De Varda v The Board of the Strathfield and District Hebrew Congregation

[2013] NSWSC 920

Supreme Court

New South Wales

Medium Neutral Citation:	De Varda v The Board of the Strathfield and District Hebrew Congregation [2013] NSWSC 920
Hearing dates:	05/07/2013
Decision date:	05 July 2013
Jurisdiction:	Equity Division
Before:	McDougall J
Decision:	Applications to reopen, to amend, and for trial by jury, dismissed
Catchwords:	PRACTICE & PROCEDURE - judgments and orders - application to reopen - relevant principles
Legislation Cited:	Supreme Court Act 1970 (NSW)
Cases Cited:	De Varda and Tov-Lev v The Board of Directors of The Strathfield and District Hebrew Congregation Ltd & Anor [2012] NSWSC 1377
Category:	Procedural and other rulings
Parties:	Joseph De Varda (First Plaintiff) Rabbi Dr Samuel Tov-Lev (Second Plaintiff) David Cliffe (Third 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: Joseph De Varda (First Plaintiff) (In Person) Rabbi Dr Samuel Tov-Lev (Second Plaintiff) (In Person) D Austin (First and Second Defendants) (Solicitor) Solicitors: Austin Legal (First and Second Defendant)
File Number(s):	2011/212996

Judgment (EX TEMPORE - REVISED 5 july 2013)

1. HIS HONOUR: The first and third plaintiffs are members of the congregation of the Strathfield and District Hebrew Congregation (the Synagogue), a company limited by guarantee. The second plaintiff, Dr Tov-Lev is (as he would say), or was (as the defendants would say), the Rabbi of the Synagogue. The first defendants are members of the board of directors of the Synagogue. The second defendant is the auditor of the Synagogue.

1. In general terms, the dispute between the plaintiffs and the first defendants relates to the control of the affairs of the Synagogue. The specific dispute appears to be whether (as the first defendants say) the affairs of the Synagogue should be wound up, and its assets sold; or whether (as the plaintiffs say) the Synagogue should continue to operate as a place of worship.

1. There are before the court today a number of applications. To understand the applications, it is necessary to know a little of the history of the matter.

Procedural history

1. The plaintiffs, who in substance have been unrepresented, filed a summons and, later, a statement of claim. The court ordered the parties to mediate their differences. The mediation was unsuccessful.

1. After failure of the mediation, the defendants moved to strike out the statement of claim. That application was heard on 4 November 2011 by Hallen AsJ (as he then was). His Honour ordered that the then amended

statement of claim be struck out, and that no further pleading be filed without the consent of the defendants or leave of the court.

1. The plaintiffs challenged his Honour's order. They sought leave either further to amend the statement of claim or to file "a fresh document". That application was heard by Nicholas J.

1. Nicholas J dismissed the application. Further, and specifically, his Honour dismissed the proceedings. His Honour made costs and ancillary orders.

1. There have also been disputes between the Synagogue and the plaintiffs (in particular, Dr Tov-Lev) in relation to premises at Strathfield occupied by Dr Tov-Lev in the course of, and for the purposes of, his employment as Rabbi. Those proceedings were dealt with by the Consumer, Trader and Tenancy Tribunal (CTTT). The CTTT decided in favour of the Synagogue. There have been applications for a stay and rehearing, and proceedings in the Common Law Division of this court for relief in the nature of certiorari against the CTTT's orders.

1. While all that was happening, the present plaintiffs (Mr de Varda, Dr Tov-Lev and Mr Cliffe) moved this court for leave to extend the time for filing an amended summons and amended statement of claim. That application came before Black J. His Honour dismissed it. A further application, in relation to costs, was dealt with by Black J. His Honour ordered the plaintiffs to pay the defendants' costs.

1. The position is thus, that, by reason of the orders of Nicholas J, the proceedings were dismissed. Black J specifically noted that in his reasons of 15 November 2012 (dealing with the application for extension of time); [2012] NSWSC 1377 at [53]. Black J ordered that a second further amended summons and statement of claim be struck out and that the notice of motion be dismissed. His Honour then stated;

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

The applications

1. The matter has come before me today, in the course of the duty list. The plaintiffs have filed the following process:

(1) a notice of motion filed 7 June 2013;

(2) a notice of motion filed 1 July 2013;

(3) a requisition for a trial by jury also filed on 1 July 2013.

1. The plaintiffs have filed affidavits in support of each notice of motion, and have also sought to rely on earlier affidavits filed by them in the proceedings.

1. The relief claimed by the notice of motion filed on 7 June 2013 is as follows:

1. An order that the time for compliance with the orders of Hallen AsJ made on 4 November 2011 be extended to 7 June 2013 on the grounds of new evidence.

2. An order that the plaintiffs be granted leave to file a Further Further Amended Statement of Claim in the form that is annexed hereto marked "A".

3. An order that Dr. Murray Selig attend court to be examined on the Statutory Declaration dated 30 April 2012 produced to the NSW Consumer, Trader & Tenancy Tribunal (CTTT) that Mr Eddy Neumann was provided with a written notice of the Extraordinary General Meeting by facsimile on 3 April 2011.

4. An order that Second Defendant attend court to be examined on the correspondence he wrote to ASIC on 18 April 2011 that Mr Eddy Neumann had no knowledge of the Extraordinary General Meeting which caused the destruction of Form 362 and the improper removal of ten (10) duly elected directors of the new Board from ASIC Register, although the Second Defendant was already removed as ASIC registered agent through the process of the EGM on 17 April 2011.

5. An order that Mr. Eddy Neumann attend court to be examined on the written notice of the Extraordinary General Meeting received from Dr Murray Selig by facsimile on 3 April 2011 and the Minutes of the Annual General Meetings of the Strathfield and District Hebrew Congregation provided to the CTTT which caused the ousting of the First plaintiff (the Rabbi) from the Synagogue and his Rabbinical residence.

6. An order that all previous costs in the proceedings be stayed until the determination of these proceedings.

7. Such further or other orders the nature of the case requires.

1. For present purposes, it is not necessary to set out the draft further amended pleading annexed to that notice of motion.

1. The relief claimed by the notice of motion filed on 1 July 2013 is as follows:

1. An order that the court proceedings be conducted by way of Trial by Jury which is the inalienable Common Law Right of all Australians guaranteed "forever" by Magna Carter [sic] 1215 and the Confirmation of Charters 1297, Petition of Right 1627, Habeas Corpus 1640 and Bill of Rights 1688 which are entrenched Constitutional Enactments listed in Part 1 Schedule 2 of the NSW Imperial Acts Application Act 1969 No. 30 and referred to under Part 6 Division 2 section 85 of the Supreme Court Act 1970 No. 52 as being required "in the interests of justice" on the grounds set out in the accompanying Affidavits.

2. An order that all previous orders for costs in these proceedings be set aside.

3. An order that the following matters of relevant issues set out in the accompanying Affidavits be referred to the Direction of Public Prosecutions:

(a) The inducement received by the Second defendant of $7,500.00 as ASIC registered agent from the purported board of directions to remove electronically the names of the duly elected New Board of Directors from ASIC Registry.

(b) The subornation of witnesses by Mr Eddy Neumann and others involved in these court proceedings as litigants.

(c) The false records of documents purported to be Annual General Meetings from 1998 to 2011 produced to the court to improperly gain control of the company and its assets.

1. The requisition for a trial by jury is precisely what it says.

1. The plaintiffs' evidence and submissions travel well beyond the issues raised by the notices of motion. They included (in particular, in the course of submissions) scandalous and unsubstantiated allegations, not only against the defendants, but also against their solicitors. In the ordinary way, I would have stopped anyone from using the right of privileged speech in open court to take that path. However, having regard to the history of the matter and the fact that the plaintiffs are self represented, and in order to give them every opportunity to advance their case, I took the unusual course of listening without comment or interruption.

The power to reopen

1. The starting point for analysis is that the proceedings stand dismissed and that no application has been made in terms to set aside the order of dismissal.

1. The power of the court to reopen proceedings is not at large. Rule 36.15 of the Uniform Civil Procedure Rules provides a general power to set aside a judgment or order. That rule reads as follows:

36.15 General power to set aside judgment or order

(cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)

(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

1. Rule 36.16 provides a further power to set aside, or vary, a judgment or order. It reads as follows:

36.16 Further power to set aside or vary judgment or order

(cf SCR Part 40, rule 9)

(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.

(2) The court may set aside or vary a judgment or order after it has been entered if:

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:

(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or

(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.

(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).

(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

1. No application has been made, by way of notice of motion or otherwise, of the kind contemplated by subr (I) of r 36.16. Nor has any notice of motion of the kind contemplated by subr (3A). Subrule (2) of r 36.16 is, on its face, not applicable, and neither is subr (3).

Decision

1. There is no doubt that the court retains an inherent power to set aside judgments or orders. In particular, if an order or judgment has been procured by fraud, it may be set aside. There is, however, authority which I must follow, to the effect that an application to set aside a judgment obtained by fraud is to be made in separate proceedings, and not by motion in the proceedings in which the judgment or order was obtained. I refer to that not because I think there is the slightest evidence of fraud, but simply to indicate the further procedural difficulty which the plaintiffs face.

1. So far as I can tell, the alleged "fraud", or in terms of r 36.15(1) irregularity or want of good faith, arises from the provision to Nicholas J of a version of the draft further amended statement of claim propounded by the plaintiffs which was inaccurate. What the plaintiffs say was the correct version of the statement of claim that they propounded is Exhibit PX1 before me. What they say was the "false" version, and the version in fact handed to Nicholas J, was Exhibit PX2.

1. This is not a fresh question. It was raised before Black J on the hearing of the notice of motion to which I have referred. His Honour dealt with this, and other matters, at [30] of his reasons of 15 November 2012. I set that paragraph out:

[30] 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. In my respectful opinion, what his Honour said at [30] is correct. First, the plaintiffs have been given a hearing, and an opportunity to file further pleadings. They did not take that up. They exercised their right of appeal (from the decision of Hallen AsJ) and obtained a further hearing. Finally, although the prayers for relief in the two versions of the amended Statement of Claim vary, the substance (the "pleading" of the material facts on which relief is claimed) is indeed identical. It matters not which version is considered. As his Honour said, each "manifestly fails to comply with the requirements for a proper pleading."

1. It follows, as I have indicated already, that the material goes nowhere near showing irregularity or want of good faith, let alone fraud.

1. In circumstances where the issues have been dealt with now by two judges of this court, (and, originally, by an Associate Judge), and where nothing fresh is put before me to justify any application for extension of time to file a further pleading, and where the further pleading which is propounded (by the notice of motion filed 7 June 2013) suffers from exactly the same defects as those identified by Black J in relation to its predecessor, I do not propose to grant the relief sought by the notice of motion filed on 7 June 2013 in relation to prayers one and two.

1. It is unnecessary to deal with prayers three to five of that notice of motion because there is no basis on which this court can make an order at large for people to attend to be cross-examined on documents not filed in this court.

1. Finally, having regard to the orders of Nicholas J and Black J and the conclusions I have just expressed, there is no basis shown for staying the costs orders.

1. In relation to the notice of motion filed on 1 July 2013, there is no extant proceeding in this court. Thus, there is no proceeding in respect of which any question of trial by jury arises. It is, strictly speaking, therefore unnecessary to consider whether, if there were an extant proceeding, a trial by jury should be ordered, in the face of the general position set out in s 85 of the Supreme Court Act 1970 (NSW).

1. What I have said applies equally to the requisition for trial by jury.

Orders

1. The result is that each of the notices of motion should be dismissed with costs, and I so order.

1. In the circumstances of this case, I order that the exhibits remain with the file.

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