Kostov v Society of St Vincent de Paul Pty Limited
[2019] ACTSC 239
•27 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kostov v Society of St Vincent de Paul Pty Limited |
Citation: | [2019] ACTSC 239 |
Hearing Date: | 27 August 2019 |
DecisionDate: | 27 August 2019 |
Before: | Elkaim J |
Decision: | The application is dismissed. |
Catchwords: | DUTY APPLICATION – Urgent application by the Plaintiff to stay judgment being delivered in substantive matter pending outcome of recusal application of that presiding judge – denial of procedural fairness – whether or not delivery of judgment should be stayed pending outcome of recusal application |
Parties: | Adriana Kostov (Plaintiff) Society of St Vincent De Paul Pty limited (Defendant) |
Representation: | Counsel Self-represented (Plaintiff) S Onitiri (Defendant) |
| Solicitors Self-represented (Plaintiff) Peterson Haines (Defendant) | |
File Number: | SC 162 of 2019 |
ELKAIM J:
The parties in this matter are currently engaged in a hearing before Crowe AJ. His Honour has informed the parties that he intends to hand down his decision tomorrow. It is apparent that the decision relates to an application made by the defendant to strike out the plaintiff’s proceedings.
On 22 August 2019, and then again on the following day, the plaintiff filed an application in proceeding in which she seeks a number of orders, but most notably that Crowe AJ recuse himself from continuing with the proceedings. This application was apparently accepted by the court and given a return date of 13 September 2019. It is evident that Crowe AJ was made aware of the application.
Notwithstanding that the application had not been heard, his Honour yesterday (26 August) informed the parties that he would be delivering his judgment tomorrow (28 August). This generated an immediate concern for the plaintiff because the decision would be delivered before her application had been heard. Accordingly the plaintiff listed the matter before me, as duty judge, with the intent that the delivery of judgment by Crowe AJ should be postponed until after the hearing of her application on 13 September 2019.
In support of her application the plaintiff took me to the transcript of the proceedings which occurred on 16 August 2019. I note that the transcript erroneously refers to the proceedings taking place on 21 August 2019.
It is clear from the transcript that his Honour was dealing, on 16 August, with applications that had been made by both sides. It is equally apparent that his Honour took the view that the strike out application should be dealt with first, presumably on the basis that if it was successful there would be no need to deal with any other applications.
As the hearing proceeded on 16 August 2019 the plaintiff became concerned that her applications had been, in effect, put into second place behind that of the defendant. She pointed out, for example, that there were three applications before the court, two of which had been made by her (T 10.6). This is then followed by his Honour stating, at T 10.18, that “we are going to deal first with the defendant’s strike out application”.
Shortly thereafter, at T 11.13, the plaintiff told his Honour that her application was “actually really important”. His Honour however persisted in his decision to deal with the strike out application first. He made this clear again at T 31.45. The plaintiff was clearly upset by his Honour’s decision and ultimately, at T 34.3, asked his Honour to recuse himself. She said that it was a formal application “because you are prejudicing me”. His Honour refused to recuse himself.
The plaintiff repeated her formal application at T 35.1 and once again the application was refused, at T 35.17. The plaintiff was clearly distressed at the manner in which she was being dealt with and ultimately stopped participating in the hearing. I note she had appeared by telephone so that she simply terminated the call (T 36.8).
In making the application before me today the plaintiff has not identified any particular rule giving me jurisdiction to make the order that she seeks. She has also not told me if I should be sitting as a single judge of appeal or otherwise. Nevertheless she made it plain that the basis of her application before me was to avoid the unfairness and injustice that would arise from the delivery of judgment before her application, returnable on 13 September 2019, was heard.
Absent some evidence of actual misconduct on the part of the primary judge, I doubt that I have jurisdiction to make the orders sought by the plaintiff. However I intend to proceed in these reasons as if I did have jurisdiction because I think there is a straightforward answer to the plaintiff’s application.
The assumption of course is that the plaintiff will not do well in the judgment due to be handed down tomorrow. If that is the case then the plaintiff will be understandably aggrieved. She will however have rights of appeal which could include a ground complaining about the refusal of his Honour to recuse himself from the hearing. If the Court of Appeal finds substance in that ground then that will be reflected in the result of the appeal. I would add that even if the matter was one in which leave to appeal was required, an improper refusal of an application for recusal, would be very likely to generate the necessary leave.
I make absolutely no comment on the strength of the plaintiff’s application for Crowe AJ to recuse himself. However if there is substance then it will be reflected, no doubt, in the results of an appeal.
It might be said that it is unfortunate that his Honour did not delay the handing down of judgment until after the application returnable on 13 September 2019 was heard. On the other hand it is, as pointed out above, very apparent from the transcript that his Honour took the view that the strike out application should be dealt with first. I do not know the details of the strike out application but if they go to a fundamental deficiency in the proceedings then it would not matter what merit there was, or was not, in the plaintiff’s applications.
The plaintiff, on 16 August 2019, chose not to participate in the hearing after it was made plain that it was the strike out application that was being considered. That was a decision she made voluntarily. In doing so she denied herself the opportunity, at the conclusion of the hearing on 16 August 2019, to ask again to be heard on her applications or at least to request directions for their hearing in the future.
When I pointed out to the plaintiff that she could take the matter up again on appeal she said that she should not be put to the waste of time and costs that were attendant upon an appeal. An appeal will no doubt take time, and be expensive, but in my view that is the appropriate way for the plaintiff to proceed.
I can understand why the plaintiff is upset. She obviously feels that she has not been able to put forward the whole of her case, in particular her applications, before a final decision is made by the primary judge. However for me to interfere in the conduct of a case being heard by another judge would be a most serious step, justified only by exceptional circumstances, which do not exist here.
The plaintiff has clearly not appreciated that his Honour has taken the view that the strike out application should take precedence over any other application because if successful it will determine the whole of the proceedings. If that is the case then the other applications will fall with the proceedings generally. If the decision reached was that the application for a strike out of the proceedings was successful then the application returnable on 13 September 2019 would, as a matter of course, have automatically been disposed of within the result of the whole of the proceedings.
Accordingly the application before me, as duty judge, is dismissed.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim. Associate: Date: 27 August 2019 |
0
0
0