Koidu von Reisner v Chepurin - [2013] NSWSC 874

Supreme Court

New South Wales

Medium Neutral Citation: Koidu von Reisner v Chepurin and Anor [2013] NSWSC 874
Hearing dates: 28 June 2013
Decision date: 28 June 2013
Jurisdiction: Common Law
Before: Slattery J
Decision:
Motion dismissed with costs.

Catchwords: PROCEDURE - application under Uniform Civil Procedure Rules r 36.17 (the slip rule) - plaintiff seeks to correct matters in a published judgment - whether application should be referred back to trial judge - slip rule discussed - amendments sought are controversial - plaintiff filed notice of intention to appeal - some of the matters raised are more suitable for appeal.
COSTS - motion dismissed - whether costs should not follow the event - plaintiff argues an entitlement to ensure publication of her personal details on the internet was correct.
Legislation Cited: Uniform Civil Procedure Rules r 36.17
Trade Practices Act 1974 (Cth)
Cases Cited: Von Reisner v Chepurin [2013] NSWSC 150
Elyard Corp Pty Limited v DDB Needham (Sydney) Pty Operations Pty Limited (1995) 61 FCR 385
Hatton v Harris [1892] AC 547
Reisner v Oleg Chepurin (NSWSC, Bergin CJ in Eq, 15 November 2010 unreported
Category: Principal judgment
Parties: Plaintiff: Koidu von Reisner
First Defendant: Chepurin Oleg
Second Defendant: Dr Wayne Shevchuk,
Representation: Counsel:
Plaintiff: self-represented
Defendant. A Bowen
Solicitors:

File Number(s): 2010/00377750

Judgment

The plaintiff, Ms Koidu von Reisner, applies today by motion dated 18 April 2013 for orders under Uniform Civil Procedure Rules r 36.17 ("UCPR"), sometimes referred to as "the slip rule", to amend certain paragraphs of a judgment given by Harrison AsJ on 5 March this year, Von Reisner v Chepurin [2013] NSWSC 150. This is an unusual application. Normally applications under the slip rule are made to the Justice or Associate Justice who makes the decision sought to be corrected.

Introduction

But the factors in play here make it logical that I hear this application. Ms von Reisner has indicated that she has filed in the Court of Appeal a notice of intention to appeal against Associate Justice Harrison's decision. The defendants confirm that she has taken this course. Ms von Reisner accepts that some of the matters she has raised in her present motion are really matters for her appeal and she will not be further pursuing them now.

At the opening of this case it appeared that perhaps Ms von Reisner was asking the Court to review Harrison AsJ's decision under UCPR Pt 49. But it seems clear from her notice of intention to appeal that she will be arguing in the Court of Appeal her application to review Harrison AsJ's decision. Ms von Reisner certainly indicated that was her intention.

As to the other matters raised in her motion, it is certainly open to this Court to refer them back to Harrison AsJ. As the trial judge, her Honour is really the person best able to determine whether or not any application of the slip rule is appropriate. That is the course that would normally be taken.

But efficiency…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 874
Decision Date: 28 June 2013

CaseChat Overview and Summary

The parties to the case were Koidu von Reisner and Chepurin. The dispute involved an application by the plaintiff to correct certain matters in a published judgment, as per the rules under r 36.17 of the Uniform Civil Procedure Rules. The application was heard by the court. The legal issues that the court was required to decide involved whether the application should be referred back to the trial judge for consideration or if it was more appropriate for the matter to be dealt with on appeal. The plaintiff sought to amend the published judgment to correct certain errors that had occurred during the trial, but some of these amendments were deemed controversial. Additionally, the plaintiff had filed a notice of intention to appeal, which raised the question of whether some of the matters raised in the application were more appropriately dealt with on appeal.

The court found that the application should not be referred back to the trial judge, as the matters raised in the application were more appropriately dealt with on appeal. The court also noted that some of the amendments sought by the plaintiff were controversial and would require further consideration, which was more suitable for an appellate court. The court dismissed the motion for costs, as the plaintiff had argued that she was entitled to ensure that her personal details were correctly published on the internet. The court found that the matter of costs should not follow the event and that the plaintiff's entitlement to correct her personal details was not sufficient grounds for an award of costs.

The court's reasoning was based on the fact that the application sought to amend a published judgment, which was a matter that was more appropriately dealt with on appeal. The court also noted that some of the amendments sought by the plaintiff were controversial and would require further consideration, which was more suitable for an appellate court. The court's decision to dismiss the motion for costs was based on the fact that the plaintiff's entitlement to correct her personal details was not sufficient grounds for an award of costs. The court found that the matter of costs should not follow the event and that the plaintiff had not demonstrated any entitlement to costs.

Orders