Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 3)

[2017] NSWDC 89

District Court

New South Wales

Medium Neutral Citation:	Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 3) [2017] NSWDC 89
Hearing dates:	27 April 2017
Date of orders:	27 April 2017
Decision date:	01 May 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff’s application for adjournment of the notice of motion filed on 21 February 2017 (Exhibit A) in relation to orders (1) and (2) (orders (3) and (4) not being pressed) is refused. (2) The notice of motion filed on 21 February 2017 is dismissed on the basis of my orders of 2 February 2017. (3) The plaintiff’s notice of motion filed 31 March 2017 (Exhibit B) is dismissed. (4) Note Judge Gibson to give short reasons later today, to be emailed to the parties, having regard to the time taken by this application. (5) The plaintiff is to pay the defendants’ costs. (6) The defendants’ applications for a stay in relation to the filing of any further notices of motion and/or the appointment of a tutor are refused, but without prejudice to the defendants’ entitlement to bring such an application in the future in the event further notices of motion are filed in this Court.
Catchwords:	PRACTICE AND PROCEDURE – application to set aside orders under r 36.15 Uniform Civil Procedure Rules 2005 (NSW)
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Court Suppression and Non-Publication Orders Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 4.5, 36.15 and 36.16
Cases Cited:	Coren v Master Builders Association of New South Wales Pty Ltd [2012] NSWCA 244 Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLW 126 In the matter of Cummins Equipment Hire Pty Limited [2015] NSWSC 2085 Kelly v Mosman Municipal Council [2010] NSWCA 370 Kostov v YPOL Limited [2017] NSWSC 395 Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7 Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 2) [2017] NSWDC 18 Liu v The Age Company Limited [2016] NSWCA 115 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396 Penson v Titan National Pty Ltd (No 5) [2016] NSWCA 405 Piscioneri v Reardon [2015] ACTSC 61
Category:	Procedural and other rulings
Parties:	In proceedings 2016/51926: Plaintiff: Adriana Kostov First Defendant: Fan Fan Zhang Second Defendant: Fairfax Media Publications Pty Ltd Third Defendant: EasyMarkets Pty Ltd   In proceedings 2016/86450: Plaintiff: Adriana Kostov Defendant: Fairfax Media Publications Pty Ltd
Representation:	Counsel: Plaintiff: In person First and third defendants in proceedings 2016/51926: Mr A T S Dawson SC / Mr A R R Vincent Second defendant in 2016/51926 and defendant in 2016/86450: Ms L Barnett   Solicitors: Plaintiff: In person First and third defendants in proceedings 2016/51926: HWL Ebsworth Second defendant in 2016/51926 and defendant in 2016/86450: Banki Haddock Fiora
File Number(s):	2016/51926; 2016/86450
Publication restriction:	None

Judgment

1. The plaintiff commenced two separate proceedings on 17 February 2016 and 20 March 2016 for defamation and injurious falsehood. As is set out in Kostov v Zhang;Kostov v Fairfax Media Publications Pty Ltd [2017] NSWDC 7 (2 February 2017), the plaintiff’s pleading problems, failure to comply with orders and failure to conduct the case in an efficient manner resulted in orders of a peremptory nature for security for costs and a stay. The effect of her failure to comply with the steps set out in my orders of 2 February 2017 is, as is evident from the terms of orders 11 and 14, the dismissal of both claims.

2. The plaintiff could have sought an extension of time to provide security for costs or payment, or to comply with those orders by a later date. Instead, she has brought two separate applications under rr 36.15 and 36.16 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) to set aside those orders, as well as two applications pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) for publication of my judgments on CaseLaw to be suppressed.

3. In Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 2) [2017] NSWDC 18 (16 February 2017) I rejected the plaintiff’s first set of applications under these provisions. The plaintiff now brings the same applications a second time, although the factual material (which now includes medical evidence and an affidavit in relation to her address for service) is of a more substantial nature.

4. The plaintiff claim, on this second set of applications, that the information she now provides in support of her applications was not available to her on the first occasion that the plaintiff came before me seeking the same relief.

5. As is set out below, at the end of a hearing of some length on 27 April 2017, I rejected the plaintiff’s applications for a second time, for the reasons set out below. I was not able to give those reasons on the same day as the orders, in part because of the length of time occupied by these applications and in part because of the manner in which the plaintiff, who appeared for herself, conducted the proceedings.

The orders sought

6. I set out the orders sought as they appeared in the plaintiff’s first notice of motion, filed on 21 February 2017:

1. All orders made by Her Honour on 9 [sic] February 2017 be set aside pursuant to rule 36.15(1);

2. Orders of Her Honour of 2nd February 2017 thereby also be set aside;

3. Matter to [sic] stayed, and all Motions re-addressed pending the outcome of High Court Special Leave application, or, in the alternative, matters of 2nd February 2017 be re-heard;

4. Mr Sandy Dawson [sic] be removed from these proceedings due to inherent conflict on other matters, or, the Court address this conflict accordingly;

5. Costs reserved.

7. The plaintiff sought the following orders in her 31 March 2017 notice of motion:

1. Judgement [sic] of Her Honour Justice [sic] Gibson be suppressed immediately as a matter of urgency pursuant to Section 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW);

2. Matter heard ex parte;

3. Costs reserved.

8. The 21 February 2017 motion was initially listed for hearing on 23 March 2017 before his Honour Levy SC DCJ. The 31 March 2017 motion was initially listed for hearing on 5 April 2017 before her Honour Gibb DCJ. Both applications were adjourned to be heard by me on 27 April 2017. However, on 24 April 2017 the plaintiff made an application for a further adjournment of the hearing of her applications before me today.

9. Before setting out my reasons for refusing the plaintiff’s application for an adjournment, which is the first of the issues I was called upon to determine, I first note the following threshold difficulties the plaintiff faces:

1. The plaintiff has failed to comply with peremptory orders which now operate to dismiss her claim. She needs to satisfy the court that there are grounds to set aside those orders: Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLW 126. This has not been attempted.

2. The plaintiff’s application for the removal of Mr Dawson SC as counsel for two of the defendants was not merely without basis but eventually acknowledged by her to be so, and was withdrawn. The plaintiff also accepted that, as the High Court’s Special Leave Application was struck out on 8 March 2017, any application for a stay pending the outcome of that application was pointless. However these were the stated basis of her applications for orders (1) and (2) of her 21 February 2017 motion and for her to continue to seek those orders, she had to find other grounds. She sought instead to argue that the orders should be set aside because, as she had chosen to leave the court during the hearing, she was therefore “absent” and the orders made in her absence. This is incorrect (Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396), amounts to a canvassing of my findings on 2 and 16 February 2017, and took the defendants by surprise as it is not referred to in the affidavit in support.

3. As to the second notice of motion (which the plaintiff said she was ready to argue, and therefore did not require an adjournment), the court does not make suppression orders in relation to judgments simply because one of the parties wishes to challenge the factual findings, as I pointed out to the plaintiff in my judgment of 16 February 2017, when I rejected her previous application for me to suppress a judgment containing factual issues she challenged. Additionally, the plaintiff cannot simply bring this application for a second time; she must also satisfy the court that the evidence upon which she now relies was not available when the matter was previously before the court: Liu v The Age Company Limited [2016] NSWCA 115.

The issues the subject of this judgment

10. I set out below:

1. My reasons for refusing the plaintiff an adjournment.

2. My reasons for rejecting the plaintiff’s application under r 36.15(1) Uniform Civil Procedure Rules2005 (NSW) (“UCPR”) for the judgment to be set aside on the basis that it was obtained “irregularly, illegally or against good faith” by reason of a change in evidence given by Mr Sanders, who swore an affidavit in relation to the plaintiff’s address for service which has now been contradicted in later affidavit material. This includes my observations as to the effect of the plaintiff’s failure to comply with my orders of 2 February 2017.

Application for adjournment of the first notice of motion

11. The plaintiff only sought an adjournment of the first notice of motion. She relied upon a medical report dated 24 April 2017. She told the court that she consulted the specialist who wrote that report for the first time on that day.

12. The report states that the plaintiff is in a state of distress and not in a condition to conduct court proceedings for several weeks because of that distress. The plaintiff said that she thought she would be in a better position to argue her case in two weeks’ time. She showed the court documentation confirming a diagnosis of a psychiatric condition which will require medication and professional management, probably for a lengthy period.

13. The report in question appears to have been obtained in the course of other proceedings in the Supreme Court of New South Wales on 27 March 2017 and 6 April 2017: Kostov v YPOL Limited [2017] NSWSC 395, where it is noted that certain reports have been ordered in relation to the plaintiff’s conduct, which had resulted in adverse findings.

14. Having read the medical reports the plaintiff produced to the court, there can be no doubt the plaintiff has significant mental health issues. However, the overriding purpose of ss 56 – 62 Civil Procedure Act2005 (NSW) requires the court to take into account all relevant factors, not merely those favourable to the plaintiff.

15. In the present case, I take into account that the applications are hopeless, requests for adjournment have been made by the plaintiff on almost every date the proceedings have been before the court, costs sanctions are pointless and the prejudice to the defendants (who bear no responsibility for the delays in question) are significant: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [59].

16. Accordingly, the plaintiff’s request for an adjournment of the hearing of her first notice of motion was refused.

The plaintiff’s application to set aside the orders made on 2 February 2017

17. This application is hopeless. The orders I made on 2 February 2017 were as follows:

1. The plaintiff’s notice of motion filed on 9 November 2016 and her application to join Easy Forex Trading Limited as a fourth defendant to the proceedings be dismissed.

2. Pursuant to rule 28.5 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) proceedings 2016/51926 and proceedings 2016/86450 be consolidated.

3. The Amended Statement of Claim filed on 9 August 2016 in proceedings 2016/51926 be struck out.

4. The Amended Statement of Claim filed on 11 August 2016 in proceedings 2016/86450 be struck out.

5. Subject to orders 7 to 14 below, the plaintiff not be granted leave to file any further Statement of Claim until further order of the Court.

6. The plaintiff is not to include in any further Statement of Claim any cause of action against the second defendant (in proceedings 2016/51926) for breach of the Australian Consumer Law.

7. Pursuant to section 67 of the Civil Procedure Act 2005 (NSW) the proceedings against the first and third defendants be stayed until the plaintiff has paid:

1. the first and third defendants’ gross sum costs of $15,000 in Supreme Court of NSW Court of Appeal proceedings 2016/146390; and

2. the first and third defendants’ costs as agreed or assessed in Supreme Court of NSW proceedings 2016/87876.

8. Pursuant to section 67 of the Civil Procedure Act 2005 (NSW), the proceedings against the second defendant in proceedings 2016/51926 and the defendant in proceedings 2016/86450 (Fairfax Media) be stayed until the plaintiff has paid:

1. Fairfax Media’s costs, as agreed or assessed, pursuant to the cost order made by Justice Wilson on 7 April 2016 in Supreme Court of New South Wales proceedings 2016/87876;

2. Fairfax Media’s costs, as agreed or assessed, pursuant to the costs orders made by the Court of Appeal on 23 May 2016 and 19 September 2016 in Supreme Court of New South Wales Court of Appeal proceedings 2016/146390.

9. Pursuant to UCPR Rule 42.21(1) the plaintiff to provide security for the first and third defendants’ costs of these proceedings in the amount of $50,000 by paying that sum into court within 28 days.

10. The proceedings against the first and third defendants be stayed until security is given pursuant to order 9 above.

11. Pursuant to UCPR Rule 42.21(3) the proceedings against the first and third defendants be dismissed in the event that the plaintiff does not comply with the order of the Court to provide security for the costs of the first and third defendants pursuant to order 9 above.

12. Pursuant to UCPR Rule 42.21(1) the plaintiff to provide security for the Fairfax Media’s costs of these proceedings in the amount of $50,000 by paying that sum into court within 28 days.

13. The proceedings against Fairfax Media be stayed until security is given pursuant to order 12 above.

14. Pursuant to UCPR Rule 42.21(3) the proceedings against Fairfax Media be dismissed in the event that the plaintiff does not comply with the order of the Court to provide security for the costs of Fairfax Media pursuant to order 12 above.

15. Order that the plaintiff refrain from communicating about these proceedings with any director, officer or other employee of Fairfax Media Limited or its related entities.

16. The plaintiff is to pay the defendants’ costs of and incidental to:

1. The plaintiff’s Notice of Motion filed 9 November 2016;

2. The defendants’ objections to the Amended Statement of Claim;

3. The first and third defendants’ Notice of Motion filed 19 January 2017;

4. Fairfax Media’s Notices of Motion filed 31 January 2017; and

5. The hearing on 2 February 2017.

17. The proceedings be listed for review on 30 March 2017 at 9:00am if not otherwise dismissed.

18. Direct that a Registrar of the Court inform the plaintiff of these orders by 5:00pm on Thursday 2 February 2017 by email at [email protected].

18. The status of these proceedings is that the statements of claim currently on the file have been struck out and the proceedings are, in the alternative, stayed. These proceedings were only listed for review on 30 March 2017 “if not otherwise dismissed”. This is because:

1. Order (14) of the orders provided that the proceedings against Fairfax Media be dismissed in the event that the plaintiff did not comply with the orders and, as the date in question has now passed, that order must be made.

2. Similarly, in relation to the first and third defendants, order (11) provides that the proceedings against them be dismissed in the event that the plaintiff does not comply with the orders.

19. The last day for compliance with these orders was 2 March 2017. Accordingly, at any time after those orders were made, the defendants became entitled to seek orders from the Registry for entry of judgment as at that date.

20. Mr Dawson SC raised with me whether or not such an order could be sought from me today as part of my orders. As no notice had been given to the plaintiff, who objected to this course and sought to argue it, I took the view that the best course was for the defendants to apply to the registry to enter judgment (for the date 2 March 2017 in accordance with with my 2 February 2017 orders) and only bring a further application if there is some difficulty with this course.

The plaintiff’s fresh evidence in relation to the first notice of motion

21. The bases upon which the plaintiff seeks the setting aside of these orders is not the grounds set out in her notice of motion but because:

1. She was not accorded procedural fairness because the 2 February 2017 proceedings were conducted in her absence;

2. She now has medical evidence that her health problems prevented her from conducting this case efficiently;

3. Mr Sanders, who swore an affidavit concerning her address for service, has now revised his evidence and stated that the plaintiff did have an arrangement for the delivery of mail, which he now realised he had overlooked.

22. As to the plaintiff’s claim that she was not present when my orders of 2 February 2017 were made, I repeat the reasons why, in my 16 February 2017 judgment, I rejected this argument. I note that the plaintiff made a similar application before Adamson J on 6 April 2017 and that her Honour observed, in her judgment of that same date:

“[11] She complains that she has not been heard on the contempt charges. But, in my view, the reality of the situation is that while she has been afforded an opportunity to be heard, she did not avail herself of that opportunity.

[12] Hearings before this Court, including those that take place in the absence of a party, are not dress rehearsals. They are intended to be a final determination of the matters in issue, subject of course to the right of the unsuccessful party to appeal to the Court of Appeal.”

23. The plaintiff was in court on 2 February 2017 but elected to leave the hearing part way through, for the reasons set out in my judgment, despite my asking her to stay in order to help me to understand her case.

24. As to the plaintiff’s health issues, the plaintiff’s asserted difficulties in conducting the case (not the subject of medical evidence previously) are unfortunate, but do not represent a sufficient reason for yet another adjournment in these proceedings.

25. As to my factual findings concerning the absence of a satisfactory address for service, this material was set out in Mr Wallman’s affidavit on 19 January 2017 and included not only his staff’s interview with Mr Sanders but statements by other persons at the same office in relation to the plaintiff’s use of their premises as a forwarding address for her mail.

26. Mr Sanders’ evidence merely adds that there were instructions to send the plaintiff’s mail on to a post office box she maintains. However, a post office box is not an acceptable address for service either for a plaintiff (Kelly v Mosman Municipal Council [2010] NSWCA 370 at [64]) or for a defendant (In the matter of Cummins Equipment Hire Pty Limited [2015] NSWSC 2085). Where a litigant in person demonstrates to the court that there are reasons to withhold their address from the opposing party (for example, a history of obsessional behaviour and postings on the Internet: Piscioneri v Reardon [2015] ACTSC 61), an application for exemption from such a requirement may be made, but otherwise, parties are required to provide a bona fide address for service (almost invariably that of a legal practitioner).

27. Even accepting Mr Sanders’ fresh evidence at its highest, the arrangements the plaintiff has made for service fail to comply with the provisions of r 4.5 UCPR.

23. The plaintiff went to some lengths to withhold her address from the court, including blacking out that address from the medical reports. In the course of the hearing it was discovered that the plaintiff had omitted to black out one of these addresses. Checking of this address by Mr Dawson SC of this address revealed that this was the address for a fast food restaurant in Darlinghurst. The plaintiff challenged this and said it was the address of a hotel at which she had had temporary accommodation. Whichever is the case, neither of these is an acceptable address for service of court documents.

24. The plaintiff has not established grounds for the setting aside of my orders of 2 February 2017. There is no reason why judgment should not now be entered on the basis of those orders. As I pointed out to the plaintiff in the course of the hearing of this application, the court whose jurisdiction she should have invoked is the Court of Appeal (Coren v Master Builders Association of New South Wales Pty Ltd [2012] NSWCA 244).

Application for suppression order

30. I repeat the observations I made in my previous judgment of 16 February 2017.

Costs and other orders

31. Costs should follow the event.

32. Mr Dawson SC submitted that the plaintiff should be the subject of orders preventing her from continuing to file further applications to set aside these orders or for the suppressing of the judgment.

33. I refused that application, not because it lacks merit, but because there is no provision in the UCPR to enable court staff to refuse to accept (or judges to hear) notices of motion brought by a party, no matter how repetitive their content, or how long ago the events in question occurred, or how lacking in merit the applications may be. The litigation history resulting in Penson v Titan National Pty Ltd (No 5) [2016] NSWCA 405 is a recent example of the difficulties courts face in relation to the multiple applications.

34. Mr Dawson SC also suggested the appointment of a tutor, but I am of the view that this would not resolve the problem, and the difficulties inherent in such an application being brought must also be taken into account. It is to be hoped that the specialist’s recent diagnosis of the plaintiff’s medical problems is the first step towards her resolution of the issues underlying this litigation.

Orders

1. The plaintiff’s application for adjournment of the notice of motion filed on 21 February 2017 (Exhibit A) in relation to orders (1) and (2) (orders (3) and (4) not being pressed) is refused.

2. The notice of motion filed on 21 February 2017 is dismissed on the basis of my orders of 2 February 2017.

3. The plaintiff’s notice of motion filed 31 March 2017 (Exhibit B) is dismissed.

4. Note Judge Gibson to give short reasons later today, to be emailed to the parties, having regard to the time taken by this application.

5. The plaintiff is to pay the defendants’ costs.

6. The defendants’ applications for a stay in relation to the filing of any further notices of motion and/or the appointment of a tutor are refused, but without prejudice to the defendants’ entitlement to bring such an application in the future in the event further notices of motion are filed in this Court.

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