De Varda and Tov-Lev v The Board of Directors of the Strathfield and District Hebrew Congregation Ltd

[2012] NSWSC 1377

Supreme Court

New South Wales

Medium Neutral Citation:	De Varda and Tov-Lev v The Board of Directors of The Strathfield and District Hebrew Congregation Ltd & Anor [2012] NSWSC 1377
Hearing dates:	2 and 8 November 2012
Decision date:	15 November 2012
Jurisdiction:	Equity Division - Corporations List
Before:	Black J
Decision:	Second Further Amended Summons and Second Further Amended Statement of Claim filed 6 November 2012 struck out. Notice of Motion filed 11 October dismissed. Parties to serve and send to Associate to Black J their respective draft orders in respect of costs and short submissions limited to 6 pages in respect of costs within 7 days. Matter listed for judgment as to costs at 10am on 28 November 2012.
Catchwords:	PRACTICE AND PROCEDURE - Extension of time - Application for extension of time for compliance with previous orders made in proceedings - Application for leave to file Further Amended Summons and Further Amended Statement of Claim - Application for stay of previous costs orders until determination of proceedings - Whether applications should be granted in circumstances where proceedings have been dismissed.
Legislation Cited:	- Civil Procedure Act 2005 (NSW) ss 56, 56-58, 57, 58, 58(2), 91, 98 - Consumer, Traer and Tenancy Tribunal Act 2001 (NSW) s 68 - Uniform Civil Procedure Rules 2005 (NSW) Pt 12 r 10, rr 1.12, 13.4, 13.4(1) - Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	- Allianz Australia Insurance Ltd v Bluescope Steel Ltd [2012] NSWCA 240 - Bailey v Marinoff [1971] HCA 49; 125 CLR 529 - Briginshaw v Briginshaw (1938) 60 CLR 336 - Bowen v Hickey (1958) 78 WN (NSW) 820 - FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) HCA 13; 165 CLR 268 - Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 - Idoport Pty Ltd v National Australia Bank Ltd [2006] NSWCA 202 - Milne v Attorney-General (Tasmania) (1956) 95 CLR 460 - Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 - Phillip Morris Ltd v Attorney-General (Vic) [2006] VSCA 21 - Rogers v The Queen (1994) 181 CLR 251 - Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 11 FCR 229 - Seiwa Australia Pty Ltd v Seeto Financial Services Pty Ltd (No 2) [2010] NSWSC 118 - Seltsam Pty Ltd v Energy Australia [1999] NSWCA 89 - Sirius Shipping Corporation v The Ship Sunrise & Ors [2007] NSWSC 766 - Skywak v Visnic [No 2] [2010] NSWSC 374
Category:	Interlocutory applications
Parties:	Mr J. de Varda (First Plaintiff) Rabbi Dr S. Tov-Lev (Second Plaintiff) The Board of Directors of The Strathfield and District Hebrew Congregation Ltd comprising of 9 members (First Defendant) John Joseph Lowbeer (Second Defendant) The Strathfield and District Hebrew Congregation Limited (Third Defendant)
Representation:	Counsel: J. Needham SC (First and Third Defendants, mentioned Second Defendant) Solicitors: Mr J. de Varda (in person - First Plaintiff) Rabbi Dr. S. Tov-Lev (in person - Second Plaintiff) David Austin (First and Third Defendants - mentioned Second Defendant)
File Number(s):	11/212996

Judgment

1. By Notice of Motion filed 11 October 2012, two of the nine persons named as the First Plaintiffs in these proceedings, Mr Joseph de Varda and Mr David Cliffe, and the Second Plaintiff, Rabbi Dr Samuel Tov-Lev, seek orders extending the time for compliance with certain orders made by Hallen AsJ on 4 November 2011, about 12 months ago, for an application for leave to file amended pleadings in the proceedings; that the Plaintiffs be granted leave to file a Further Amended Summons and Further Amended Statement of Claim; and that all previous costs orders be stayed until the determination of the proceedings.

1. The First Defendant to the proceedings is several persons who claim to be the board of directors of the Third Defendant, The Strathfield and District Hebrew Congregation Limited ("Congregation"). The persons comprising the First Plaintiff also claim, or previously claimed, to occupy that position. By Notice of Motion filed on 24 October 2012, the First Defendant seeks an order that the Plaintiffs' Notice of Motion be dismissed pursuant to UCPR r 13.4(1). That Rule provides for the dismissal of any claim for relief in proceedings that are frivolous or vexatious, or where no reasonable cause of action is disclosed or the proceedings are an abuse of the Court's process. It is unlikely to be necessary to determine the Defendants' Notice of Motion if the Plaintiffs' Notice of Motion fails on its merits.

History of the proceedings

1. It is first necessary to set out something of the history of the proceedings. It appears that, in late 2010, the First Defendant advised Rabbi Tov-Lev of the termination of his role as Rabbi of a Synagogue at Strathfield conducted by the Congregation and, in October 2011, Rabbi Tov-Lev was served with a notice of termination of tenancy in respect of the occupancy of a house associated with the Synagogue.

1. The Proceedings were commenced by Summons in June 2011. A Statement of Claim was then filed and an Amended Statement of Claim was filed in October 2011. The Plaintiffs sought a wide range of relief in the proceedings, including that the Congregation and its accountant produce for forensic examination financial accounts and records; a mandatory order that the Synagogue at Strathfield be preserved against sale and/or destruction and remain open for religious services; an order that Rabbi Tov-Lev have the rights to carry out his duties under the jurisdiction of Jewish religious law; and relief for oppression. The relief sought was based, inter alia, on a claim that a purported election on 1 May 2011 was contrary to the articles of association of the Congregation and there were various other deficiencies with an annual general meeting on that date.

1. On 4 November 2011, Hallen AsJ ordered that the Amended Statement of Claim be struck out and directed that no further Statement of Claim be filed without the consent of each Defendant or the leave of the Court and that any application for leave be filed on or before 1 December 2011. His Honour also ordered the Plaintiffs to pay the Defendants' costs of the motion. Hallen AsJ recorded in his judgment that Counsel for the Plaintiffs had conceded before him that the Amended Statement of Claim was bad in form, and his judgment indicated that he had reached the same view on the merits. The retainer for Counsel for Mr de Varda and Rabbi Tov-Lev was terminated by them during the course of the hearing before Hallen AsJ on that date.

1. On 1 December 2011, the Plaintiffs filed a Notice of Motion seeking to set aside the orders of Hallen AsJ. On 9 December 2011, Bergin CJ in Eq directed that that Notice of Motion not proceed until the Plaintiffs had obtained the services of a lawyer for the purpose of assisting them in the future conduct of the proceedings.

1. By 15 February 2012, Mr de Varda (who was seeking to represent the other persons constituting the First Plaintiff) and Rabbi Tov-Lev were again no longer represented by legal representatives in the proceedings. On 15 February 2012, Nicholas J dismissed the motion seeking to set aside the Order made by Hallen AsJ striking out the Amended Statement of Claim. On 16 February 2012, Nicholas J dismissed a motion filed by Rabbi Tov-Lev seeking referral of the proceedings to the Director of Public Prosecutions and ordered the payment of the costs of the motion on an ordinary basis. (As I will note below, Mr de Varda similarly sought referral of the proceedings to the Director of Public Prosecutions in the course of submissions before me.) Nicholas J granted leave for the Defendants to make an application that costs be assessed other than on an ordinary basis, by 4pm on 24 February 2012. No such application was made and the order for costs on the ordinary basis took effect. Nicholas J also made orders that the proceedings be dismissed, by reason of circumstances including the nine persons constituting the First Plaintiff's failure to obtain and continue to retain legal representation. His Honour also made an order under UCPR Pt 12 r 10 that, should any of the Plaintiffs commence further proceedings against the Defendants on the same or substantially the same causes of action or for the same or substantially the same relief, then such proceedings be stayed until those costs were paid.

1. At this point, these proceedings had been dismissed. Section 91 of the Civil Procedure Act 2005 (NSW) provides that the dismissal of the proceedings would not prevent the Plaintiffs from bringing new proceedings or claiming the same relief, subject to the terms on which the dismissal was made, namely that new proceedings would be stayed pending the payment of costs for which the Plaintiffs were liable in respect of these proceedings.

1. On 27 February 2012, the Plaintiffs filed a Notice of Intent to appeal from the orders of Nicholas J. An application for leave to appeal may have been required, if the orders made by Nicholas J were properly characterised as interlocutory in character. In any event, the Plaintiffs did not proceed with any such appeal.

1. Proceedings were then brought by the Congregation in the Consumer, Trader & Tenancy Tribunal ("CTTT") seeking to terminate a tenancy under which Rabbi Tov-Lev occupied the house associated with the Synagogue. Rabbi Tov-Lev appears to have contested the validity of various decisions made or allegedly made by the Congregation in the proceedings before the CTTT. On 3 September 2012, the CTTT issued its decision terminating Rabbi Tov-Lev's tenancy. On 12 September 2012, Rabbi Tov-Lev applied for a rehearing under s 68 of the Consumer, Trader & Tenancy Tribunal Act. On 13 September 2012, the Chairperson of the CTTT stayed the order for possession of the premises and, on 28 September 2012, lifted that stay and dismissed the application for a rehearing.

1. On 11 October 2012, some two weeks after the dismissal of Rabbi Tov-Lev's application for a rehearing in the CTTT and some nine months after dismissal of these proceedings, Mr de Varda, Mr Cliffe and Rabbi Tov-Lev filed the notice of motion seeking the orders to which I referred above. The Plaintiffs were at that time represented by solicitors; those solicitors had ceased to act, in circumstances that are disputed, by the time the motion was listed before me. The possession order granted by the CTTT was apparently further stayed by the CTTT for a period, following the filing of the motion in this Court on 11 October 2012, but that stay later ceased to have effect.

1. It appears that steps were taken by the Sheriff in respect of the CTTT's order for possession of the house previously occupied by Rabbi Tov-Lev on 6 November 2012. On that date, an application initially made to my Associate by Mr De Varda concerning that matter was heard by the Common Law Duty Judge. When the matter was again listed before me on 8 November 2012, I made an order, by consent of the First Defendant, providing for the First Defendant to provide reasonable access by Rabbi Tov-Lev to that house to allow him to collect his personal documents and personal belongings on 9 November 2012.

Identity of the Applicants

1. With that background, I should now note several preliminary matters that arose in the course of the hearing before me.

1. Mr de Varda, Mr Cliffe and Rabbi Tov-Lev are no longer represented by solicitors. Mr Cliffe has not appeared in respect of the application, either when it was part heard on 2 November 2012 or on the second day of hearing on 8 November 2012. I declined leave for Mr de Varda to represent Mr Cliffe, because Mr de Varda is not a solicitor and I was concerned that such representation would expose Mr Cliffe to the risk of an adverse costs order in circumstances where it was unclear whether he was aware of or content to assume that risk. Accordingly, although the proceedings were commenced by nine individuals named as the First Plaintiff and Rabbi Tov-Lev as the Second Plaintiff, and the Notice of Motion was brought in the names of Messrs de Varda and Cliffe and Rabbi Tov-Lev, it is now pursued only by Mr de Varda and Rabbi Tov-Lev.

1. During the course of the hearing on 8 November 2012, Mr de Varda and Rabbi Tov-Lev contended that Mr Cliffe could not be present on that date because of illness. After I had reserved judgment, Rabbi Tov-Lev delivered to the Court a medical certificate dated 8 November 2012 stating that Mr Cliffe had attended a medical centre on that date because of migraine and was "medically unfit to attend work/school/university". It was unclear from that medical certificate whether the doctor who gave it was aware that it was to be relied on in these proceedings or had considered whether Mr Cliffe was fit to attend Court, as distinct from work, school or university. The medical certificate was not, in any event, properly in evidence.

1. Second, when the matter was first listed before me on 2 November 2012, Mr de Varda and Rabbi Tov-Lev indicated that they wished further to amend the Summons and Further Amended Statement of Claim that they sought leave to file, beyond the version which they had sought leave to file by the motion originally filed on 11 October 2012. I made orders on 6 November 2012 directing Mr de Varda and Rabbi Tov-Lev to provide any Further Amended Summons or Further Amended Statement of Claim which they seek leave to proceed with (emphasis added) to the Defendants by their solicitors and also to include them in a bundle of documents which I directed the parties to provide to me. That direction was not a grant of leave to file a Further Amended Summons or Further Amended Statement of Claim; to the contrary, it expressly referred to documents as to which Mr de Varda and Rabbi Tov-Lev sought leave to proceed with. An order granting leave to file the Further Amended Summons or Further Amended Statement of Claim was the substantive order sought in the motion, and could not be granted in proceedings which had previously been dismissed unless the Court was satisfied that those proceedings should be reopened and that the proposed Amended Summons and Proposed Further Amended Statement of Claim were in a form which warranted the grant of such leave.

1. Nonetheless, on 6 November 2012, each of Mr de Varda and Rabbi Tov-Lev filed documents titled Second Further Amended Summons and Second Further Amended Statement of Claim in the Registry that stated that they were amended pursuant to leave granted by the Court on 2 November 2012. That statement was not correct, since no such leave had been granted, and those documents should not have been filed. It remains necessary to determine, on the merits, whether leave should now be granted to file those documents. If that leave is not granted, they should be struck out to preserve the integrity of the Court's processes.

1. Third, Rabbi Tov-Lev and Mr de Varda sought a further adjournment in the course of the proceedings before me to permit the issue of subpoenas to numerous persons associated with the First Defendant to attend to give evidence. They submitted they had instructed their former solicitors to issue subpoenas to those persons to attend for cross-examination, those subpoenas had not been issued and those persons were not present in Court. I did not consider that a further adjournment for that purpose would be consistent with s 56 of the Civil Procedure Act, where, had those subpoenas been issued, it is unlikely the Court would have permitted examination (or cross-examination) as to the issues in the substantive proceedings, where the application before me is a narrower application as to whether Mr de Varda and Rabbi Tov-Lev should be permitted now to file amended pleadings.

1. Fourth, I have noted above that Nicholas J had previously dismissed a motion filed by Mr de Varda and Rabbi Tov-Lev seeking a referral of the proceedings to the Director of Public Prosecutions. No further order of the same kind was sought in the motion which was listed before me. However, allegations of misconduct were made in the course of oral submissions against numerous individuals and Mr de Varda and Rabbi Tov-Lev pressed for a referral of the proceedings to the Director of Public Prosecutions. During the course of oral submissions before me, submissions were made, inter alia, that minutes of meetings relied on by the Congregation in the CTTT were not a true record and the documents on which the Congregation relied in these proceedings were fabrications, and the matter should be referred to the Director of Public Prosecutions because of conduct constituting bribery, fabrication of documents and fraud. I do not consider that it would be appropriate, in an interlocutory application of this kind, to make findings of a character that would warrant a reference of a matter to the Director of Public Prosecutions. It is, of course, open to Mr De Varda and Rabbi Tov-Lev to make any approach to investigative or prosecutorial bodies that they consider appropriate.

The evidence and submissions

1. Mr de Varda and Rabbi Tov-Lev relied on affidavits of Mr de Varda affirmed 21 August 2011, 29 August 2011, 7 November 2012 and Rabbi Tov-Lev affirmed 21 August 2011 and 31 October 2012. They also relied on several other affidavits of persons who had originally been among the group of persons named as the First Plaintiff. In the interests of completing the matter within a reasonable time, the Defendants did not object to any part of those affidavits, while reserving their right to do so if they are relied upon in any subsequent proceedings. The vast majority of those affidavits and the submissions of Mr de Varda and Rabbi Tov-Lev related to the substance of the relief sought in the proceedings, seeking to demonstrate the impropriety and invalidity of the Defendants' conduct.

1. Mr de Varda's affidavit dated 21 August 2011 is directed to the merits of the underlying dispute in the proceedings and particularly a dispute as to the identity of the persons who are presently the Board of the Synagogue. The affidavit dated 29 August 2011 is directed to the same matter, and alleges, inter alia, that false and misleading information was provided by the Defendants, including the Congregation's auditor, to the Australian Securities and Investments Commission. Mr de Varda's affidavit dated 7 November 2012 is directed to subsequent events in relation to the dispute as to the validity of the annual general meeting held in May 2011. Rabbi Tov-Lev's affidavit dated 21 August 2011 is also directed to the underlying merits of the dispute and, in particular, contends that the Board of the Congregation has reached an improper decision to close the Synagogue. Rabbi Tov-Lev's affidavit dated 31 October 2012 sets out allegations that the Congregation relied on false documents in proceedings before the CTTT and also deals with the dispute as to the validity of annual general meetings held by the Congregation. Affidavits of the other persons constituting the First Plaintiff deal with the history of the Synagogue and concerns of those persons as to the closure of the Synagogue and the removal of Rabbi Tov-Lev. Mr Cliffe's affidavit also deals with circumstances relating to a flood insurance claim in respect of the Synagogue and suggests that the treatment of that claim involved the diversion of funds from the Synagogue to another entity.

1. The Defendants rely on an affidavit of their solicitor, Mr David Austin, dated 7 February 2012, dealing with the early history of the proceedings; an affidavit dated 7 November 2012 annexing documents that are identified as minutes of annual general meetings of the Congregation held on 1 May 2011, 19 February 2012 and 30 September 2012; and an affidavit dated 24 October 2012 providing an outline of the history of the proceedings in this Court and the CTTT.

1. The issue before me is not, ultimately, the merits of the claims made by the Plaintiffs in the proceedings, or whether the Plaintiffs or some of them should be entitled to pursue those claims, but whether they should be entitled to reopen these proceedings, and file amended pleadings in them, so as to pursue those claims in these proceedings without meeting the costs orders already made against them in these proceedings. At the commencement of substantive oral submissions before me on 8 November, I indicated several issues as to which I was likely to be assisted in submissions, including:

• any basis on which the proceedings previously dismissed by Nicholas J should be reopened and whether the Court was functus officio, in the sense that its duties had been completed and its authority exhausted;

• any significance of the fact that a notice of intention to appeal from the decision of Nicholas J had been filed by Mr de Varda and Rabbi Tov-Lev but that appeal had not been pursued;

• any significance of the time which had passed and/or the agitation of similar issues by Rabbi Tov-Lev in the CTTT;

• any basis on which the Court should vacate the costs orders already made in the proceedings; and

• any reason that the Court should, or should not, maintain the order made by Nicholas J that any new proceedings raising similar issues or seeking similar relief should be stayed unless the costs orders made in these proceedings were paid.

Whether the Court has jurisdiction to grant the orders sought by Mr de Varda and Rabbi Tov-Lev

1. I have considered whether the dismissal of the proceedings by Nicholas J means that the Court is functus officio in these proceedings and has no jurisdiction to make the orders sought.

1. In Bailey v Marinoff [1971] HCA 49; 125 CLR 529, which concerned the effect of a self-executing order providing for dismissal of an appeal, the majority of the High Court observed that the Court did not have power to vary an order after it had been drawn up. Barwick CJ observed (at 530):

"Once an order disposing of a proceeding has been perfected by being drawn up as a record of a Court, that proceeding apart from any specific and relevant statutory provision is at an end in that Court and is in its substance, in my opinion, beyond recall by that Court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a Court to have a power to reinstate a proceeding of which it has finally disposed."

1. In FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) HCA 13; 165 CLR 268, the High Court held that a predecessor of UCPR r 1.12 empowered the Court to extend the time for compliance after the period for compliance has expired, whether or not the proceedings were then pending and observed that that power was a broad remedial power to relieve against injustice. Wilson J, with whom Deane, Dawson and Brennan JJ agreed, observed that the discretion conferred by that Rule:

"... is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case."

Gaudron J noted (at 289-90) that:

"Although the rule that a Court may not vary a duly entered order which brings proceedings to a conclusion rests, at least in part, on the obvious desirability that litigation should be brought to an end, the converse of that rule viz that a Court of record may vary an order before the order is entered must rest on the notion that a Court is not functus officio whilst there remains any judicial function which may be performed in relation to a proceeding, even if it be only that of ensuring that the final order correctly records the meaning of the Court. ..."

Her Honour held that the Court had power to extend the time for compliance with the conditional order that had been made, as a conditional order for dismissal neither rendered the Court functus officio nor precluded the bringing of fresh proceedings.

1. In Seltsam Pty Ltd v Energy Australia [1999] NSWCA 89, Giles JA (with whom Priestley JA agreed) accepted that the inherent power of the Court would not permit the reinstatement of an appeal after it was dismissed, although distinguishing the position in respect of ancillary aspects of the proceedings. His Honour's reasoning was approved by the Court of Appeal in Allianz Australia Ltd v Bluescope Steel Ltd [2012] NSWCA 240 per Beazley JA at [53] (with whom Macfarlan JA agreed). Her Honour also noted (at [33]) that the result did not appear to depend on whether the order had been entered.

1. I note that, in Sirius Shipping Corporation v The Ship Sunrise & Ors [2007] NSWSC 766, followed in Seiwa Australia Pty Ltd v Seeto Financial Services Pty Ltd (No 2) [2010] NSWSC 118, Palmer J pointed to the policy of the law that there should be finality in litigation and noted that the general rule is that the Court has no power to set aside its own final judgment once it has been passed and entered. His Honour noted a qualification that that position was subservient to the requirement for a fair hearing and that the Court has an inherent jurisdiction to reopen proceedings and make substituted or additional orders. His Honour also noted (at [42]) that the jurisdiction to reopen proceedings "is always exercised with great caution and is never available where a claim has in fact been finally determined on the merits in accordance with the requirements of justice and what is sought is, in truth, a review of such a decision by way of appeal". His Honour's approach to the circumstances in which proceedings may be reopened may be wider than that adopted in the decisions to which I have referred above, at least if it were to be applied to reopening the principal relief sought in proceedings after their dismissal.

1. Even if the approach adopted in Sirius Shipping Corporation v The Ship Sunrise & Ors was open in respect of the principal relief sought in proceedings after their dismissal, I do not consider that the present case would fall within that approach. Notwithstanding the wide range of matters raised by Mr de Varda and Rabbi Tov-Lev in submissions, it seems to me that no failure to comply with fundamental requirements of justice has been established.

1. In particular, when the Amended Statement of Claim was struck out by Hallen AsJ, Mr de Varda and Rabbi Tov-Lev were afforded a hearing and an opportunity to file further pleadings, which they did not take up. Mr de Varda and Rabbi Tov-Lev then exercised a right of review before Nicholas J and were afforded a further hearing before his Honour. Mr de Varda and Rabbi Tov-Lev attacked the conduct of that hearing in oral submissions on the basis that the form of Amended Statement of Claim that was tendered before Nicholas J, as being the form of document that was before Hallen AsJ, had been "fabricated" by the solicitor for the First Defendant. This is, of course, a serious allegation and I would not reach such a finding other than in accordance with the approach noted in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. An Amended Statement of Claim filed 6 October 2011 is contained in the Court file and 2 pages of that document are in somewhat different form from the document also titled Amended Statement of Claim that was marked as an exhibit before Nicholas J. The remaining 12 pages of those documents are identical and the more likely explanation for the difference between those documents is human error in collating the document rather than fraud. It is apparent from the 12 pages of those documents that are identical that the pleading manifestly fails to comply with the requirement for a proper pleading. In particular, those documents contain numerous claims for relief which are scattered without apparent logic within that part of the Statement of Claim which ought to be pleading the material facts relied upon, and, to the extent that material facts are identified, this is typically done by way of particulars rather than by pleading them in a manner to which the Defendants could properly respond by way of defence. It would, in my view, have been impossible for the Defendants to file a coherent defence to the then Statement of Claim, given the manner in which it was structured, and that conclusion would have followed irrespective of any error in the two pages of that document in the exhibit placed before Nicholas J.

1. The dismissal of the proceedings by Nicholas J at that point was in my view not inconsistent with a just determination of the proceedings, in circumstances that Mr de Varda and Rabbi Tov-Lev had terminated their legal representatives' retainer; Mr de Varda who was not legally qualified was purporting to represent other individuals in a form of representative action; and there was no amended pleading before the Court. The effect of the orders made by Nicholas J did not prevent the Plaintiffs from bringing further proceedings agitating the matters in issue, but only required that they pay the costs incurred by the Defendants to date before they did so. Those orders were, in my view, consistent with the requirement for the just, quick and cheap resolution of the matters in dispute under s 56 of the Civil Procedure Act.

1. The Plaintiffs had an opportunity for further review by pursuing an application for leave to appeal and, as I noted above, Mr de Varda and Rabbi Tov-Lev filed a notice of intention to appeal but, for whatever reason, did not pursue that appeal. Rabbi Tov-Lev has also had, and has exercised, an opportunity to agitate the matters as to the validity of corporate actions of the Congregation in proceedings before the CTTT, which have been determined against him.

1. It is also important to recognise that the question of justice in this case is not to be judged wholly from the perspective of Mr de Varda and Rabbi Tov-Lev but also from the perspective of the Defendants who have now been party to proceedings in this Court for a considerable period, as well as to proceedings in the CTTT determining similar issues in their favour, and from the perspective of the public interest, which requires not only a just result but also an expeditious and cost effective result, and where the finality of litigation is a significant factor.

1. The principles to which I have referred above seem to me to have the result in this case that, absent the order for dismissal by Nicholas J, the Court would have had the power to extend the time for compliance with the order made by Hallen AsJ, although there are powerful discretionary reasons why that power would not have been exercised. However, the order made by Nicholas J for dismissal of the proceedings was not a conditional order, but a final one; although the Plaintiffs foreshadowed an appeal against it, they did not bring that appeal; and, in that situation, it seems to me that there is no remaining judicial function to be performed in relation to the substantive relief sought in the proceedings. This is not a question merely whether the Court has power to extend a period of time, after that period of time has elapsed, but a question whether the Court has power to continue proceedings after they have been dismissed on a final and unconditional basis and the order for dismissal of the proceedings has been entered. While the proceedings remain on foot for ancillary purposes, such as the assessment of costs and the enforcement of orders, and in appropriate circumstances for dealing with cross-claims in the manner considered in Seltsam Pty Ltd v Energy Australia and Allianz Australia v Bluescope Steel Ltd, they are not on foot so far as any determination of the principal claims which have already been dismissed. This is sufficient to require the dismissal of the Notice of Motion filed by Mr de Varda and Rabbi Tov-Lev.

Whether an extension of time should be given or leave granted to file an Amended Summons and Amended Statement of Claim

1. As noted above, the Notice of Motion by Mr de Varda and Rabbi Tov-Lev seeks orders extending the time for compliance with certain orders made by Hallen AsJ on 4 November 2011 to 11 October 2012 (or, presumably, a later date) and that the Plaintiffs be granted leave to file a Further Amended Summons and Further Amended Statement of Claim. Had I not reached the findings that I have set out above in respect of the Court's jurisdiction, I do not consider that the Court could have made those orders.

1. The Court's discretion whether to make the orders sought is to be exercised having regard to ss 56 - 58 of the Civil Procedure Act 2005 (NSW). Section 56 provides that the overriding purpose of the Act and the rules of Court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings. Section 57 requires that proceedings are to be managed having regard to the just determination of the proceedings, the efficient disposal of the Court's business, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties. Section 58 requires the Court, in determining whether to make an order for the management of proceedings, including any order of a procedural nature, to seek to act in accordance with the dictates of justice. Section 58(2) provides that the Court must have regard to the provisions of ss 56 and 57 of the Civil Procedure Act in determining the interests of justice in a particular case, and specifies a number of other matters to which the Court may have regard in exercising that discretion. It is important to bear the purpose of these provisions firmly in mind. As Allsop P observed in Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [37]:

The Civil Procedure Act, ss 56-61 brings about a new statutory balance among various factors in litigation including court and party efficiency and the delivery of individual justice. Delay and case backlog are not merely factors affecting the public cost of delivering justice, they corrode the ability of the courts to provide individual justice. ... The reforms that have taken place under the Civil Procedure Act and the evident attempt by the Local Court to ensure efficiency of service for the public can thus be seen not merely to reflect worthy governmental and judicial efforts for efficiency, but also to be vital for the provision of timely individual justice. To these salutary ends significant powers of case management have been placed in the hands of judicial officers which, if exercised, can often be seen to have sharp, and sometimes detrimental effects on the claims of parties.

At the same time, as Allsop P observed at [47], the terms of s 58 (and the consequential importance of ss 56 and 57) should be borne in mind when exercising these case management powers.

1. I would not have exercised the Court's discretion to extend the time for compliance with Hallen AsJ's orders in respect of the filing of further amended pleadings by nearly 11 months. I do not consider that such an order would have been consistent with the just, quick and cheap resolution of the real issues in dispute required by s 56 of the Civil Procedure Act. Conversely, such an order would not be appropriate where it is already open to the Plaintiffs (or some of them) to pursue their claims in new proceedings, once they have met their obligations to the Defendants in respect of the costs orders made in the existing proceedings, and the substantive effect of the order sought would be to allow them to avoid that liability.

1. In my view, there is good reason to preserve the effect of the order made by Nicholas J limiting the Plaintiffs' ability to commence further proceedings without meeting the costs orders made in these proceedings. In Rogers v The Queen (1994) 181 CLR 251 at 286-288, McHugh J pointed to the Court's inherent power to prevent its procedures being abused, including where the "use of the court's procedures is unjustifiably oppressive to one of the parties". In Idoport Pty Ltd v National Australia Bank Ltd [2006] NSWCA 202 at [104]ff, Beazley JA (with whom Mason P and Ipp JA agreed) referred to Bowen v Hickey (1958) 78 WN (NSW) 820 in respect of the Court's inherent jurisdiction to stay "a second action in the same cause and against the same defendant until the costs of the first action are paid". In that case, her Honour pointed to the identity of issues and the unsatisfied previous costs order against Idoport and observed (at [110]) that:

"it would be both unjustifiably oppressive to the respondents for the appellant to be permitted to prosecute the present proceedings as well as bringing the administration of justice into disrepute" (at [110]).

Although the Idoport proceedings involved particular issues arising from the scale of those proceedings, the demands which they would have placed on the parties to them and the Court time which had been consumed in them and the present proceedings are much narrower in scope, I do not consider that the demands that these proceedings will have placed on the parties to them and the extent of Court resources that have been consumed by them are insignificant. In forming this view, I have had regard to the observation of Ormiston JA in Phillip Morris Ltd v Attorney-General (Vic) [2006] VSCA 21 at [146] that the principle that second proceedings may not be commenced where costs are unpaid may be relaxed in appropriate circumstances. I am also conscious that there has not been any "failure" on the part of the Plaintiffs to pay the relevant costs, since they are not obliged to do so until the assessment of those costs is completed: compare Sywak v Visnic [No 2] [2010] NSWSC 374 at [11].

1. There is also, in my view, a further compelling reason not to make an order for extension of time or to grant leave that would now permit Mr de Varda and Rabbi Tov-Lev to file the Second Further Amended Summons and Second Further Amended Statement of Claim. Several persons are named as Plaintiffs in those documents who are not represented in the proceedings and have not taken any role in the proceedings for some considerable time. In my view, it would be inappropriate to permit the filing of pleadings naming those persons as Plaintiffs, and exposing them to potential further liability for costs of proceedings in which they are not participating, where there is no evidence they now consent to their involvement in the proceedings.

1. Mr de Varda and Rabbi Tov-Lev contended, from the bar table, that there had been inappropriate conduct (which they characterised as "bribery" and "suborning", presumably of perjury) by the First Defendant in seeking to dissuade persons who were previously within the group of persons named as the First Plaintiff from further participating in the proceedings, on the basis that the Defendants would not pursue the existing costs orders made against them. I do not consider that this conduct is inappropriate, still less that it could properly be characterised as bribery or suborning perjury. It is commonplace that parties settle proceedings, including proceedings which they may subjectively wish to pursue, for reasons including avoiding adverse costs orders in the proceedings, and that course seems to me to be consistent with the public interest in the settlement of proceedings.

Whether the costs orders made in the proceedings should be stayed

1. As noted above, Mr de Varda and Rabbi Tov-Lev also seek orders that all previous costs orders be stayed until the determination of the proceedings. The effect of that order would be that the order previously made by Nicholas J that no new proceedings should be brought in respect of substantially the same cause of action or substantially the same relief, without payment of the costs already ordered in the Defendants' favour, would have no further substantive effect.

1. By way of background, s 98 of the Civil Procedure Act 2005 (NSW) relevantly provides that:

"Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court; and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis."

Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) in turn provides that, where the Court makes an order as to costs, the Court is to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. The principles underlying an award of costs, in respect of proceedings generally or a substantive application in them, include that costs are awarded to compensate the successful party for the expense of being put to the necessity of litigation; a wholly successful defendant should ordinarily receive its costs unless good reason is shown to the contrary; and the discretion to order costs must be exercised judicially and not against the successful party except for some reason connected with the proceedings: Milne v Attorney-General (Tasmania) (1956) 95 CLR 460 at 477; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 97-98 per McHugh J, at 129-123 per Kirby J; Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at 234.

1. Mr de Varda and Rabbi Tov-Lev submit that the costs orders made should be vacated because the costs of the proceedings were increased because the Defendants did not produce documents when the Plaintiffs required them to do so in these proceedings. That submission was not established of evidence of any particular occasion on which that occurred, so no assessment of the reasonableness of the conduct of the parties on that occasion is possible. That general proposition, even if established, would be a matter to be addressed in respect of costs orders on that occasion or on the resolution of the proceedings, rather than creating a reason to vacate an award of costs made in favour of the Defendants where they were successful in respect of another application.

1. I do not consider that I should grant the stay of previous costs orders sought by Mr de Varda and Rabbi Tov-Lev. Costs orders were previously made in the proceedings both by Hallen AsJ and by Nicholas J in respect of discrete applications before them, in a manner which was consistent with compensating the other parties to the proceedings for the costs to which they had been put in those applications. To take one example that I raised with Mr de Varda and Rabbi Tov-Lev in oral submissions, the orders as to costs made by Hallen AsJ reflected the result of the hearing before him, in circumstances that the then pleadings were struck out by reasons of deficiencies in them which he noted in his judgment. Those costs orders seem to me to have been an entirely orthodox application of the principles to which I have referred above. The order made by Hallen AsJ was not immediately enforceable, until a further order was made by Nicholas J permitting its enforcement. Those orders were made by judicial officers who were familiar with the circumstances at the relevant time; no application for leave to appeal against them was made at that time and it is highly unlikely that such leave would be granted; and no exceptional circumstances have been shown so as to warrant a re-exercise of the discretion exercised by those judicial officers at that time.

The First Defendant's motion

1. It is not necessary for me to determine the motion filed by the First Defendant under UCPR r 13.4, since I would dismiss the motion filed by Mr de Varda and Rabbi Tov-Lev on its merits.

1. The Defendants also sought an order restraining the Plaintiffs from commencing further proceedings upon terms. On one view, such an order is unnecessary, because the orders already made by Nicholas J have the consequence that any further proceedings raising the same or similar issues or seeking the same or similar relief cannot be pursued unless the costs of these proceedings are paid. On the other hand, there may be a case for such an order, so far as these proceedings have involved steps such as the filing of amended pleadings, purportedly pursuant to leave, where no such leave had been granted.

1. On balance, I consider that the orders already made by Nicholas J and the principles of abuse of process are sufficient to address the risk that further proceedings may be commenced in breach of those orders. The effect of dismissal of these proceedings has been explained in this Judgment and no further applications in respect of the principal relief sought can be filed in these proceedings without the Court's leave, which would only be given by reference to the principles I have noted above. Any attempt to file further process without such leave can also be addressed under the principles applicable to abuse of process or in the separate application which the First Defendant has brought in separate proceedings in respect of Rabbi Tov-Lev seeking orders under the Vexatious Proceedings Act 2008 (NSW).

Further developments after the hearing on 8 November

1. At the further hearing before me on 8 November 2012, I granted leave to Rabbi Tov-Lev to serve and send to my Associate a letter from one of the persons named as the First Plaintiff, Ms Romanovskaya, to which reference was made in oral submissions, and granted leave to each party to serve and send to my Associate submissions as to the admissibility of that letter. Rabbi Tov-Lev did not send a copy of that letter or further submissions as to its admissibility to my Associate. It appears from further submissions of Rabbi Tov-Lev as to other matters, to which I refer below, that it is suggested that a copy of that letter has disappeared from the house that Rabbi Tov-Lev previously occupied prior to his being permitted access to it in accordance with an order that I had made with the First Defendant's consent.

1. Rabbi Tov-Lev filed a detailed submission as to other matters in the Registry, which incorrectly stated that it was filed pursuant to leave granted by the Court. It is unclear whether that further submission was served on the First Defendant. Rabbi Tov-Lev submitted, inter alia, that:

• Rabbi Tov-Lev was served with a "warrant" on 6 November 2012 to vacate the residence after Senior Counsel representing the congregation produced "false and defective documents" to the CTTT to remove him. I have referred to steps taken by the Sheriff following the orders made by the CTTT in paragraph 12 above.

• Rabbi Tov-Lev and Mr De Varda requested the Court to refer the matter to the Director of Public Prosecutions and relevant authorities for investigation into the handling of the proceeding by an Associate Justice of this Court and a subsequent dismissal order made by another Judge of the Court and "further investigation in relation to the conduct of the Defendants and their legal representatives in the subornation of witnesses". I have referred to that question in paragraph 40 above.

• Rabbi Tov-Lev notes that I had "placed interlocutory orders on cross-examination" of the First Defendant and their solicitor. I understand this submission to refer to the fact that the Court did not adjourn the matter, on the application of Rabbi Tov-Lev and Mr de Varda, to permit the issue of subpoenas to numerous persons to attend to give evidence. I have referred to that matter in paragraph 18 above.

• Rabbi Tov-Lev submits that there was a "conflict of interest" with the Court ruling on his allegations as to a "tampered" Amended Statement of Claim. I have addressed the allegation of tampering with that document in paragraph 30 above.

• Rabbi Tov-Lev makes further allegations as to the conduct of the applications before Hallen AsJ and Nicholas J and the conduct of the subsequent proceedings before the CTTT. Allegations of misconduct are made in respect of the solicitors acting for the First and Second Defendants in the proceedings. Rabbi Tov-Lev also alleges that other persons previously named as First Plaintiffs in the proceeding - for whom Mr de Varda previously acted or claimed to act - who do not now pursue the proceedings as a result of any agreement reached between them and the Defendants are "accessories after the fact" - presumably, to a criminal act - and have committed perjury for financial gain. A further allegation is advanced against the CTTT that it, with knowledge of this application, had lifted its stay over a possession order in respect of the house associated with the Synagogue formerly occupied by Rabbi Tov-Lev "in a pre-emptive manner to undermine [Rabbi Tov-Lev's] preparation for the case before the Supreme Court determination".

1. I have not had regard to the detail of Rabbi Tov-Lev's further submissions in this judgment, since they were outside the scope of the leave granted by the Court. However, many of the matters raised in them had previously been raised in oral submissions before me and are addressed above.

1. Rabbi Tov-Lev also attached to his submission copies of emails addressed to the Premier of New South Wales, the Attorney General and Minister for Justice and the Chief Executive of the Judicial Commission of New South Wales which raised concerns, relevantly, as to my not having referred the matter to the Director of Public Prosecutions and the conduct of the proceedings before me. It is, of course, open to a party to proceedings before the Court to raise any matter with the executive and raise any complaint as to the conduct of a Judge with the Judicial Commission. However, I do not understand the making of such a complaint, in the

period between a judge reserving his judgment and the delivery of that judgment, to have the effect of discharging the judge from the obligation to deliver his or her judgment in respect of proceedings that he or she has heard. Otherwise, any party that feared an adverse judgment could force the costs and substantial prejudice of a rehearing upon the other party and the community by the simple expedient of making such a complaint after judgment is reserved and prior to the delivery of judgment.

1. The First Defendant's solicitors also sent a letter to my Associate that enclosed a letter to Mr De Varda and Rabbi Tov-Lev contending they had not served submissions and also enclosed a copy of a letter from several persons named as the First Plaintiff to Rabbi Tov-Lev contending that he had represented them in the proceedings without their consent and they did not wish to be involved with legal proceedings. The Defendants seek to tender the letter. I do not consider that granting leave for that tender would be consistent with s 56 of the Civil Procedure Act, where it appears a copy of that letter had been sent to one of the persons constituting the First Defendant in July 2012 and it could previously have been tendered in the course of the hearing before me.

Orders and costs

1. Accordingly, I make the following orders:

1 The Second Further Amended Summons and Second Further Amended Statement of Claim filed by Mr de Varda and Rabbi Tov-Lev on 6 November 2012 be struck out.

2 The Notice of Motion filed by Mr de Varda and Rabbi Tov-Lev on 11 October 2012 be dismissed.

It is not necessary again to dismiss the proceedings because they were previously dismissed by Nicholas J and that order remains in effect.

1. In the ordinary course, costs should follow the event. I direct the parties to serve on each other and send to my Associate their respective draft orders in respect of costs, and short submissions limited to a maximum of 6 pages in respect of such orders, within 7 days. I will determine the question of costs on the basis of those submissions and list the matter for judgment as to costs at 10am on 28 November 2012.

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Decision last updated: 15 November 2012