De Varda v Austin

BELL P: There is before the Court the balance of a summons seeking leave to appeal from a decision of a judge in the Equity Division: see De Varda v Austin (Pembroke J, 8 June 2018, unrep). Aspects of that summons have been dealt with by Beazley P in the matter of De Varda v Austin [2018] NSWCA 263. The result of her Honour’s decision was to leave, as a matter to be determined by the Court, the question of leave to appeal from two orders made by the primary judge pursuant to the Vexatious Proceedings Act 2008 (NSW) (the Vexatious Proceedings Act).

Those orders were made following a hearing that took place on 8 June 2018 at which the first applicant for leave to appeal, Joseph De Varda, appeared, but the second applicant for leave to appeal, Rabbi Samuel Tov-Lev, did not appear.

In the course of argument there was tendered by counsel for the second, third and fourth respondents a communication to the second applicant, Rabbi Tov-Lev, of 1 June 2018 enclosing a draft notice of motion together with an indication that when the matter was otherwise due to come before the Court on the following Monday on the first return of the statement of claim, orders in the draft notice of motion would be sought to be obtained from the duty judge. The draft notice of motion contained a number of orders including, in the alternative to the principal relief sought, in paras 9 and 10 orders pursuant to s 8 of the Vexatious Proceedings Act.

The covering letter under which the draft notice of motion was served indicated to Rabbi Tov-Lev that, when the matter was referred to the duty judge in the following week, the second, third and fourth defendants would seek relief in terms of prayers 1 to 6 of the enclosed draft notice of motion. Those prayers do not include the prayers seeking alternative relief under the Vexatious Proceedings Act.

Rabbi Tov-Lev accepts that he was aware that there was to be a hearing in the week of 4 June, but he was personally overseas and did not attend that hearing.

Similar correspondence to that received by Rabbi Tov-Lev was also received by Mr De Varda on 1 June 2018, also indicating an intention on the part of the second, third and fourth defendants to seek relief in terms of prayers 1 to 6 of the draft notice of motion. That is to say, no notification was given of an intention to seek orders pursuant to s 8 of the Vexatious Proceedings Act before the duty judge the following week.

The matter came on for hearing before Pembroke J on Friday 8 June 2018 and in the course of, but towards the end of, that hearing his Honour raised the question of the relief sought in the notice of motion (which by then had been filed) under the Vexatious Proceedings Act. It is a matter of record that his Honour proceeded to make orders pursuant to s 8 of the Vexatious Proceedings Act directed to both Mr De Varda and Rabbi Tov-Lev.

The course of argument on the leave application this morning has focused on Pembroke J’s refusal to recuse himself for actual or apprehended bias in circumstances where he had been counsel acting for Lawcover in proceedings which had been brought by Mr De Varda against a firm of solicitors as long ago as 2002.

Although that was the focus of the arguments advanced by Mr De Varda and supported by Rabbi Tov-Lev, in the course of the hearing and in light of the 1 June 2018 communications, to which I have earlier referred, addressed respectively to Mr De Varda and Rabbi Tov-Lev, a real and serious question arises in relation to the appropriateness of the orders made pursuant to s 8 of the Vexatious Proceedings Act in circumstances where, in the case of Rabbi Tov-Lev, it appears he was given no prior notice that relief pursuant to those prayers of the draft notice of motion would be sought, and, in the case of Mr De Varda, there is or may be a question as to whether, on my reading of the transcript, he was given an opportunity to be heard in respect of that aspect of the notice of motion on which counsel, then acting for the second, third and fourth defendants, had not initially moved.

In those circumstances, it is my opinion that it is appropriate that there be a grant of leave to appeal in this matter.

LEEMING JA: I agree with the President.