Zepinic v Eventus Lawyers Pty Ltd trading as SLF Lawyers

By summons (described as: Summons (Judicial Review)) filed on 5 October 2023, Vito Zepinic (‘the plaintiff’) seeks judicial review of a decision of Rothman J delivered 23 June 2023: Zepinic v Eventus Lawyers Pty Ltd t/as SLF Lawyers (No 2) [2023] NSWSC 699. The references in these reasons (J[1] etc) are to paragraphs of that judgment.

The proceedings before Rothman J concerned a claim for alleged professional negligence that the plaintiff made against his former solicitors, Eventus Lawyers Pty Ltd (‘the defendant’), and also with a notice of motion, filed by the plaintiff on 28 September 2022, that Rothman J described as “seeking 15 orders to set aside numerous judgments and orders of courts in previous proceedings, as well as annulling or invalidating certain transactions that have occurred since 2009”: at J[3].

Rothman J dismissed the proceedings, entering judgment for the defendant, and also dismissed the plaintiff’s notice of motion. The plaintiff seeks “judicial review” of these orders.

The defendant, by notice of motion filed 7 November 2023, seeks an order that the plaintiff’s summons be summarily dismissed, under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) and further, or in the alternative, an order that the plaintiff’s claim for relief dealing with the notice of motion that the plaintiff filed on 28 September 2022, be permanently stayed as being commenced in contravention of orders made on 25 May 2017 under s 8(7) of the Vexatious Proceedings Act 2008 (NSW).

The plaintiff did not appear when the matter was initially called. He did not appear after the matter was called outside Court.

The defendant sought to proceed in the absence of the plaintiff. It was submitted that the plaintiff was notified of the hearing of the defendant’s notice of motion and, given that matter, the defendant is entitled to proceed in the absence of the plaintiff.

The defendant relied upon an affidavit of its solicitor, Baron Alder, sworn 5 April 2024 to establish such notice. It was submitted that the plaintiff was advised of today’s hearing in the following ways.

The first way that the defendant sought to prove that the plaintiff was aware of today’s hearing was by reliance upon an email sent by the solicitors for the defendant to the plaintiff on 12 December 2023: Alder affidavit, par 3 and annexure ‘A’. That email advised the plaintiff of the orders that were made by the Court on 12 December 2023. The orders included fixing the defendant’s notice of motion for hearing on 10 April 2024 and orders for the filing and service of evidence as well as submissions by both parties. The email was sent to the plaintiff’s email address that was identified on the front page as the ‘contact email’ for the plaintiff. That email address also appears on the last page of the summons, with the plaintiff’s other address details.

No email was received to indicate that this email had not been delivered to that address (unlike on later occasions): Alder affidavit, par 4.

Section 161 of the Evidence Act 1995 (NSW) creates a presumption in relation to electronic communications other than those referred to in s 162 (a section that is not presently relevant). The term ‘electronic communication’ is defined in the Dictionary and relevantly extends to an email: see, in this last respect, by way of example, Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155 at [17]-[18]; Kegran Pty Ltd v Warrik Pty Ltd (2018) 19 BPR 38665; [2018] NSWSC 1357 at [30].

By s 161(1), it is presumed “unless evidence sufficient to raise doubt about the presumption is adduced” that the email: (1) was sent in the form of the email dated 12 December 2023 (s 161(1)(a)); (2) was sent by the solicitors for the defendant (s 161(1)(b)); (3) was sent on 12 December 2023 at 6:52pm (s 161(1)(c)); (4) was “received at the destination to which it appears from the document to have been sent” (s 161(1)(d)); and (5) as it appears from the email that the sending concluded at the time identified, “was received at that destination at that time” (s 161(1)(e)).

As I have noted, above, no email or other communication was received to indicate that this email had not been delivered to that address. There is, I accept, no evidence sufficient to raise doubt about the presumption. Accordingly, the presumption created by s 161(1) establishes service of the email and notification of the hearing date.

The second way that the defendant sought to prove that the plaintiff was aware of today’s hearing was by reliance upon a letter sent from the solicitors for the defendant to the plaintiff dated 19 March 2024: Alder affidavit, par 8 and annexure ‘D’. That letter was addressed to the plaintiff’s address as stated in the summons. In relation to service of the letter dated 19 March 2024, the defendant relied upon s 160 of the Evidence Act in order to engage the presumption that the letter sent was received at the nominated address.

It is accepted that in order to prove service by post, it is necessary to establish a number of matters. They were described in Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869 (at [13]) as follows:

There are a number of other cases to similar effect including Snow v Snow [2015] NSWSC 90 at [16].

Here, however, the evidence was confined simply to the following in the solicitor’s affidavit, par 8:

It is apparent that a number of matters required to be demonstrated in order to secure the presumption of service provided by s 160 are not addressed by this evidence. In my view, service of the 19 March 2024 letter (and accompanying documents) has not been proven. Accordingly, I am not satisfied that the plaintiff had notice of this hearing by the presumed receipt of that letter.

Nevertheless, given the plaintiff was notified of today’s hearing involving the defendant’s notice of motion by the email dated 12 December 2023, I propose to proceed in the absence of the plaintiff.

It is necessary to make some brief reference to the background facts.

The proceedings before Rothman J, as earlier noted, involved a claim by the plaintiff against his former solicitors for professional negligence. The allegation of the plaintiff was that the defendant breached retainers in the period 2017-2018 – retainers described by Rothman J as the ‘March 2017 retainer’ and the ‘April 2018 retainer’ – causing him to suffer loss and damage.

In connection with the March 2017 retainer, the allegation was that the defendant failed to represent him in vexatious litigant proceedings and, further, failed to institute court proceedings against the Trustee who had been appointed by orders made by Slattery J on 8 April 2010 to sell a property formerly owned by the plaintiff and his wife: see J[10]-[12], [67]-[68].

The reference to vexatious litigant proceedings is a reference to proceedings heard by Pembroke J, on 9 May 2017, for orders under the Vexatious Proceedings Act against the plaintiff. At the hearing of that application, neither the plaintiff, nor anyone on his behalf, appeared and a range of orders were made under that Act: J[17]-[19]. The plaintiff appealed against those orders and, by judgment delivered on 14 December 2018, the Court of Appeal dismissed the plaintiff’s appeal: Zepinic v Chateau Constructions (Aust) Limited [2018] NSWCA 317.

Rothman J dismissed the plaintiff’s claims in connection with the March 2017 retainer: J[125]-[126].

In connection with the April 2018 retainer, the allegation was that the defendant failed to pursue a defamation action on behalf of the plaintiff, contrary to his instructions: J[92]-[102].

Rothman J dismissed the plaintiff’s claim in connection with the April 2018 retainer: J[129]-[130].

In the proceedings before Rothman J, the plaintiff also pursued various forms of relief by way of notice of motion filed 28 September 2022. That notice of motion, which sought 15 orders, was dismissed by Rothman J. More specifically, the orders sought and their disposition were as follows:

The defendant, as earlier noted, specifically relied upon r 13.4(1) of the UCPR. That rule provides:

A purpose of r 13.4 is to “save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings” and to protect “the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications”: Ugur v Attorney General for New South Wales [2019] NSWCA 86 at [70].

The defendant’s principal argument is that a summons seeking judicial review of the decision of Rothman J is misconceived because there cannot be judicial review of a decision of a judge of the Supreme Court acting in their capacity as such: Penson v Titan National Pty Ltd [2015] NSWCA 404 at [8]-[10](‘Penson’); Choi v Secretary, Department of Justice and Communities (2022) 405 ALR 714; [2022] NSWCA 170 at [214] (‘Choi’). The prohibition was explained in Penson at [8]-[10] as follows:

The orders made by Rothman J, therefore, are not amenable to review under s 69 of the Supreme Court Act 1970 (NSW). In those circumstances, the proper order is that any proceeding seeking such relief should be dismissed as frivolous and vexatious and an abuse of process: Choi at [228]; Pi v Zhou [2016] NSWCA 24 at [9]-[11]. That involves rr 13.4(1)(a) and (c) of the UCPR.

Given the finding made by Rothman J about prayers 1-9 of the notice of motion filed 28 September 2022 (at J [41], referred to in [26(1)], above), that conclusion applies equally to order 2 sought in the plaintiff’s summons. I will explain briefly why that follows.

The defendant’s submission was that the contravention of those orders was as follows:

These submissions are plainly correct. As I have already noted, Rothman J made a finding that prayers 1-9 of the plaintiff’s notice of motion filed 28 September 2022 “lie squarely within the ambit” of the vexatious litigant orders made on 25 May 2017 leading to an order that the claims for relief be dismissed: J[41], [47].

The defendant, as a third way of putting the application, initially moved for orders under s 13 of the Vexatious Proceedings Act. However, Ms Holcombe indicated that orders of those kind were no longer pursued.

For the above reasons, I make the following orders: