents as agreed or assessed. Those orders will be entered forthwith.

Before leaving this case it is appropriate to note that in relation to the separate contempt proceedings involving the applicant an order has been made by this Court that judgments in relation to those proceedings be removed from caselaw and not be published until further order of the Court of Appeal.

Although no adequate material has yet been filed in relation to the present motion which persuades us that this judgment should not be published on caselaw (and indeed the applicant now asserts that she has fully recovered from her earlier illness) we do not at this stage propose to publish this judgment on caselaw but rather simply distribute it to the parties.

If, within 14 days, the applicant wishes to make an application for a pseudonym order or a non-publication order about this judgment we will consider that application on the papers. Any such application and supporting evidence should be filed with the Registry.

Any evidence filed must include a complete current report from the applicant’s treating doctor. We wish to make it clear that a redacted part of a 2017 report from Dr Ellis (an extract of which was annexed to the applicant’s affidavits on this application) would not be sufficient to persuade us to make any order for non-publication. What would be required is a complete current report from the applicant’s treating doctor in support of any application for non-publication she chooses to make. In the absence of receipt of such an application the judgment will be published on caselaw after a period of 14 days.

The orders of the Court are: