Mendonca v Tonna

THE COURT: This judgment concerns a motion seeking re-opening of an earlier decision. The core purpose of judicial power is to quell disputes. In the nature of things, many litigants are unhappy with the result of proceedings. In some cases such litigants will exercise a right to appeal or seek leave to appeal. However, some litigants, commonly unrepresented, find it difficult to accept that a court has ruled against them and approach that court asking it to re-open its decision. Such applications often manifest the subjective certitude of the litigant that any court which properly understood and considered their contentions could not possibly reject them. Of course, in some cases there is due cause to re-open judicial decisions. It is possible, for example, that the court in question has simply overlooked some argument that was made or some evidence that had been drawn to attention. But such cases are rare. This is not one of them.

On 29 April 2025 we handed down a decision refusing the applicant, Dr Renuka Mendonca, leave to appeal in a dispute relating in substance to costs: Mendonca v Tonna [2025] NSWCA 82 (J). The applicant had also filed a notice of appeal in separate proceedings but she conceded that she needed leave to appeal. On that basis we also made orders dismissing her appeal as incompetent. We summarised the context of the application for leave to appeal as follows:

On 6 May 2025 the applicant filed a notice of motion in her leave to appeal proceedings seeking to set aside the orders we made on 29 April 2025. The motion was supported by an affidavit by the applicant sworn on 5 May 2025, to which was attached a nine page submission.

On 8 May 2025 the Registrar of the Court of Appeal sent the parties an email indicating that the Court would consider how to proceed and inform the parties in due course. No order was then made for the respondents to file submissions in response to the application. In the event, it has not been necessary to put the respondents to the expense of taking that step. The applicant’s motion has been determined on the papers, as is common practice for such applications: see eg Woolf v Brandt (No 3) [2024] NSWCA 6 at [21], and cases there cited.

The orders sought in the motion fall into three broad categories:

As to the first, “[j]udges do not choose their cases; and litigants do not choose their judges”: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [19]. An application for re-opening is appropriately directed to and determined by the judge or judges who made the decision sought to be re-opened. It is they who are best placed to determine whether they have mistaken the facts or overlooked some issue or the like. As it happens, incidentally, the long and distinguished period of Justice Basten sitting in this Court came to a statutorily-required end last month.

As to the second, there were two trustees for sale who had been appointed to implement the sale of the property which was at the heart of the dispute between the applicant and the Tonnas. As we noted at J [13], the applicant had not joined the trustees as parties to her application for leave to appeal (or her appeal). That was despite the fact that in an interlocutory hearing in this Court, prior to determination of the application for leave, Basten AJA had said that “the appeal appears to require reconsideration of amounts payable to the trustees, either by way of remuneration or costs”, and that being so, “the trustees would need to be joined as respondents to the appeal”: Mendonca v Tonna [2024] NSWCA 288 at [15]. This point had then been reiterated to the applicant in a letter to her from the solicitors for the Tonnas dated 6 March 2025. The fact that the trustees had not been joined was one of our reasons for rejecting one of the applicant’s main arguments, relating to procedural fairness: J [25]. It is now too late for her to seek to take the step that she was clearly warned she needed to take.

That then leads to the re-opening application. The applicant’s motion referred to r 36.15, subrule (1) of which provides that a judgment or order “may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith”. The applicant did not identify in her submissions any claimed irregularity, illegality or lack of good faith in the relevant sense.

The motion also referred to r 36.16(3A). As regards such re-opening applications, this Court summarised relevant principles in State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283:

Here, contrary to these principles, insofar as the applicant’s submissions can be understood – and they are far from clear – they represent in substance an attempt to re-agitate arguments already considered and rejected. The applicant’s documents refer to the judgment of “Judge Kirk”. In fact it, like this judgment, was a joint judgment of both of us. In what follows we will assume familiarity with that judgment in order to avoid repetition.

Two general points should be made at the outset. First, our decision was a discretionary judgment as to whether or not to grant leave to appeal. We referred to the relevant principles and summarised our conclusion as follows:

The general tenor of the applicant’s submissions is that she had in fact suffered a substantial injustice. For example, in submissions directed to the third of her five grounds of challenge she referred to J [7], as just quoted, then said:

The paragraph illustrates her discontent with our decision and her view that the arguments she raised before us were meritorious. That she is convinced she is correct and that the decision of Kunc J as primary judge was incorrect does not suffice to warrant a grant of leave to appeal. Even if his Honour had erred in some way, the applicant has failed to recognise the discretionary nature of the decision whether to grant leave to appeal, where the ultimate issue is the interests of justice. Nor has she recognised that we concluded it was in the interests of justice for this disputation to come to an end.

Second, many of the grounds and submissions put by the applicant allege that we “failed to conclude with adequate reasons”. Yet “[t]o require extensive reasons – eg addressing in detail all arguments made or grounds raised by an applicant – would be to defeat the very purpose of having a leave gateway”: Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [34].

As for the grounds now raised by the applicant, grounds 1 and 2 relate to J [17]-[22] which dealt with the “set-off issue”. Beyond seeking to re-agitate arguments as to why Kunc J’s judgment manifests errors of principle or caused her a substantial injustice, the main additional point seemed to be an assertion that there was some kind of inconsistency between order 6(b) made by Darke J on 4 June 2021 and the orders of Kunc J. Darke J made orders on 4 June 2021 for the sale by trustees of the property in question. Order 6(b) was to the effect that the trustees were to hold the balance of the proceeds of sale (after accounting for various costs) on trust for the applicant and the Tonnas in proportion to their beneficial ownership, “subject to any adjustments made to reflect the rights of the co-owners in their capacity as such”. The applicant’s complaint seems to be that the effect of the orders of Kunc J was to depart from the quoted words of order 6(b) because in declining to order a set-off an appropriate adjustment was not made. Yet the very provision for future adjustments recognised that this was a matter that might require further consideration. By seeking a set-off it was the applicant herself who was seeking a further order of the Court. No inconsistency is apparent.

Ground 3 relates to the “procedural fairness issue” that we addressed at J [23]-[27]. It begins by asserting that we erred “in failing to consider and conclude with adequate reasons that (upon the Court of Appeal joining trustees as a respondent under UCPR r 51.4(3) on its own motion or by way of this notice of motion) I am entitled as a matter of procedural fairness to receive …”. The applicant thus belatedly recognises that her application was not properly constituted to make that argument. It was not for this Court to join the trustees, and the applicant can have no conceivable cause for complaint on this front given the clear warnings she was given.

Ground 4 says that we erred in failing to consider a remark apparently made in the course of argument by Basten AJA during the interlocutory hearing before his Honour. There was no need for us to do so, and it is difficult to see the relevance of the remark to the current issues in any event.

Ground 5 involves an assertion that we erred in numerous identified paragraphs of our reasons. The core complaint seems to be that we erred in our conclusion. That a party is dissatisfied with the result of litigation, considers the decision wrong, and wishes to have another go at persuading the Court of their position, does not suffice as a basis for re-opening under r 36.16(3A), let alone under r 36.15. Making such arguments is vexatious and an abuse of process: Woolf v Brandt (No 4) [2024] NSWCA 47 at [14]. Where a litigant considers that this Court has erred in its conclusion in an appeal or application for leave to appeal the relevant remedy is to seek special leave to appeal in the High Court.

The Court has remedies available to it in relation to repeated and vexatious applications: ibid at [15]-[16]. It is not appropriate on this occasion for such orders to be considered.

The applicant’s motion will be dismissed. As the Court has determined the application on the papers, and it did not require or provide for the respondents to file and serve submissions, there is no reason to make any order as to costs.