Kostov v YPOL Pty Ltd

[2017] NSWSC 514

Supreme Court

New South Wales

Medium Neutral Citation:	Kostov v YPOL Pty Ltd [2017] NSWSC 514
Hearing dates:	28 April 2017
Decision date:	28 April 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Listing of penalty proceedings on 1 May 2017 vacated; proceedings listed for penalty hearing on 2 June 2017 before Fagan J
Catchwords:	CIVIL PROCEDURE – application for adjournment of penalty hearing after applicant found guilty of contempt of Court – where applicant is self-represented – where applicant has extant application for grant of legal aid – whether risk to due process warrants vacation of hearing date
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Cases Cited:	Kostov v YPOL Pty Ltd [2017] NSWSC 341
Category:	Procedural and other rulings
Parties:	Adriana Kostov (plaintiff) YPOL Pty Ltd (first defendant) Jeffrey Easton (second defendant)
Representation:	Counsel: Plaintiff self-represented S Callan (defendant)   Solicitors: Sparke Helmore (defendant)
File Number(s):	2016/257819
Publication restriction:	This judgment has a confidential annexure which is not for publication

Judgment

1. HER HONOUR: On 27 March 2017, Fagan J determined an application by the first defendant, YPOL Pty Ltd, to have the plaintiff, Ms Adriana Kostov, dealt with for contempt in respect of charges filed on 27 January 2017: see Kostov v YPOL Pty Ltd [2017] NSWSC 341. His Honour found the charges proved. The proceedings are presently listed for penalty hearing before his Honour on Monday next, 1 May 2017.

2. The plaintiff sought by email to his Honour's chambers to obtain an adjournment of that hearing. However, his Honour is on leave this week. In those circumstances, the application was brought before me as Duty Judge. Yesterday, I allowed Ms Kostov to file in court a notice of motion and supporting affidavit seeking the adjournment. However, I formed the view that I should not determine the application without hearing from the defendant. I directed Ms Kostov to give the defendant notice of the application and brought the matter back before me inter partes today.

3. The plaintiff's submissions have persuaded me that the adjournment should be granted, for the following reasons.

4. The grounds on which the adjournment is sought are twofold. First, Ms Kostov is presently unrepresented in the proceedings. She has recently filed an application for legal aid. She has tendered a letter dated 27 April 2017 from the Legal Aid Commission which states that Supreme Court contempt proceedings are outside Legal Aid NSW policy and guidelines and that only the Chief Executive Officer of Legal Aid NSW has authority to grant aid in contempt matters. For that reason, Ms Kostov's application has been escalated to the CEO. The letter states that no indication can be given as to the time required before a decision can be made.

5. Secondly, there is before the Court material of a medical nature which supports the conclusion that, being unrepresented, Ms Kostov will be unable on Monday to best represent her own interests in the penalty proceedings. The detail of that evidence is addressed in a confidential annexure to this judgment.

6. I should record that Ms Kostov's notice of motion also sought referral to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW). However, Ms Kostov does not press that part of the application in the circumstances of her having an extant application before the Legal Aid Commission.

7. Separately, the notice of motion sought "removal of tweet from New South Wales [Supreme Court] website". Any such application would need to be brought by separate proceedings, not by way of notice of motion in these proceedings. I declined to deal with that aspect of the relief sought. Accordingly, the only matter for determination today is the application for an adjournment of the penalty hearing listed for 1 May 2017.

8. At the time Fagan J determined the motion for contempt there was no medical evidence before his Honour of the kind now before me. The judgment records that the proceedings commenced with an application by the plaintiff for an adjournment, which his Honour refused. His Honour proceeded to determine the motion in the plaintiff's absence in the circumstances recorded in his Honour's judgment at [8] as follows:

The plaintiff was subject to an order made by Davies J on 17 February 2017 that she attend before the Court to answer the charge on 27 March. Instead of attending she sent to my Associate the email to which I have referred and then answered the phone when she was called from the courtroom to deal with her adjournment application. After I had determined not to grant the adjournment it was not practical to conduct the hearing of the charge with the plaintiff being present by telephone. Her behaviour on the phone made that impossible. She issued a stream of abuse regarding the first defendant and its solicitors on the record. She shouted over me when I attempted to address her. She was generally irrelevant and uncontrollable. Her manner was near hysterical. I found it necessary to advise her that I would proceed in her absence and to terminate the telephone link. That is what occurred.

9. That was on 27 March 2017. Since that date, medical information has been provided as addressed in the confidential annexure to this judgment.

10. In circumstances where Ms Kostov is both unrepresented and suffering from the condition described in the confidential annexure, I formed the view that there would be a real risk of prejudice were she forced on to make submissions on her own behalf on the question of penalty in the proceedings on Monday. Ms Callan, who appears for the first defendant, submitted with some force that there would be little utility in the adjournment because the procedural history of the matter reveals that Ms Kostov is unlikely to obtain legal representation and unlikely to reach a position where she will, herself, be able to address submissions as to penalty.

11. Certainly, the procedural history is troubling and my first response to the application was to think that it should be dealt with before Fagan J. That was before I learned that his Honour was on leave this week. In his Honour's absence, I have reached the conclusion that, whatever the future may hold, the risk of poor presentation of her position on Monday poses a real threat to the due process to which Ms Kostov is entitled in such serious proceedings. It is to be noted that imprisonment is within the range of penalties available for the conduct his Honour has found proved.

12. Having reached the conclusion that Ms Kostov would not be in a position to proceed on Monday I learned that, regrettably, there is a considerable clash between his Honour's availability and that of Ms Callan, who appears for the defendants. Ms Callan very fairly indicated that, although she has a prior commitment in a criminal matter for five weeks commencing on the same date on which it is convenient according to his Honour's diary to list the proceedings for hearing, she will use her best endeavours to be excused from those proceedings on Friday, 2 June 2017.

13. For those reasons I vacate the listing of the penalty proceedings on 1 May 2017 and list the proceedings for penalty hearing before Fagan J on 2 June 2017.

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