Kostov v The Society of St Vincent de Paul Pty Ltd
[2020] ACTCA 38
•29 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Kostov v The Society of St Vincent de Paul Pty Ltd |
Citation: | [2020] ACTCA 38 |
Hearing Dates: | 1 and 9 July 2020 |
DecisionDate: | 29 July 2020 |
Before: | Robinson AJ |
Decision: | Application dismissed. |
Catchwords: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal out of time – No impediment to filing appeal within time - No reasonable prospects of success |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 1147 Supreme Court Act 1933 (ACT) s 37J |
Cases Cited: | Jackamarra v Krakouer (1998) 195 CLR 516 Kostov v Amelie Housing (NCAT Appeal) [2019] NSWSC 16 Tomlinson v Ramsay Food Processing Pty Limited [2015] HCA 28; 256 CLR 507 |
Parties: | Adriana Kostov (Applicant) The Society of St Vincent de Paul Pty Ltd (Respondent) |
Representation: | Counsel Self-represented (Applicant) J Dempster (Respondent) |
| Solicitors Self-represented (Applicant) Peterson Haines (Respondent) | |
File Number: | ACTCA 20 of 2020 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Crowe AJ Date of Decision: 28 August 2019 Case Title: Kostov v The Society of St Vincent de Paul Pty Limited (No 2) Citation: [2019] ACTSC 232 |
ROBINSON AJ
Background to Application
Ms Kostov commenced proceedings in the Supreme Court by Originating Claim filed on 27 March 2019 against The Society of St Vincent de Paul Pty Ltd claiming damages and costs. A statement of claim was subsequently brought into existence by the plaintiff.
The statement of claim asserted that in about July 2017, the plaintiff had become “a client of the defendant by engaging in their supported accommodation … for women suffering hardship”. It was then said that on about 1 June 2018, the plaintiff had been locked out of the property and that her personal belongings had been moved from the property to a storage centre by an employee of the defendant.
Ms Kostov had previously brought proceedings to prosecute the above claims. Those proceedings had commenced in NCAT and terminated in the New South Wales Supreme Court. It is not necessary to set out the entire complicated procedural history of this litigation which was prosecuted against a different legal entity although related to the current defendant.
On 16 August 2019, Crowe AJ heard an application by the defendant seeking summary judgment or, in the alternative, that the statement of claim be struck out.
On 28 August 2019, Crowe AJ entered judgment for the defendant in accordance with r 1147 of the Court Procedures Rules 2006 (ACT). His Honour ordered that the plaintiff pay the defendant’s costs of the action, including applications in proceeding brought in the action, on an indemnity basis.
On 22 May 2020, the plaintiff, as applicant, applied to this Court seeking—
(a)Leave to appeal of out of time against the judgment of Crowe AJ on 28 August 2019; and
(b)Any other orders that the Court considers appropriate.
The matter first came before me on 1 July 2020. As a single judge, I exercised the powers of the Court of Appeal under s 37J of the Supreme Court Act 1933 (ACT).
Hearing of Application
At the hearing, the applicant appeared in person and by telephone. Ms Dempster appeared for the respondent to the application.
On 1 July 2020, the applicant addressed me on the salient points of the cause of the delay. The applicant made reference to written submissions bearing a lodging date stamp of the ACT Court of Appeal of 22 May 2020. Those submissions dealt with the applicant’s illness and the impact of COVID-19, as well as her interactions and communications with the Registry. The applicant also canvassed the impact upon her of the orders made by Crowe AJ.
I called on the respondent to then address me. The affidavit of Carrie Nicole Peterson sworn 26 June 2020 was read on the application by the respondent. I had commenced to receive the respondent’s submissions on the topic of delay when the applicant interrupted the respondent’s submissions to debate them and foreshadow additional evidence being required on her behalf.
The interruption was such that, in the interests of having an orderly hearing, I told the applicant that she would have an opportunity to address me further at a later time and that she should not interrupt the respondent’s submissions. It was at this time that the applicant, with no notice, terminated her telephone attendance with the Court. After it was realised that the applicant had terminated her attendance, I asked my associate to call back on the same number used to call the applicant in the first instance. That was a number that the applicant had given as her phone number for the purposes of the application. Notwithstanding that this second phone call was made promptly, there was no answer on the telephone and the number rang out.
I continued hearing the application by receiving further submissions from the respondent’s counsel.
After hearing the respondent, I reserved my decision and adjourned the Court.
I was informed that the applicant forwarded communications to the Registry later that day. The respondent was not copied in on these. I did not read these communications.
On 3 July 2020, the applicant filed an application in proceeding seeking, relevantly, that the applicant “be permitted to file evidence in response to Affidavit of Respondent 26 June 2020”.
I have treated that application as seeking to reopen the proceedings. The return date for this application was fixed as Thursday, 9 July 2020 at 10 AM. I directed that any further evidence be filed by 5 PM on Wednesday, 8 July 2020.
I was informed by the Registry that it had received correspondence from Ms Kostov at 3:12 PM on 8 July 2020.
On 9 July 2020, Ms Kostov again appeared by telephone, with Ms Dempster appearing for the respondent.
Ms Kostov addressed me on the medical evidence adduced by the respondent. She then sought leave to file further evidence in response to the affidavit of Carrie Nicole Peterson. After argument, I made an order that the applicant have leave to file such evidence within a further 10 days.
On 21 July 2020, the Registry received from the applicant an affidavit that was signed but not sworn or affirmed. I have considered the material in it. I have treated the material for present purposes as if it were duly executed.
The document consists of 16 pages with many pages of annexures. It is discursive in nature. In part, it seeks to relitigate the decision under appeal. It also refers to matters not relevant to this application. It does show that the applicant was granted a Disability Support Pension from 1 July 2019. The applicant says that she had to resign from work in the last week of June 2019. The applicant does not state the nature of her illness, which she regards as “very private”, but provides a computer printout of what are described as the “general medical rules” for the granting of a Disability Support Pension. The printout gives as dot points the following general medical rules—
·your condition will last more than two years;
·your condition is fully diagnosed, treated and stabilised;
·you have an impairment rating of 20 points or more;
·you mean Program of Support rules, if these apply to you;
·your condition will stop you working at least 15 hours a week in the next two years.
Decision
I have taken into account as the main factors in whether to extend the time for the filing of an appeal: the length of the delay, the reason for that delay, whether there is an arguable case of error in the decision appealed from, and the extent of prejudice (if any) suffered by the respondent.
I bear in mind the observation made by Brennan CJ and McHugh J in Jackamarra v Krakouer (1998) 195 CLR 516 at 519–520 that, in cases regarding an extension of time to lodge an appeal, “the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent”.
I have determined not to grant an extension of time in which to file an appeal.
I do so for two main reasons. First, the applicant did not lack the capacity to attend to her affairs, including her legal affairs, in the period between 28 August 2019 and the lodging of this application on 22 May 2020. There was no impediment to being able to file an appeal owing to the applicant’s medical condition. Second, the orders from which it is sought to appeal are not attended by sufficient doubt justifying an appeal.
Delay
During the period 28 August 2019 and 22 May 2020:
(a)on 20 April 2020, the applicant conducted litigation before Bell P in the New South Wales Court of Appeal (see Kostov v Director of Public Prosecutions(NSW) [2020] NSWCA 73 and [2020] NSWCA 94);
(b)on 29 May 2020, the applicant conducted litigation before Adamson J in the New South Wales Supreme Court (see Kostov v Commissioner of Police [2020] NSWSC 678);
(c)on 11 December 2019, the applicant attempted to file a complaint with the Australian Charities and Not-For-Profits Commission by email;
(d)on 13 January 2020, the applicant attempted to file a complaint by email with respondent;
(e)in the period of 28 August 2019 and 25 September 2019, the applicant sent to the respondent’s solicitors’ firm 49 emails; and
(f)in the period of 26 September 2019 to 22 May 2020, the applicant sent to the respondent’s solicitors’ firm 62 emails.
In the material before me, there are also documents written by the applicant which give some further understanding to her level of functioning in the period under consideration. For example, on 27 February 2020, the applicant swore an affidavit in proceedings entitled Kostov v Amelie Housing Pty Ltd (New South Wales Court of Appeal, 2019/55170). The affidavit is sworn in support of Ms Carrie Peterson being charged with contempt of court. It confirms what might be inferred from the listed activities above—that the applicant did not lack the capacity to attend to her legal affairs in the relevant time period, and was vigorous and proactive in the pursuit of what she regarded as her legal rights and which rights she regarded as having been infringed.
I have no direct evidence of the nature of the applicant’s disability, but on the evidence before me, it was not such as to have inhibited her from filing a notice of appeal within the time allowed. It is quite apparent that the applicant pursued what she saw as her legal rights against the current respondent, in the period in issue, by way of correspondence in an attempt to bring about a favourable resolution of her complaint, rather than by lodging an appeal.
Utility
The grounds of appeal set out in the draft notice of appeal are as follows:
(a) His Honour Justice Crowe, denied the Appellant, a Hearing of her Application listed 16 August 2019, and only heard the Defendant’s Application to strike out the Appellant’s case;
(b) The Appellant has therefore been denied a Hearing and procedural fairness and was denied an opportunity to present her case.
(c) Orders were in essence made in the Appellant’s absence;
(d) The Appellant had been too unwell to run legal proceedings, and asked for an adjournment due to medical reasons, such, was denied. The Appellant was therefore unfit to conduct legal proceedings as of the Hearing date of 16 August 2019.
I have worked through Crowe AJ’s judgment Kostov v The Society of St Vincent de Paul (No 2) [2019] ACTSC 232 to determine whether there can be any reasonable prospects of success under the four grounds of appeal. I have concluded that there are no prospects of success on these grounds of appeal.
Ms Kostov was not denied any procedural fairness. It is self-evidently convenient and expeditious to consider an application for summary judgment by a defendant before embarking upon a trial. There is no error in His Honour’s exercise of discretion as to whether or not to grant an adjournment of the hearing of the application for summary judgment.
I have also worked through the judgment to determine whether the orders made by Crowe AJ should not have been made for any reason. I have concluded that the orders made by Crowe AJ were inevitable.
The applicant in these proceedings has sought to reframe her case against a different defendant to relitigate the matters which have already been determined against her in New South Wales. That decision has not been set aside. In that decision, the New South Wales Supreme Court found expressly that the current defendant was not a proper party to the complaints brought by the applicant in those proceedings: see Kostov v St Vincent de Paul Housing trading as Amelie Housing and Anor [2018] NSWSC 1581 at [20].
The principles in Tomlinson v Ramsay Food Processing Pty Limited [2015] HCA 28; 256 CLR 507 at [22]–[26] are invoked.
There is also the question of whether the applicant has standing to bring these proceedings. In short, the cause of action on which the plaintiff proceeds is that she was unlawfully dispossessed from her tenancy and that her property within the tenancy has been unlawfully placed into storage. In her statement of claim, the applicant alleges that she was locked out of her accommodation on or about 1 June 2018. The applicant became a bankrupt on 18 July 2018. In these circumstances, the cause of action fell into the bankrupt estate of the applicant. The cause of action is vested in the trustee of her estate. This situation is analysed in greater detail in Kostov v Amelie Housing(NCAT Appeal) [2019] NSWSC 16.
The applicant commenced these proceedings against the respondent on 27 March 2019. The same result will follow.
The case does not have reasonable prospects of success. I decline to grant leave to appeal.
Order
The orders of the Court are:
1. The application for leave is dismissed.
2. The applicant for leave to pay the respondent’s costs of and incidental to the application.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: 29 July 2020 |
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