Odlum v Friend (No 2)

THE COURT: By judgment delivered on 3 July 2024 and entered on that date, this Court dismissed the appeal brought by Ms Judith Odlum from the dismissal of her claim against her former solicitor and barrister: Odlum v Friend [2024] NSWCA 159. Ms Odlum appeared unrepresented in that appeal. She also lacks the benefit of legal representation in the current application, which is a notice of motion filed on 5 September 2024, although on 17 July 2024, 14 days after this Court’s decision was delivered, she wrote to the solicitors acting for each of the first and second respondents as follows:

Pausing there, lodgement of court process such as a notice of motion is different from filing it. Speaking generally, a document is taken to have been filed when it is lodged for filing, but r 4.10(3) contains an important exception, which is when the acceptance of the document is subsequently refused by the court or by an officer of the court. Rule 4.10(5) authorises an officer of the court to refuse to accept a document for filing, in the case of a document for which a filing fee is payable, if the fee has not been paid or arrangements satisfactory to the officer of the court have not been made for its payment.

Ms Odlum’s motion contains a stamp representing the Court seal and the notation:

The point of mentioning these procedural details is that this Court has only limited power to revisit its final orders after they have been entered. Rule 36.15 authorises this Court to do so by consent, or if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. Rule 36.16 also permits this Court to vary or set aside a judgment if the notice of motion is filed before entry (r 36.16(1)), or after entry if (relevantly) the judgment is a default judgment or one given in the absence of a party (r 36.16(2)), or in the circumstances stated in the following subrules:

Ms Odlum gave notice of her intention to file a notice of motion within the 14 days stated in r 36.16(3A) and (3B), but her motion was not filed until some months later. As is clear from r 36.16(3C), the circumstances in which the 14 day time limit may be outflanked are limited. Kable v State of New South Wales (No 2) [2012] NSWCA 361 was an example which bears some similarity to the present case, where notification had been given of the application, but no notice had been filed.

Some of the materials supplied by Ms Odlum suggest that part of the reasons for the delay was her applications for waiver of fees (including paragraphs 43-51 of her submissions). For present purposes it is unnecessary to address this in any more detail. We shall proceed, favourably to Ms Odlum, on the basis that this Court has jurisdiction to deal with her motion. Even so, it is quite plain that it must be dismissed.

Ms Odlum’s notice of motion has 37 paragraphs. Much is by way of submission. The general tenor of part is that she is dissatisfied with many things, including this Court’s judgment, and wishes a rehearing. We mean no disrespect to Ms Odlum, but much is difficult to understand. For example, the concluding five paragraphs of the notice of motion are as follows:

The motion is supported by 27 pages by way of submission, and also an affidavit which bears the date of 8 July 2024 on the coversheet but which was witnessed on 4 September 2024 and is 218 pages with six pages of annexures, a separate contents document (bearing the same coversheet) of 26 pages, and a further short affidavit with a four page annexure.

The submission includes an explanation for the length of the affidavit in paragraphs 26-27:

Ms Odlum maintained that her case is important, and in “the public interest, and especially following the findings of the Royal Commission into Banking” (submissions, paragraph 50). She makes allegations of fraud, and of unfairness, and that she lacked time to present her submissions. Many of her submissions are of a character which this Court would not permit a legal practitioner to make. The large majority of the hundreds of paragraphs are submissions about the events of more than a decade ago which have been the subject of the litigation giving rise to the appeal. Again, by way of example, the 4 September 2024 affidavit concludes with paragraph 416:

The principles governing the power to re-open a judgment pursuant to r 36.15 were recently summarised in Mohareb v State of New South Wales (No 2) [2024] NSWCA 69 at [20]. No proper basis has been put forward to establish that this Court’s judgment was made irregularly or illegally or against good faith. No basis has been made out to engage the power to re-open this Court’s judgment at general law. It is also well established that the power conferred by r 36.16 (a) is to be exercised “sparingly and with caution”, having regard to the importance of finality of litigation, and (b) “does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them”: Majak v Rose (No 5) [2017] NSWCA 238 at [12]-[13]. The purpose of the power was stated by this Court as follows at [12]:

Assuming favourably to Ms Odlum that her motion falls within the scope of r 36.16, no proper basis has been put forward to set aside or vary this Court’s judgment.

Yesterday afternoon, after Ms Odlum was informed that judgment on her motion would be delivered today, she supplied a further letter of six pages. Nothing in that letter, which is as difficult to summarise as her previous submissions and affidavit but which each of us has read, alters the disposition of her motion.

This paragraph is written for the benefit of Ms Odlum. The nature of litigation is that there are winners and losers. In many cases, the loser has a right to appeal. However, all litigation must come to an end. Save in very exceptional cases, it comes to an end after a trial and after an appeal. Ms Odlum has had a trial in the Supreme Court over some five days, and she has had an appeal. Nothing has been put forward to provide any basis for this Court exercising its exceptional jurisdiction to revisit the outcome of the appeal.

The notice of motion filed on 5 September 2024 must be dismissed. Ms Odlum must pay the respondents’ costs of that motion.