DD v AA; DD v Lewis; DD v PP

Case •

[2023] NSWCA 140

•

22 June 2023

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: DD v AA; DD v Lewis; DD v PP [2023] NSWCA 140
Hearing dates: 20 June 2023
Date of orders: 22 June 2023
Decision date: 22 June 2023
Before: Griffiths AJA
Decision:

DD v AA (2023/63196)

(1) The application for an adjournment is dismissed, with costs.

(2) The Tutor Motion is dismissed, with costs.

(3) The Stay Motion is dismissed, with costs.

(4) The Fresh Evidence Motion be adjourned to the hearing of the appeal.

(5) The Amended Notice of Appeal Motion is dismissed, with costs.

(6) The Dismissal Motion be adjourned to the hearing of the appeal.

(7)

(a) The appellant provide security for the respondent’s costs of the appeal in the amount of $20,000 (GST inclusive) by payment into Court or provision of security to the satisfaction of the Registrar, such security to be provided on or before 17 August 2023.

(b) Order that the proceedings in this Court be stayed until such security is given.

(c) Liberty to the respondent to apply after 17 August 2023 for an order that the appeal be dismissed if the security ordered has not been provided by 17 August 2023.

(d)The appeal to be listed before the Registrar for directions as soon as practicable after 17 August 2023.

DD v Lewis (2023/63182)

(1) The application for an adjournment is dismissed, with costs.

(2) The Tutor Motion is dismissed, with costs.

(3) The Stay Motion is dismissed, with costs.

(4) The Fresh Evidence Motion be adjourned to the hearing of the appeal.

(5) The Amended Notice of Appeal Motion is dismissed, with costs.

(6) The Dismissal Motion be adjourned to the hearing of the appeal.

(7)

(a) The appellant provide security for the respondent’s costs of the appeal in the amount of $20,000 (GST inclusive) by payment into Court or provision of security to the satisfaction of the Registrar, such security to be provided on or before 17 August 2023.

(b) Order that the proceedings in this Court be stayed until such security is given.

(c) Liberty to the respondent to apply after 17 August 2023 for an order that the appeal be dismissed if the security ordered has not been provided by 17 August 2023.

(d) The appeal to be listed before the Registrar for directions as soon as practicable after 17 August 2023.

DD v PP (2023/63191)

(1) The application for an adjournment is dismissed, with costs.

(2) The Tutor Motion is dismissed, with costs.

(3) The Stay Motion is dismissed, with costs.

(4) The Fresh Evidence Motion be adjourned to the hearing of the appeal.

(5) The Amended Notice of Appeal Motion is dismissed, with costs.

(6) The Dismissal Motion be adjourned to the hearing of the appeal.

(7)

(a) The appellant provide security for the respondent’s costs of the appeal in the amount of $32,000 (GST inclusive) by payment into Court or provision of security to the satisfaction of the Registrar, such security to be provided on or before 17 August 2023.

(b) Order that the proceedings in this Court be stayed until such security is given.

(c) Liberty to the respondent to apply after 17 August 2023 for an order that the appeal be dismissed if the security ordered has not been provided by 17 August 2023.

(d) The appeal to be listed before the Registrar for directions as soon as practicable after 17 August 2023.

Catchwords:

PROCEDURE – adjournment application – tutor motion – insufficient medical evidence – non-compliance with UCPR requirements – stay motion – respondents entitled to fruits of success – no suggestion that appeal will be rendered nugatory – dismissal motion – Court’s reluctance to strike out appeals – security for costs – special circumstances – previous appeal dismissed for failure to pay security – no evidence that order for security would stultify proceedings

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Civil Procedure Act 2005 (NSW)

Guardianship Act 1987 (NSW)

Mental Health Act 2007 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Powers of Attorney Act 2003 (NSW)

Uniform Civil Procedure Rules

Cases Cited:

Alexander v CambridgeCreditCorporationLtd (1985) 2 NSWLR 685

Brown v King [2022] NSWCA 75

Carey v Carey [2020] NSWSC 765

DD v PP [2022] NSWCA 98

Gabrielle v Abood [2022] NSWCA 250

Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383

L v Human Rights and Equal OpportunityCommission (2006) 233 ALR 432;[2006] FCAFC 114

Macquarie International Health Clinic Pty Limited v Sydney Local Health District [2019] NSWCA 281

Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] EWCA Civ 70; [2003] 1 WLR 1511

P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321; [1991] HCA 36

Porter v Lee [2010] NSWSC 998

Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247

PY v RJS [1982] 2 NSWLR 700

Smilevska v Smilevska [2015] NSWSC 1794

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Wall v Wall [1994] NSWCA 336

Woollard v Australia and New Zealand Banking Group Ltd [2016] NSWCA 258

Texts Cited:

Practice Note No SC CA 1

Category:Procedural rulings
Parties:

DD (Appellant)

Lewis (Respondent) (2023/63182)
AA (Respondent) (2023/63196)
PP (Respondent) (2023/63191)
Representation:

M Barbeliuk (for the appellant on the adjournment application with leave)
DD (unrepresented on the motions)

Counsel:
K Andrews (Respondents)

Solicitors:
Carroll & O’Dea Lawyers (Respondents)
File Number(s): 2023/63196 (AA)
2023/63182 (Lewis)
2023/63191 (PP)
 Decision under appeal 
Court or tribunal:
Supreme Court of NSW
Jurisdiction:
Common Law
Citation:

[2022] NSWSC 1039; [2022] NSWSC 92; [2022] NSWSC 447; [2021] NSWSC 1157; [2021] NSWSC 1312; [2021] NSWSC 1524

Date of Decision:
05 August 2022
Before:
Chen J; Davies J; Davies J; Cavanagh J; Cavanagh J; Cavanagh J
File Number(s):
2021/155673 (AA)
2018/200890 (Lewis)
2018/204001 (PP)

JUDGMENT

  1. Several notices of motion were listed for hearing before this Court on 20 June 2023. Before describing the motions (and a belated adjournment application by the appellant), it is convenient to say something briefly about the background to the proceedings. The appellant (whom I will refer to by the pseudonym DD) has appealed from separate judgments and orders of the Supreme Court, namely AA v [DD] [2022] NSWSC 1039 per Chen J (5 August 2022); Lewis v [DD] [2022] NSWSC 92 (18 February 2022) (and Lewis v [DD] (No 2) [2022] NSWSC 447 (27 April 2022)) per Davies J; and PP v DD [2021] NSWSC 1157 (12 July 2021), PP v DD (No 2) [2021] NSWSC 1312 (15 October 2021) and [PP] v [DD] (No 3) [2021] NSWSC 1524 (23 November 2021) per Cavanagh J. There is a non-publication order in respect of one of the respondents in the appeals (see DD v PP [2022] NSWCA 98 per White JA). There is also a non-publication against the name of the appellant in that appeal. I will use the same pseudonym (DD) for the appellant in the other matters. I consider that the non-publication order also applies to the transcript of the 20 June 2023 hearing.

  2. The appellant was convicted some years ago of a series of historical sexual assault charges in respect of each of the three respondents. Subsequently, each of the respondents (then plaintiffs) successfully brought separate proceedings in the Supreme Court and each was awarded damages in respect of the sexual assaults committed by the appellant against them when they were minors. The appellant was ordered to pay damages in the amounts of $217,550.00 (AA proceedings), $1,353,850.00 (Lewis proceedings) and $1,273,125.00 (PP proceedings). The appellant was also ordered to pay the plaintiffs’ costs on either the ordinary or indemnity basis.

  3. Approximately a year later, notices of appeal were filed on 24 February 2023 in the three proceedings. No notice of intention to appeal had been filed and the notices of appeal were well out of time. Each notice of appeal was signed by Mark Barbeliuk, who holds a power of attorney in respect of the appellant. All the notices of appeal also sought an extension of time to appeal.

  4. The appeal in the matter DD v PP was filed against the background of an earlier appeal having been dismissed with costs on 5 September 2022 (see further at [100] below).

  5. It is apparent on the face of the notices of appeal that they were prepared with little if any involvement by a legal practitioner. Each contains approximately 85 paragraphs which are in the nature of narrative submissions. Approximately three-quarters of those paragraphs are identical in each notice of appeal.

  6. The notice of appeal in the DD v PP appeal identifies eight grounds of appeal. There are seven grounds of appeal in the DD v AA and DD v Lewis appeals.

  7. For convenience, I will set out those grounds in each of the three appeals in the order referred to at [1] above without alteration.

DD v [PP] grounds of appeal

  1. Ground 1;“Incompetence of counsel”. Understanding is not by itself a ground of appeal in a civil case, this ground feeds into the question of whether there has been a “miscarriage of justice”. In this case, plainly the threshold is exceeded.

  2. Ground 2: “Incompetence/lack of capacity of the litigant, leading to the denial of a proper hearing". The plain lack of capacity, absence of any litigation guardian advice, and absence of a litigation guardian (tutor) being appointed, couple (sic) with the collective grounds of appeal, has plainly led to the denial of proper hearings has occurred.

  3. Ground 3: Notwithstanding grounds 1 and 2, there are a number of jurisdictional issues with (1) how these proceedings were conducted and (2) how the trial was conducted. To be further articulated in submissions.

  4. Ground 4: The trail (sic) judge erred in not giving adequate or sufficient reasons and or making sufficient enquiries into the appellant’s plain legal incapacity, the absence of any competent or legally qualified person (tutor) to instruct Mr Hall, with no attempt to remedy the obvious prejudice the defendant suffered in the manner the trial was conducted.

  5. Ground 5: The trail (sic) judge erred in not providing adequate or sufficient reasons and or failed to make adequate or sufficient enquiries, into the facts and circumstances surrounding the appellants bankruptcy declaration verified in May 2022 and proceeded the trial with a bankrupt litigant.

  6. Ground 6: The trail (sic) judge erred in concluding on the first day of the trail, in judgment PP v DD [2021] NSWSC 1157 paragraph “[62] However, the defendant has previously been represented by very experienced and competent solicitors and barristers. This is not a case in which it could be said that the previous solicitors and Counsel for the defendant either were not following instructions or were incompetent.”. Inter alia, the impacts are recorded in [9]-[12] of the primary judgement (sic), coupled the historical issues and collective grounds herein.

  7. Ground 7: The trial judged error in determining the defendant’s alleged actions were the causation invoking the plaintiff’s loss and damages awarded.

  8. Ground 8: Notwithstanding grounds 1-7, the trail (sic) judge erred in awarding damages that were manifestly excessive.

DD v AA grounds of appeal

  1. Ground 1; “Incompetence of counsel” Understanding is not by itself a ground of appeal in a civil case, this ground feeds into the question of whether there has been a “miscarriage of justice”. In this case, plainly the threshold is exceeded.

  2. Ground 2: “Incompetence/lack of capacity of the litigant, leading to the denial of a proper hearing” The plain lack of capacity, absence of any litigation guardian advice, and absence of a litigation guardian (tutor) being appointed, couple with the collective grounds of appeal, has plainly led to the denial of proper hearings has occurred.

  3. Ground 3: Notwithstanding grounds 1 and 2, there are a number of jurisdictional issues with (1) how these proceedings were conducted and (2) how the trial was conducted. To be further articulated in submissions.

  4. Ground 4: Noting it is currently unclear to the extend (sic) these issues were explored, the trail (sic) judge erred in not giving adequate or sufficient reasons and or making sufficient enquiries into the appellant’s absence at the trial, his legal incapacity, the absence of any competent or legally qualified person (tutor) to instruct Mr Hall, with no attempt to remedy the obvious prejudice the defendant suffered in the manner the trial was conducted.

  5. Ground 5: Noting it is unclear if he was presented with any form of opportunity, the trail (sic) judge erred in not providing adequate or sufficient reasons and or failed to make adequate or sufficient enquiries, into the facts and circumstances surrounding the appellants bankruptcy declaration verified in May 2022 and proceeded the trial with a bankrupt litigant.

  6. Ground 6: The trial judged error in determining the defendant’s alleged actions were the causation invoking the plaintiff’s loss and damages awarded.

  7. Ground 7: Notwithstanding grounds 1-6, and the absence of any true and accurate defence by Mr Hall, the trail judge erred in awarding damages that were manifestly excessive and or the plaintiff was not legally entitled to be awarded.

DD v Lewis grounds of appeal

  1. Ground 1;“Incompetence of counsel”. Understanding is not by itself a ground of appeal in a civil case, this ground feeds into the question of whether there has been a “miscarriage of justice”. In this case, plainly the threshold is exceeded.

  2. Ground 2: “Incompetence/lack of capacity of the litigant, leading to the denial of a proper hearing”. The plain lack of capacity, absence of any litigation guardian advice, and absence of a litigation guardian (tutor) being appointed, couple with the collective grounds of appeal, has plainly led to the denial of proper hearings has occurred.

  3. Ground 3: Notwithstanding grounds 1 and 2, there are a number of jurisdictional issues with (1) how these proceedings were conducted and (2) how the trial was conducted. To be further articulated in submissions.

  4. Ground 4: The trail (sic) judge erred in not giving adequate or sufficient reasons and or making sufficient enquiries into the appellant’s plain legal incapacity, the absence of any competent or legally qualified person (tutor) to instruct Mr Hall, with no attempt to remedy the obvious prejudice the defendant suffered in the manner the trial was conducted.

  5. Ground 5: The trail (sic) judge erred in not providing adequate or sufficient reasons and or failed to make adequate or sufficient enquiries, into the facts and circumstances surrounding the appellants bankruptcy declaration verified in May 2022 and proceeded the trial with a bankrupt litigant.

  6. Ground 6: The trial judged error in determining the defendant’s alleged actions were the causation invoking the plaintiff’s loss and damages awarded.

  7. Ground 7: Notwithstanding grounds 1-6, the trail (sic) judge erred in awarding damages that were manifestly excessive.

The notices of motion

  1. The appellant has filed several notices of motion in each of the appeals. The following motions filed in the PP proceedings are evidently representative.

  1. An amended notice of motion filed on 13 June 2023 seeking to appoint Mr Stuart Greene as tutor for the defendant (sic) [DD] and seeking dispensation from the rule in r 7.14(2) of the Uniform Civil Procedure Rules (“UCPR”) such that the proceedings in this Court and proceedings in the Common Law Division be commenced or carried on by the tutor, without an acting solicitor on record (“Tutor Motions”). Each notice of motion was filed by Mark Barbeliuk, exercising his power of attorney.

  2. A notice of motion filed on 9 March 2023 seeking a stay of proceedings in the Common Law Division (2018/204001) pending the hearing of the appeal, a stay of all judgments and orders in those proceedings, including the primary judgment and orders as to costs, pending the hearing of the appeal and a stay of the enforcement of a Writ of Levy dated 24 October 2022 in that matter, pending the hearing of the appeal. (“Stay Motions”) Each notice of motion was filed by Mark Barbeliuk, exercising his power of attorney.

  3. A notice of motion filed on 6 April 2023 seeking leave both to adduce fresh evidence and to file and serve an amended notice of appeal. (“Fresh Evidence Motions” and “Amended Notices of Appeal Motions”). Each notice of motion was filed by Mark Barbeliuk, exercising his power of attorney.

  1. Each of the respondents has filed a notice of motion (dated 30 March 2023 (AA), 31 March 2023 (Lewis) and 28 March 2023 (PP) respectively) in their respective appeals which seeks similar relief namely that: Each appeal be dismissed or struck out, or, alternatively, the appellant should pay security for costs (“Dismissal Motions” and “Security for Costs Motions”).

Procedural background in this Court

  1. On 12 April 2023, Registrar Riznyczok made the following orders (I will use the pseudonyms referred to at [1] above).

ORDERS AND OR DIRECTIONS

1.   Orders made in accordance with paragraphs 1 to 6 and 10 to 14 of the Short Minutes of Order.

SHORT MINUTES OF ORDER

1.    In each of Court of Appeal Proceedings 2023/63182 (the Lewis Appeal), 2023/63191 (the [PP] Appeal) and 2023/63196 (the AA Appeal), the Appellant ([DD]) has filed the following Notices of Motion:

(a) A Notice of Motion filed on 9 March 2023 in respect of the appointment of a Tutor on behalf of [DD] pursuant to UCPR 7.18 (the Tutor Motions);

(b)    A Notice of Motion filed on 9 March 2023 in respect of the stay of the enforcement of judgments obtained in Supreme Court of NSW proceeding nos. 2018/200890 (in respect of Darren Lewis) (the Lewis Proceedings), 20182018/204001 (in respect of [PP]) (the [PP] Proceedings) and 2021/15563 (in respect of AA) (the AA Proceedings) pending determination of the Lewis Appeal, the [PP] Appeal and the AA Appeal respectively (the Stay Motions); and

(c)    A Notice of Motion filed on 6 April 2023 in respect of the filing of fresh evidence in the appeal (the Fresh Evidence Motions).

2.    In each of the Lewis Appeal, the [PP] Appeal and the AA Appeal, each respective respondent has filed a Notice of Motion on 31 March, 28 March and 31 March 2023 respectively seeking various relief, including the summary dismissal of the appeals, the notices of appeal be struck out or security for costs (the Dismissal Motions).

3.    Each of the Respondents respectively consents to a stay of enforcement of the judgments obtained in the Lewis Proceedings, the [PP] Proceedings and the AA Proceedings until 24 May 2023 and will consider a further extension thereafter, subject to the Appellant acting expeditiously to resolve the Tutor Motions and the Stay Motions.

4.    The Appellant, through his legal representatives and pending the anticipated appointment of a tutor, proposes to file Amended Notices of Appeal and Stay Motions and to defer resolution of the Fresh Evidence Motions until the relevant fresh evidence has been specifically identified.

BY CONSENT, THE COURT ORDERS THAT

5.    The Tutor Motions be heard in advance of the Stay Motions, the Fresh Evidence Motions and the Dismissal Motions.

6.    The Tutor Motions be heard together and evidence served in one be evidence in each of the other Tutor Motions.

10.    The Appellant serve all evidence he intends to rely on, including any expert evidence, in respect of the Tutor Motions by 17 May 2023.

11.    The Tutor Motions, the Stay Motions, the Fresh Evidence Motions and the Dismissal Motions be adjourned to 24 May 2023 before the Court of Appeal Registrar for further directions and with a view to setting a hearing date for the Tutor Motions.

12.    Enforcement of all judgments obtained in the Lewis Proceedings, the [PP] Proceedings and the AA Proceedings be stayed until 11.59 pm on 24 May 2023.

13.    Liberty to all parties to apply on 48 hours' notice.

14.    Costs reserved.

15.    Note that the stay dose (sic) not extend to prevent the assessment of costs in the Division.

  1. On 24 May 2023, the motions were listed for mention before the Registrar. The appellant was represented by Mr Barbeliuk and Mr Brown appeared for the respondents. The respondents sought a hearing date for all of the motions. Mr Barbeliuk sought deferral of any such hearing for three weeks, relying on his affidavit filed on 22 May 2023. Reference was made to the difficulties of obtaining the appellant’s medical files from Justice Health, as well as Mr Barbeliuk’s physical and mental health issues. Mr Barbeliuk confirmed that attempts were being made to find lawyers to represent the appellant. The Registrar pointed out that a solicitor would be needed even if a tutor were appointed.

  1. In pressing for a hearing date for the motions, Mr Brown pointed out that the appellant had had at least six different legal representatives during the course of the criminal proceedings in various courts and the civil proceedings in the Supreme Court. He submitted that the Justice Health records were not essential to the application to appoint a tutor because that application relates to the applicant’s legal incapacity at the point in time at which the application is made. Reference was also made to proceedings in the Supreme Court for enforcement of the judgments, which proceedings have been briefly adjourned by Yehia J pending the determination of the various motions in this Court.

  2. The Registrar pointed out at the mention that the respondents were entitled to have some certainty in terms of how their judgments were to be enforced “and if the enforcement proceedings are being held up because of these appeal proceedings, then these appeal proceedings ought to go forward”.

  3. The Registrar then made orders for the provision of submissions on the motions for security for costs, appointment of a tutor, and applications for a stay. The motions were stood over for hearing on 20 June 2023 at 10:15AM. Thus, the appellant was granted the three week deferral requested on his behalf on 24 May 2023.

  4. On 5 June 2023, Registrar Riznyczok refused leave to the appellant to issue a subpoena to Justice Health & Forensic Mental Health Network under r 7.3 of the UCPR. The Registrar published brief reasons for his decision on that day.

  5. On 13 June 2023, Registrar Riznyczok ordered that the time for the appellant’s submissions on the various motions be extended until 3:00PM on 16 June 2023. The time for the respondents to reply was extended until 3:00PM on 19 June 2023.

  6. There was an exchange of emails on 15 and 16 June 2023 between the Registrar and Mr Barbeliuk. In one of those emails (sent at 1:59PM on 15 June 2023) Mr Barbeliuk said that the appellant had had to change a medical appointment with his cardiologist to Tuesday 20 June 2023 at 9:00AM. Mr Barbeliuk said that if the 20 June 2023 date was to be maintained for the hearing of the motions, “the only way I can see us being able to appear would be if the hearing was in the afternoon, from about 2:00PM” or, preferably, an alternate date would be found to relieve the pressure facing him and the appellant. Mr Barbeliuk also noted that the “only option” was for him to appear via Audio-visual link (“AVL”). The Registrar replied on 15 June 2023, saying that he expected that a listing of the motions at 2:00PM on 20 June 2023 would be possible and that the request to appear by AVL would be responded to shortly. He also raised for the parties’ consideration the possibility of the motions being heard on 19, 21, or 22 June 2023. Later, on 15 June 2023 Mr Barbeliuk replied stating that it was “prudent” to avoid Tuesday 20 June for the hearings because of uncertainties with the medical appointment and that the only other suitable date was 22 June 2023.

  7. The respondents’ solicitor emailed the Registrar the following day stating that their preference was for the hearing of the motions to proceed at 2:00PM on 20 June 2023 and that their counsel was not otherwise available until dates in July.

  8. By a further email sent at 2:38PM on 16 June 2023, Mr Barbeliuk complained that the tasks of preparing evidence for all the motions by 3:00PM that day was simply not achievable, and he accused the Registrar of “a significant bias in favour of the respondents has ensued under Registrars (sic) case management”.

  9. By an email sent at 5:06PM on Friday 16 June 2023, the Registrar advised the parties that the motions would be heard at 2:00PM on 20 June 2023 and that Mr Barbeliuk could appear by AVL or telephone. He also advised that any application for an adjournment could be made at the outset of that hearing. The appellant was told that if he wished to put on any further material, whether in support of or against the motions, or in support of an application to adjourn, that should be emailed to the Registrar by 5:00PM on Monday 19 June 2023, with the respondents being copied into any such communication.

The appellant’s adjournment application on 20 June 2023

  1. When the hearing was called on 20 June 2023 at 2:00PM, there was no appearance for the appellant. Mr Barbeliuk emailed my associate saying that he had been delayed because of the appellant’s medical appointment and he expected to join the AVL between 2:30 and 2:45PM.

  2. At 2:55PM Mr Barbeliuk appeared by AVL and sought leave to appear for the appellant. Leave was granted for this to occur in respect of the various motions which were then before the Court. Mr Barbeliuk then sought an adjournment, relying upon the following material (which had been emailed to the respondent and the Court at approximately 9:00PM the night before):

  1. His affidavit sworn on 19 May and filed on 22 May 2023;

  2. Dr Quan’s affidavit filed on 22 May 2023;

  3. Medical report dated 3 December 2020 by Dr Donald Rowe (Clinical psychologist/neuropsychologist);

  4. Medical report dated 15 November 2022 by Dr Quan;

  5. Medical report dated 12 January 2023 by Dr Quan (in fact no such report was provided);

  6. Medical Report dated 23 February 2023 from Mr Barbeliuk’s psychologist, Dr Tim Lewer (in fact no such report was provided);

  7. Reasons for judgment of Yehia J on 23 March 2023;

  8. Emails dated 8 to 10 May 2023 from Dr Susan Pulman;

  9. Medical report dated 11 May 2023 from Dr Lewer;

  10. A photograph of “working files” dated 21 December 2022;

  11. A photo of the appellant said to have been taken on 23 March 2023;

  12. A photo of “working files” as at 6 June 2023;

  13. A transcript dated 12 April 2023 of the mentions before the Registrar;

  14. Registrar’s orders dated 12 April 2023;

  15. A transcript dated 24 May 2023 of the mentions before the Registrar;

  16. Registrar’s orders dated 24 May 2023;

  17. Registrar’s reasons dated 5 June 2023; and

  18. A copy of Smilevska v Smilevska [2015] NSWSC 1794.

  1. Mr Barbeliuk also provided a copy of a notice of motion which had been filed on 19 June 2023 and which is returnable before the Court on 26 June 2023. He acknowledged that that motion was not returnable before me and that it was relied upon in support of the adjournment request.

  2. In brief, the basis for the adjournment request, as presented by Mr Barbeliuk, is that:

  1. He was unaware that the motions had all been set down for hearing today and there were simply too many documents for him to review.

  2. There were consent orders which were different from the orders made by the Registrar on 12 April 2023.

  3. The Registrar has demonstrated bias in making case management orders which favoured the respondents who were legally represented as opposed to the appellant.

  4. Arrangements have been made for the appellant to be assessed by Dr Pulman on 5 July 2023.

  1. The respondents (who were represented by Mr Andrews of counsel) opposed the adjournment. In brief, they submitted that if it be the case that the appellant lacked legal capacity as now alleged, Mr Barbeliuk had no standing to represent the applicant because he had not been appointed a tutor. Reference was also made to the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) (“Civil Procedure Act”) of facilitating the “just, quick and cheap resolution of the real issues in the proceedings”. It was noted that most of the primary judgments were now more than 12 months old. Moreover, in the case of the PP appeal, a previous appeal had been dismissed by consent and the fresh appeal was said to be an abuse of process.

  2. In reply, Mr Barbeliuk repeated many of the points he had made orally in chief. He added that Dr Pulman’s medical report was expected to be available by 11 August 2023.

  3. At this point, I indicated that the adjournment request was rejected and that I would provide reasons for that decision subsequently. I stated that the Court would now proceed to hear the parties’ various motions, starting with the appellant’s Tutor Motions. Mr Barbeliuk then said that he regarded this as unfair and he wanted immediately to cease representing the appellant. I said that Mr Barbeliuk was entitled, as a member of the public, to continue to watch the proceedings via the AVL but that he should turn his sound to mute and not interrupt because he no longer had standing to represent the appellant. Mr Barbeliuk initially disconnected the visual link and then subsequently disconnected the audio link. This occurred at approximately 3:50PM after the hearing had been in progress for a little under an hour.

  4. The Court indicated that the hearing would continue as scheduled and without the appellant being represented. Mr Andrews then made detailed oral submissions in respect of the various motions.

  5. Before addressing those motions, it is appropriate if I now state the reasons why I was not persuaded why it was in the interests of the administration of justice for the hearing to be adjourned.

  6. First, the notices of appeal were filed on 24 February 2023. Consistently with s 56 of the Civil Procedure Act it is important that they be progressed so as to give effect to the overriding purpose, not the least because it is evident that their pendency is affecting the respondents’ rights to enjoy the fruits of their successful proceedings in the Supreme Court.

  7. Secondly, for reasons which will be developed below, I am not persuaded that it has been demonstrated that the appellant is currently under legal incapacity. It will be open to the appellant to make a fresh application to have a tutor appointed if and when there is sufficient supporting medical evidence and attention has been given to other relevant requirements for a tutor to be appointed.

  8. Thirdly, the proceedings should not be further adjourned to enable the appellant to obtain legal representation. No sufficient evidence has been provided to indicate whether any inquiries have been made in this respect and whether there is any prospect that a legal practitioner will be retained in the near future. Indeed the Tutor Motions seek a dispensation of the requirement that the tutor be assisted by a solicitor.

  9. Fourthly, although Mr Barbeliuk elected not to represent the appellant in the hearing of the motions after his adjournment request was refused, he had provided considerable material in relation to at least some of those motions, which I indicated would be taken into account. No written submissions were filed by or on behalf of the appellant, notwithstanding that, as noted above, time was extended by the Registrar for that to occur (see [16] above).

  10. Fifthly, as to the claim that the orders made on 12 April 2023 are different from the orders which were consented to, it is notable that a copy of the final orders made was emailed to Mr Barbeliuk on 3 May 2023 by Mr Felizzi. Those orders included orders 5, 6, 10-14 which were all stated to be made by consent. Mr Barbeliuk responded to Mr Felizzi on 18 May 2023. He made express reference to the orders he had received from Mr Felizzi and he made no complaint that they were inaccurate in any respect. As the transcript of the directions hearing on 12 April 2023 records, order 15 was added to the end of the orders at the suggestion of the respondents’ counsel and was not objected to by the appellant’s then senior counsel.

  11. Finally, as is evident from the summary above of the procedural background, the Registrar has been case managing the motions since 12 April 2023. Contrary to Mr Barbeliuk’s claim of bias, it is evident that the Registrar granted several adjournments or extensions of time to enable him to present the appellant’s case on the motions. On 24 May 2023, Mr Barbeliuk was successful in obtaining a deferral of more than three weeks from 24 May 2023 when the motions were set down for hearing on 20 June 2023 at 10:15AM. The Registrar then further extended the time for the provision of the appellant’s submissions to 3:00PM on 16 June 2023. The appellant was given a further indulgence to accommodate his medical appointments by shifting the hearing time of the motions from 10:15AM to 2:00PM on 20 June 2023. The scheduled hearing was then delayed by almost an hour because of Mr Barbeliuk’s non-appearance.

The various motions

  1. Consistently with the Registrar’s earlier orders dated 12 April 2023, I will address the Tutor Motions first before addressing the appellant’s other notices of motion.

Appellant’s Tutor Motions

  1. Division 4 of Pt 7 of the UCPR deals with persons under legal incapacity. Rule 7.13 defines a “person under legal incapacity” as including a person who is incapable of managing his or her affairs. It is desirable to set out rr 7.14-7.16:

7.14   Proceedings to be commenced or carried on by tutor

(1)     A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.

(2)     Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.

7.15   Tutors generally

(1)     Subject to this Division, a person may become the tutor of a person under legal incapacity without the need for any formal instrument of appointment or any order of a court.

(2)     Any person (other than a corporation) is eligible to be the tutor of a person under legal incapacity, in respect of any proceedings, unless the person is—

(a)     a person under legal incapacity, or

(b)     a judicial officer, a registrar or any other person involved in the administration of a court, or

(c)     a person who has an interest in the proceedings adverse to the interests of the person under legal incapacity.

(3)     In the case of proceedings with respect to the estate of a person whose estate is subject to management under the NSW Trustee and Guardian Act 2009 [(NSW)], the tutor of that person is to be the person who has the management of the person’s estate under that Act.

(4)     Subrule (3) does not apply if the person concerned declines to act as tutor or is unable to act as tutor, or if the court orders otherwise.

(5)     A person may not replace another person as tutor of a person under legal incapacity except by order of the court.

(6)     Anything that these rules authorise or require a party to do in relation to the conduct of proceedings may, if the party is a person under legal incapacity, be done on his or her behalf by his or her tutor.

7.16   Tutor to file certain documents

A tutor may not commence or carry on proceedings on behalf of a person under legal incapacity unless there have been filed—

(a)     the tutor’s consent to act as tutor, and

(b)     a certificate, signed by the tutor’s solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.

  1. The Court’s power to appoint and remove a tutor is dealt with in r 7.18:

7.18   Court may appoint and remove tutors

(1)     In any proceedings in which a party is or becomes a person under legal incapacity—

(a)     if the person does not have a tutor, the court may appoint a tutor, or

(b)     if the person has a tutor, the court may remove the party’s tutor and appoint another tutor.

(2)     In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings.

(3)     If the court removes a party’s tutor, it may also stay the proceedings pending the appointment of a new tutor.

(4)     Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person’s tutor, on the tutor.

(5)     In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include—

(a)     evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and

(b)     evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.

(6)     An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor.

  1. The Registrar has made various directions for the filing of evidence and submissions regarding the various notices of motion. The directions and orders made on 12 April 2023 are set out at [10] above.

  2. Two affidavits were filed in support of the appellant’s motions, including presumably the Tutor Motions. The first is the affidavit of Mark Barbeliuk filed on 22 May 2023. The second affidavit is that of Dr Dick Quan also filed on 22 May 2023.

  3. Mr Barbeliuk describes himself as a retired journalist. He is 56 years of age and says that he has known DD since he was about 15. He says that DD is 80 years of age. He says that he has held DD’s power of attorney since about 2012.

  4. The rest of Mr Barbeliuk’s affidavit is stated to be for the purpose of requesting the vacating of the directions hearing then scheduled for 24 May 2023 and to have it deferred.

  5. Mr Barbeliuk deposed to various matters which he said prevented compliance with the order that the appellant file his evidence by 17 May 2023. Those matters include Mr Barbeliuk’s mental health and COVID-19 illness, as well as his claim that Justice Health responded inadequately to various requests that it release DD’s medical records for the period he was incarcerated. Mr Barbeliuk deposed that the only medical records which have been released by Justice Health were four pages which were released to DD’s general practitioner, Dr Dick Quan.

  6. Mr Barbeliuk deposed that, until all medical records held by Justice Health were provided it was impossible to complete the brief to a medical expert, for DD to be assessed by the medical expert, for a medical report to be prepared and for Mr Barbeliuk to complete his lay affidavit.

  7. Mr Barbeliuk further deposed that on 15 May 2023 counsel who had been briefed to appear for the appellant had withdrawn his retainer. Mr Barbeliuk said that he intended to explore the possibility of retaining other legal representatives as soon as reasonably possible and that, while he had no desire to appear for the appellant in any way, if there was no alternative he would reluctantly do so to progress the Tutor Motions, if he was granted leave.

  8. As noted above, the only other affidavit filed by the appellant in support of his motions is the affidavit of Dr Dick Quan, who practises at Level 3, 26 College St, Sydney. Dr Quan deposed that he has been the appellant’s general practitioner since DD was released from prison in July 2022. Dr Quan deposed that he had a consultation with the appellant on 12 May 2023. He described his efforts to obtain the appellant’s complete medical records from Justice Health for the ten year period of his imprisonment. He confirmed that he had received only four pages of medical records for the period 2013-2017. Dr Quan said that without full and complete medical records from Justice Health, he was prevented from providing optimal medical care to the appellant and was unable to prepare any further medical evidence for the Court.

  9. It is notable that, despite the fact that Dr Quan had been treating the appellant for almost ten months (up until the date of his affidavit), he expressed no opinion on the issue of the appellant’s present legal incapacity.

  10. As noted above, Mr Barbeliuk also filed various other medical reports, primarily in support of the adjournment request but presumably also in respect of the appellant’s motions. The first such report is that of Dr Donald Rowe and is dated 3 December 2020. Dr Rowe is a consultant clinical psychologist and neurophysiologist. It is evident that Dr Rowe’s report was obtained in support of the appellant’s parole application several years ago. Large parts of the report are directed to Dr Rowe’s opinion that the appellant presented a “most likely very low” potential danger to the general community upon his release (see at [61] of the report). Dr Rowe also opined that, based on an interview with the appellant, “he displayed apparent neurocognitive difficulties raising concern that he is suffering from an early form of dementia”. Dr Rowe referred to the appellant’s nine years of incarceration as having been a “particularly negative experience with the development of what is likely to be Major Depressive Disorder (MDD) and now a Neurocognitive Disorder (NCD)”.

  1. At [67] of his report, Dr Rowe stated:

Unfortunately [the appellant] in his older age has developed a Neurocognitive Disorder, in what appears to be most likely a form of Lewy Body Dementia. This condition can be difficult to diagnose due to the fluctuating cognitive and mental state which occurs in this disorder such at times these individuals can appear relatively coherent but a state which is not sufficiently sustained. Diagnosis is also often dependent on caregiver observations including during REM sleep, in addition to neuro imaging and specialist neurological consults which are not available within the Justice Health System. In turn specialist treatment can improve cognitive functioning and/or reduce the patient’s rate of decline, which whilst incarcerated is unlikely to occur in the case of [the appellant] further limiting his potential life span.

  1. It is to be noted that Dr Rowe’s report is dated 3 December 2020 and it necessarily reflects Dr Rowe’s assessment at that time. It is also notable that Dr Rowe considered that the appellant’s medical conditions had been affected by his incarceration, an influencing factor which ceased in mid-2022 when the appellant was released. I am not satisfied that Dr Rowe’s report establishes that the appellant is currently under legal incapacity.

  2. I have also taken into account some comments of Yehia J in her Honour’s reasons dated 23 March 2023 in the Common Law Division. Mr Barbeliuk (exercising the power of attorney) sought an adjournment of the plaintiffs’ proceedings in the Supreme Court seeking to enforce the judgment debts. Each plaintiff sought orders pursuant to s 135 of the Civil Procedure Act authorising the Sheriff to enter the San Souci property for the purposes of executing the Writs of Levy. At [28], her Honour referred to a report dated 14 October 2020 by Dr Tanveer Ahmed, which was annexed to an affidavit of Mr Barbeliuk in support of his adjournment application in the Common Law Division. A copy of that report has not been provided to this Court but the following observations by Yehia J at [28] and [29] are noted:

A report prepared by Dr Tanveer Ahmed, dated 14 October 2020, appears as annexure “R” to the affidavit of Mr Barbeliuk. Dr Ahmed stated that there were times when the defendant “appeared vague and disorientated but at other times was lucid and appeared intact”. During the interview, he was able to answer questions, but would often go on tangents and talk about his eccentric interests at length. He was not outright thought disordered, and he was orientated regarding time and place. The defendant did satisfy the criteria for autism spectrum disorder. Dr Ahmed went on to state that the defendant:

“is more disorientated at times. It is possible he felt threatened, but was anxious, and had some features of depressed mood. It was during these periods that he was somewhat disorientated or thought disordered. He was, on balance, cognitively intact. Any disorientation or irritability was consistent with someone on the autism spectrum challenged with new routines and people, namely in the context of a psychiatric interview”.

During the application for adjournment, [DD] was asked some questions. It appears to me that he did not understand the nature of the proceedings. Although the material before me did not establish that the defendant lacked capacity, I was not confident in my observations and interactions with him, that he fully understood what was happening.

  1. It is notable that her Honour stated that the material before her did not establish that the appellant lacked capacity, even though her Honour lacked confidence that he fully understood what was happening.

  2. Almost three months have now passed since Yehia J gave reasons for granting the adjournment. Her reasons for doing so were, first, that she believed that it was preferable for the now appellant to be represented by a legally qualified practitioner and, as at 23 March 2023, Mr Fernon SC had been retained and had advised his availability (subsequently Mr Fernon SC returned the brief).

  3. The second matter, which her Honour described at [38] as “perhaps more importan[t]”, was that she was not confident, based on her own observations of the appellant, that he fully understood the nature of the proceedings which took place on 23 March 2023. Her Honour then added that there was a notice of motion listed before the Court of Appeal on 12 April 2023 and that, in all the circumstances, although her Honour was expressly reluctant to do so, the adjournment of the proceedings in the Supreme Court was granted. I was informed, however, that those proceedings were listed for further directions in the Common Law Division on 23 June 2023.

Consideration and determination of the Tutor Motions

  1. The first issue is whether the Court is satisfied that the appellant is under a legal incapacity. The evidence in relation to this matter is scant, notwithstanding that the appellant (and/or Mr Barbeliuk) have had several months to obtain up to date supporting medical evidence. Moreover, as will shortly emerge, the appellant has been involved in numerous previous legal proceedings (some of which are quite recent) without any suggestion that he lacked legal capacity.

  2. As has been made clear in the caselaw, a person is presumed to be competent and to have legal capacity once they reach the age of 18 unless the contrary is established. A person is taken to be under a legal incapacity if they are, for example, an involuntary patient; a correctional patient within the meaning of the Mental Health Act 2007 (NSW); a person under guardianship within the meaning of the Guardianship Act 1987 (NSW); a protected person within the meaning of the NSW Trustee and Guardian Act 2009 (NSW) or, as provided for in r 7.13 of the UCPR, “a person who is incapable of managing [their] affairs”.

  3. In PY v RJS [1982] 2 NSWLR 700, Powell J (as his Honour then was) identified the relevant test for whether a person is incapable of managing their affairs by reference to the following two limbs. First, the person appears incapable of dealing, in a reasonably competent fashion, with ordinary routine affairs. Secondly, that by reason of that lack of competence, there is shown to be a real risk either that they may be disadvantaged in the conduct of their affairs, or that their moneys or property may be dissipated or lost.

  4. Apart from the fact that Mr Barbeliuk has held a power of attorney in relation to the appellant since about 2012 (which incidentally is about the time when the appellant was incarcerated), no persuasive evidence has been provided which indicates that the appellant is currently under legal incapacity. True it is that the current appeals and related notices of motion have been filed by Mr Barbeliuk in apparent exercise of his power of attorney, but there is no evidence to demonstrate that this course was taken because the appellant is under legal incapacity.

  5. The importance of there generally being relevant supporting medical evidence was emphasised by Darke J in Carey v Carey [2020] NSWSC 765 at [7] where in determining a notice of motion relating to the appointment of a tutor, where the plaintiff was alleged to be under a legal incapacity and no medical evidence was provided, his Honour said:

It is well-established that in most cases, even in the vast majority of cases, the Court will require medical evidence in order to determine whether to appoint a litigation guardian or tutor (see Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] EWCA Civ 70; [2003] 1 WLR 1511 at [17] and [29] per Kennedy LJ). Further, in L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114 the Full Federal Court stated at [27]:

The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier Kennedy LJ had observed (at [17]):

‘even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists’.

  1. This is not a case where the party who is said to lack legal capacity has refused to submit to a medical examination. In addition, although it appears that Dr Quan has not obtained the appellant’s full medical records concerning his period in incarceration, and it is claimed that this prevents an expert medical opinion being obtained from another practitioner, it is difficult to understand why Dr Quan himself has not provided some medical evidence as to the appellant’s incapacity given that he has been his treating doctor for approximately 10 months.

  2. Mr Barbeliuk also provided emails which indicated that on or about 8 May 2023, he arranged for the appellant to be assessed by Dr Susan Pulman and that an appointment had been made for 5 July 2023. After Dr Pulman inquired on 9 May 2023 whether the appellant had been assessed previously by a psychologist, psychiatrist or neuropsychologist, Mr Barbeliuk said in an email dated 10 May 2023 that a brief (for what is described as a medico-legal assessment) was being prepared which would contain relevant medical documents. The contents of Dr Pulman’s report (which is expected by 11 August 2023) are mere speculation at this time. If the report demonstrates that the appellant lacks legal capacity, appropriate steps can be taken to have the Court reconsider the matter.

  3. In addressing the present Tutor Motions I consider that it is also relevant to take into account that, absent some acceptable explanation to the contrary which has not been forthcoming, some significance must attach to the fact that the appellant has been a party to numerous proceedings during the period 2014 to 2022, without any issue having apparently arisen in those proceedings as to his legal capacity. Those previous proceedings include further criminal proceedings against the appellant in the District Court in 2021, his appeal against that decision in 2021, multiple proceedings between the appellant and the Commissioner of Police in 2020 relating to the validity of a warrant and the interlocutory proceeding before White JA on 27 May 2022 relating to the earlier PP appeal (where the appellant was represented by a solicitor).

  4. Moreover, if Mr Barbeliuk had concerns about the appellant’s legal capacity, it is difficult to understand why he participated in the execution of the Enduring Power of Attorney dated 21 July 2022, which is signed both by the appellant and Mr Barbeliuk. Perhaps even more significantly, the formal document contains a certificate under s 19 of the Powers of Attorney Act 2003 (NSW), signed by a solicitor/barrister and dated 21 July 2022. It certifies inter alia that “[t]he principal [i.e., the appellant] appeared to understand the effect of this power of attorney”. This relatively recent document sits uncomfortably with the claim that the appellant is currently under legal incapacity.

  5. The issue of the appellant’s legal capacity is, of course, also raised in ground 2 of the three notices of appeal in the present proceedings, but that claim alone does not demonstrate that he in fact lacks legal capacity. It is merely an unsubstantiated assertion.

  6. Mr Barbeliuk submitted that the appellant’s case was “identical” to the circumstances in Smilevska v Smilevska [2015] NSWSC 1794. There, Slattery J was satisfied on the evidence before his Honour that a 95 year old woman who was residing in a nursing home lacked legal capacity and that, despite there being a power of attorney which otherwise would be adequate for litigation to be conducted on behalf of the woman, nevertheless it was appropriate to appoint a tutor (see at [36]). The proceedings were stayed until a tutor was appointed.

  7. Contrary to Mr Barbeliuk’s submission, the circumstances in that case are far from identical to the case here. In concluding that the woman was under a legal incapacity (and after noting at [28] that this is “always a task, and time, specific matter”), his Honour emphasised that the Court had had the benefit of observing the woman for almost two hours during a hearing conducted at her nursing home (see at [29]). Thus the absence of medical evidence was not fatal in those circumstances.

  8. Moreover, in tentatively finding that the daughter and son-in-law of the relevant person were suitable to be appointed as tutors, his Honour had before him evidence which was far more extensive than is the case here. Both the attorneys had been managing the person’s affairs under a power of attorney since 2011. Both consented to being appointed as tutors. Justice Slattery was also satisfied that neither of them was a person who had adverse interests to the person under legal incapacity.

  9. For reasons explained above, the situation is very different here. The Court has no evidence regarding Mr Greene’s personal circumstances, nor any consent from him that he is willing to act as tutor. Moreover, given the complexity of the proceedings in which the appellant is involved, this seems to be a very strong case to not dispense with the requirement that a tutor be assisted by a solicitor. I will now elaborate on some of those matters.

  10. The relevant provisions of the UCPR make clear that a person may only be appointed a tutor if they have consented to undertake that role and the person does not have any interest in the proceeding in conflict with the person under legal incapacity. The Court has no information regarding these matters in relation to Mr Stuart Greene that would allow the Court to determine whether he is a suitable person to be a tutor (assuming, contrary to the above, that the threshold requirement of legal incapacity was established).

  11. The total absence of any evidentiary material relating to Mr Greene personally is highlighted even further by the fact that the Court is also asked by the appellant to dispense with the requirement that the tutor act without a solicitor being involved in the litigation. No appropriate basis has been established for the Court to take the course of appointing Mr Greene as tutor as no consent has been filed, and Mr Greene has not established his disinterest (see, in contrast, Porter v Lee [2010] NSWSC 998) (see r 7.18(5) of the UCPR).

  12. For all these reasons, the Tutor Motions will be dismissed, with costs. In the event that appropriate medical evidence is obtained which establishes that the appellant is under legal incapacity (and the other relevant requirements are addressed), appropriate steps can be taken to have the matter considered by this Court.

The appellant’s other notices of motion

(a) Stay Motions

  1. The principles which guide the issue of whether there should be a stay, specifically in relation to writs seeking to enforce judgment debts, were succinctly described by Barrett AJA in Macquarie International Health Clinic Pty Limited v Sydney Local Health District [2019] NSWCA 281 at [4]:

The principles relevant to such a stay application are set out in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; see also Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383. Prima facie, the successful party is entitled to the benefit of the judgment obtained unless the unsuccessful party shows some positive reason why that position should be disturbed. Four questions need to be addressed in that connection.

  1. Those four questions posed by Barrett AJA are:

  1. Whether the appeal is reasonably arguable and whether there are serious questions to be debated (at [5]).

  2. Whether there is a risk that the appeal will be rendered nugatory if the appellant is successful but a stay has not been in place (at [7]).

  3. Should a stay be granted, considering the balance of convenience (or balance of hardship or prejudice) and in comparing the positions the parties will respectively occupy if a stay is granted or a stay is not granted (at [8]).

  4. What is the amount and significance of the judgment subject to appeal (at [14]).

  1. In Woollard v Australia and New Zealand Banking Group Ltd [2016] NSWCA 258, in declining to grant a stay, Meagher JA noted at [7]:

In an application to stay execution of a judgment pending appeal the applicant must demonstrate a proper basis for a stay that will be fair taking account of the competing interests and rights of the parties. Ordinarily that requires that the Court make a preliminary assessment as to whether there are arguable grounds of appeal: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 695.

  1. In dismissing the stay application in Gabrielle v Abood [2022] NSWCA 250, Macfarlan JA noted at [6]:

Although an applicant for a stay does not have to establish “special or exceptional circumstances”, he or she must demonstrate “a reason or an appropriate case to warrant the exercise of discretion in his [or her] favour” (Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694). In light of the weakness of the proposed appeal and the apparent absence of prospective prejudice to the applicant, I do not consider that that has been demonstrated.

  1. Applying those principles, I am not persuaded that the proceedings in the Common Law Division (particularly the enforcement of the judgment debts) should be stayed. The respondents are entitled to the fruits of their success which, as noted above, involve significant sums awarded as damages. On a preliminary assessment, I consider that the grounds of appeal in the three appeals are relatively weak. Nothing has been put before the Court to substantiate the serious allegation that the solicitor appearing for the appellant below was incompetent. I have explained why there is insufficient material to support the claim that the appellant was under a legal incapacity. It has not been demonstrated, even on a prima facie basis, why the three trial judges failed to give adequate or sufficient reasons or make sufficient inquiries into the appellant’s alleged legal incapacity. There is nothing to suggest that the issue was even raised below.

  2. As to proposed ground 3, and the claim that there are “other jurisdictional issues” and issues with how the trial was conducted, it is no answer to the appellant’s failure to comply with relevant requirements as to the contents of a notice of appeal, particularly r 51.18(e) of the UCPR and [19] of Practice Note No SC CA 1, to state that these matters will be “further articulated in submissions”.

  3. Nor has any material been provided to support the ground of appeal relating to the appellant’s bankruptcy and the trial judges’ conduct of the proceedings in respect of that matter. This ground also fails to comply with r 51.18(e) of the UCPR and [19] of the Practice Note. It is evident that the appellant voluntarily filed for bankruptcy in or around May 2021, which is around the time when AA commenced proceedings in the Common Law Division seeking damages. As noted elsewhere (see [89] below) the only creditor in the petition was Mr Barbeliuk to whom it was said the appellant owed $3,400,000. Evidently, the bankruptcy was subsequently annulled pursuant to s 153A of the Bankruptcy Act 1966 (Cth) when the trustee was satisfied that all the bankrupt’s debts had been paid in full.

  4. As to the claims that the trial judges erred in finding that the appellant’s actions caused the plaintiffs’ loss and damage, those claims are barely arguable having regard to the comprehensive reasons for judgment in all three proceedings below. Moreover, this ground of appeal also fails to comply with r 51.18(e) of the UCPR and [19] of the Practice Note.

  5. Finally, nothing has been presented to indicate that the various awards of damages were manifestly excessive. Moreover, this ground of appeal also fails to comply with r 51.18(e) of the UCPR and [19] of the Practice Note. It should also be noted that White JA rejected the claim of manifestly excessive damages in the previous PP appeal at [15].

  1. It has not been suggested that the appeals will be rendered nugatory if the appellant succeeds but no stay is granted. I also consider that the balance of convenience favours the respondent and that there should not be any further delay in executing the judgments.

  2. For all these reasons, and based upon the submissions and materials before me, the appellant’s Stay Motions will be dismissed, with costs.

  3. As noted above, the issue of the future course of the enforcement proceedings will return to the Common Law Division on 23 June 2023. It will be a matter for the relevant judge to determine how those proceedings should proceed, based upon the submissions and materials presented.

(b) Fresh Evidence Motions

  1. It is unclear which fresh evidence is sought to be adduced under these motions. In any event, it is preferable that the hearing of those motions be deferred to the hearing of the appeals. One good reason for that course is that the motions may prove to be moot if the appellant fails to meet any security for costs orders in the appeals.

(c) Amended Notices of Appeal Motions

  1. As the respondents point out, these motions must be dismissed because no proposed amended notices of appeal have been provided to the Court. In those circumstances, the motions are entirely academic. These motions will be dismissed, with costs.

The respondents’ motions

(a) Dismissal Motions

  1. For the reasons given by Handley JA in Wall v Wall [1994] NSWCA 336, the Court is generally reluctant to have an appeal summarily dismissed or a notice of appeal struck out, rather than adjourn such claims to be dealt with at the hearing of the appeal:

As I indicated at the outset of these proceedings, the court does not encourage applications for summary dismissal or stay on the grounds that the appeal is vexatious, nor does it encourage procedural applications directed to striking out some, but not all, of the grounds of appeal. The Court’s experience is that applications of this kind normally take up a substantial amount of court time, result in substantial costs being incurred, and that, in, each case, the time and the costs incurred represent a substantial part of the time and costs that would be incurred in the full hearing of the appeal. Accordingly, the Court’s practice for many years has been to adjourn motions of this kind until the hearing of the appeal because the court that hears the appeal will be in a better position to deal with such motions. Accordingly, I order that the notice of motion of 3 December insofar as it seeks relief claimed in prayers 1 and 2, be adjourned to the hearing of the appeal.

  1. The preferable course is to stand over the Dismissal Motions to the hearing of the appeals. I understood Mr Andrews to accept that this was the appropriate course.

(b) Security for Costs Motions

  1. AA relied upon an affidavit dated 30 March 2023 by Thomas Felizzi, a Senior Associate at the respondents’ law firm. Affidavits along broadly similar lines were relied upon by the other two respondents. In the DD v Lewis appeal, there is an affidavit dated 31 March 2023 by Laura Sue Flanagan, who is an Associate at the same law firm. In the DD v PP appeal, reliance was placed on an affidavit dated 28 March 2023 by Robert Andrew Algie, a partner at that law firm.

  2. There was a substantial overlap in the contents of the three affidavits, much of which was devoted to a summary of the background of the respective proceedings. In support of AA’s application for security for costs, Mr Felizzi deposed that the appellant had filed for bankruptcy by way of a debtor’s petition in around May 2021. A trustee of the bankrupt estate was appointed on 11 May 2021. The basis for the proposed bankruptcy was said to be the appellant’s “Excessive borrowing/credit” and “Unemployment”. Mr Mark Barbeliuk was listed as the only creditor and was said to be owed $3,400,000.00. Mr Felizzi noted that the Enduring Power of Attorney is dated 21 July 2022 and was apparently executed by the appellant at a time after it is now alleged that he was incapacitated.

  3. Mr Felizzi gave evidence concerning real property searches undertaken by him, including that the appellant is the registered proprietor of a property situated in San Souci. He noted that, in mid-November 2022, orders were made by the Supreme Court for a Writ to issue which authorised the Sheriff to levy on the appellant’s property the judgment debt arising from AA’s successful damages claim ($218,229.00 plus interest etc.). Mr Felizzi deposed to other matters relating to the Writ, including AA’s application in December 2022 for an order to enable the Sheriff forcefully to enter the appellant’s premises in order to execute the writ. That motion was listed for hearing in the Supreme Court on 23 March 2023 at which time Yehia J adjourned the matter.

  4. Mr Felizzi noted two changes in the appellant’s legal representation in November 2022 and February 2023 respectively.

  5. Mr Felizzi deposed that the appellant’s bankruptcy application disclosed that the appellant owned five vehicles valued at approximately $46,000 and that the San Souci property was valued at $3,000,000. Mr Felizzi said that no portion of the judgment debt in favour of AA has yet been satisfied.

  6. Finally, Mr Felizzi deposed that his best estimate of the legal expenses which AA will incur if the appeal proceeds total $29,700.00 for three days (inclusive of GST and comprising preparation and attendance at hearing by a senior junior counsel and a Senior Associate).

  7. Ms Flanagan gave evidence as to background matters in the DD v Lewis appeal as well as to matters relating to the appellant’s property. She deposed to her client having obtained orders in November 2022 for a Writ of Levy to issue authorising the Sheriff to levy on the appellant’s property the judgment debt in the amount of $1,609,529.00 plus interest etc. She referred to a motion filed on 6 December 2022 seeking an order to enable the Sheriff forcefully to enter the San Souci property in order to execute the Writ, which motion was listed for hearing in the Supreme Court on 23 March 2023. As in the case in the AA proceedings the hearing of the motion was adjourned by Yehia J and will return to the Common Law Division on 23 June 2023.

  8. Ms Flanagan gave evidence similar to that of Mr Felizzi regarding the appellant’s assets and bankruptcy. Ms Flanagan deposed that, on 19 October 2022, she was informed by solicitors acting for the trustee of the appellant’s bankrupt estate that the bankruptcy was to be annulled pursuant to s 153A of the Bankruptcy Act, which had the effect of transferring the control of the property back to the appellant.

  9. Ms Flanagan then noted that no portion of the judgment debt obtained by Mr Lewis had been satisfied under any other writ of execution, garnishee order or charging order issued by the Court.

  10. Ms Flanagan gave evidence concerning the relationship between the appellant and Mark Barbeliuk, including reference to the fact that they had taken many overseas trips together, particularly to the USA; that Mr Barbeliuk has resided at the appellant’s San Souci property since the appellant commenced his term of imprisonment in November 2012 and that Mr Barbeliuk was listed as a creditor in DD’s debtor’s petition.

  11. Ms Flanagan’s best estimate of Mr Lewis’s additional legal expenses in the event that the appeal were to proceed and be heard over three days was a total of $30,500.00 (inclusive of GST and comprising fees of senior junior counsel and an Associate solicitor).

  12. In his affidavit, Mr Algie deposed to similar matters relating to the background of the proceedings involving PP. One notable difference in his affidavit relates to the matters concerning the appellant’s earlier appeal proceedings. A notice of appeal was filed on 23 February 2022 against the orders made by Cavanagh J. The matter came before White JA on 27 May 2022, who, on that day, ordered the appellant to give security for costs by 31 August 2022 in the amount of $32,000 (inclusive of GST) and that the proceeding be stayed until such security was given (DD v PP [2022] NSWCA 98).

  13. On 5 September 2022, the appellant’s then legal representative agreed to the PP appeal being dismissed without the need for a formal relisting of the matter on the basis that there “is no appetite to post the security and to run the appeal at this time”. Thus, on 5 September 2022, the appellant’s previous appeal involving PP was dismissed (in effect by consent) with costs.

  14. Mr Algie’s affidavit does not attempt to estimate PP’s future legal costs of the appeal, yet the motion seeks such an order. Mr Andrews submitted, however, that it was open to the Court to act take into account the fact that White JA previously ordered the appellant to give security for costs to PP, as described above.

Some relevant principles

  1. Rule 51.50(1) of the UCPR provides that: “In special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal”. Many of the relevant principles are helpfully summarised by Kirk JA in Brown v King [2022] NSWCA 75 at [7]-[10]:

In an oft-cited passage in Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247, at [18], Basten JA set out six principles governing such applications for security for costs (with Ipp JA relevantly agreeing at [1] and Hoeben JA agreeing at [40]). These principles were derived from the Court’s earlier decisions in Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 and Porter v Gordian Runoff Ltd [2004] NSWCA 171. They are as follows:

(1)    no order for security should be made in the absence of “special circumstances”;

(2)    consideration of what may constitute special circumstances should not be fettered by some general rule of practice;

(3)    impecuniosity, without more, will usually be insufficient;

(4)    an order may be appropriate if the appeal is shown to be hopeless, unreasonable or of an harassing nature;

(5)    where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made, and

(6)    the subject matter of the appeal, including an issue as to the liberty of the individual, or a public interest may provide a reason for not imposing a security order which would stifle the continuation of the appeal.

Basten JA said at [19] of Preston that “[s]ome of these factors, particularly the last two, may better be seen as influencing the exercise of the discretion, rather than as potential ‘special circumstances’, engaging the power”. I agree. The existence of “special circumstances” is a necessary, but not necessarily sufficient, condition of the exercise of the power. When such circumstances exist, the Court then has a discretion to order security for costs, in such sum as it sees fit, taking account of all relevant matters.

As to the exercise of the discretion, McHugh J said the following of such a power in P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321; [1991] HCA 36, at 323:

“To make or refuse to make an order for security for costs involves the exercise of a discretionary judgment. That means that the court exercising the discretion must weigh all the circumstances of the case. The weight to be given to any circumstance depends not only upon its intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed. A circumstance which may have very great weight when only two or three circumstances have to be weighed may be of minor significance when many circumstances have to be weighed.”

Matters established to be “special circumstances” are likely to weigh in favour of the application when considering the exercise of the discretion. Matters militating against ordering security might not be relevant to assessing whether or not special circumstances exist, but will be taken into account in exercising the discretion. Thus, for example, special circumstances may be shown to exist but the Court might decline to order security because, for example, to do so would unduly stultify the appeal, taking account of the nature of the issues at stake (as raised by the fifth and sixth factors identified above).

  1. The respondents submitted that the following matters constituted “special circumstances”:

  1. Each of the appeals was incapable of being argued;

  2. The appellant is impecunious and is apparently unable to meet any adverse costs order in circumstances where his assets are valued at slightly more than $3,000,000 and (because of the annulment of his bankruptcy under s 153A of the Bankruptcy Act), it should be presumed that the appellant has repaid the alleged debt of $3,400,000 to Mr Barbeliuk.

  1. For the following reasons I consider that special circumstances exist in each of the three proceedings. First, consistently with the approach taken by White JA in DD v PP [2022] NSWCA 98, it is relevant to have regard to the fact that on 11 May 2021, the appellant became bankrupt on his own petition. Although the bankruptcy has now been annulled, the appellant’s debtor’s petition disclosed assets as outlined at [92] above, and disclosed that Mr Barbeliuk was the only creditor identified (who was said to be owed $3,400,000). These matters cast real doubt on the appellant’s capacity to bear the respondents’ costs in the event that his appeals are unsuccessful.

  2. Secondly, there is the fact that all three judgment debts remain outstanding, and the appellant has made no offer to pay any money into Court in partial satisfaction.

  3. Thirdly, in the PP appeal, as noted at [99] above, an earlier appeal was dismissed, with the appellant’s apparent consent, when he failed to meet an earlier security for costs order. This presents a live issue as to whether the latest appeal in relation to PP amounts to an abuse of process. Having regard to the relevant principles identified in cases such as Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28, there is a strong argument that this appeal is an abuse of process.

  4. Fourthly, there is the issue of whether the appeals are reasonably arguable. For the reasons given above, I consider that they are not.

  5. Finally, the appellant has provided no material which would support a finding that the effect of ordering him to pay security for costs in each of the three appeals would have the effect of stultifying those appeals, nor is there any other reason why the discretion to order security for costs should be exercised adversely to the respondents.

  6. As noted above AA seeks security in the sum of $29,700.00 (GST inclusive) on the basis of a three day hearing involving counsel and at least one solicitor. This is said to relate to a three day hearing. I understand that estimate to be of the total actual costs of a three day hearing as opposed to costs that would be recoverable on the ordinary basis. Taking that into account and on the basis of the material before me, I consider that security should be ordered in the amount of $20,000 (GST inclusive).

  7. As to the second appeal, Ms Flanagan’s best estimate of Mr Lewis’s costs for a three day appeal was a total of $30,500 (GST inclusive). Applying the same approach as I have to the estimate in AA appeal, I consider that the appropriate quantum of security is also $20,000 (GST inclusive).

  8. Finally, as to the PP appeal, I accept Mr Andrews’ submission that I should be guided by the earlier security for costs order made by White JA in the previous PP appeal. That estimate is somewhat higher than the estimates in the other appeals, but I note that there is an additional ground of appeal in the PP appeal compared with the other two appeals. It may also be noted that the reasons for judgment of Cavanagh J are lengthier than the other primary judgments, perhaps reflecting increased complexity in the PP proceeding. Accordingly, I consider that the appropriate quantum of security is $32,000 (GST inclusive).

  9. I accept Mr Andrews’ submission that the appellant should have two months (i.e. eight weeks) from today to provide security for costs in each of the three matters and that the appeal proceedings in this Court should be stayed until such security is provided. I will also grant liberty to the respondent in each appeal to apply after 17 August 2023 for an order that the appeal be dismissed if the security has not been provided by that date.

  10. It is also appropriate to have each of the appeals listed for directions before the Registrar as soon as practicable after 17 August 2023.

  11. Accordingly, I will make the following orders as to security for costs in each appeal:

  1. The appellant provide security for the respondent’s costs of the appeal in the amount of (including GST) of $20,000 (AA appeal), $20,000 (Lewis appeal), $32,000 (PP appeal) by payment into Court or provision of security to the satisfaction of the Registrar, such security to be provided on or before 17 August 2023.

  2. Order that the proceedings in this Court be stayed until such security is given.

  3. Liberty to the respondent to apply after 17 August 2023 for an order that the appeal be dismissed if the security ordered has not been provided by 17 August 2023.

  4. The appeal to be listed before the Registrar for directions as soon as practicable after 17 August 2023.

Conclusion

  1. For all these reasons I will make the following orders in each appeal.

  1. The application for an adjournment is dismissed, with costs.

  2. The Tutor Motions are dismissed, with costs.

  3. The Stay Motions are dismissed, with costs.

  4. The Fresh Evidence Motions be adjourned to the hearing of the appeal.

  5. The Amended Notices of Appeal Motions are dismissed, with costs.

  6. The Dismissal Motions be adjourned to the hearing of the appeal.

  7. In the DD v AA appeal:

  1. The appellant provide security for the respondent’s costs of the appeal in the amount of $20,000 (GST inclusive) by payment into Court or provision of security to the satisfaction of the Registrar, such security to be provided on or before 17 August 2023.

  2. Order that the proceedings in this Court be stayed until such security is given.

  3. Liberty to the respondent to apply after 17 August 2023 for an order that the appeal be dismissed if the security ordered has not been provided by 17 August 2023.

  4. The appeal to be listed before the Registrar for directions as soon as practicable after 17 August 2023.

  1. In the DD v Lewis appeal:

  1. The appellant provide security for the respondent’s costs of the appeal in the amount of $20,000 (GST inclusive) by payment into Court or provision of security to the satisfaction of the Registrar, such security to be provided on or before 17 August 2023.

  2. Order that the proceedings in this Court be stayed until such security is given.

  3. Liberty to the respondent to apply after 17 August 2023 for an order that the appeal be dismissed if the security ordered has not been provided by 17 August 2023.

  4. The appeal to be listed before the Registrar for directions as soon as practicable after 17 August 2023.

  1. In the DD v PP appeal:

  1. The appellant provide security for the respondent’s costs of the appeal in the amount of $32,000 (GST inclusive) by payment into Court or provision of security to the satisfaction of the Registrar, such security to be provided on or before 17 August 2023.

  2. Order that the proceedings in this Court be stayed until such security is given.

  3. Liberty to the respondent to apply after 17 August 2023 for an order that the appeal be dismissed if the security ordered has not been provided by 17 August 2023.

  4. The appeal to be listed before the Registrar for directions as soon as practicable after 17 August 2023.

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Decision last updated: 22 June 2023

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Most Recent Citation
AA v PD (No 2) [2023] NSWSC 945
Cases Citing This Decision

6

Doyle v AA; Doyle v Lewis; Doyle v Pp (No 3) [2023] NSWCA 281
DD v AA; DD v Lewis; DD v Pp (No 2) [2023] NSWCA 260
Sowmi v Master Electrical Services Pty Ltd [2024] NSWSC 176
Cases Cited

24

Statutory Material Cited

7

Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383
Brown v King [2022] NSWCA 75