Liristis v White

[2024] NSWDC 557

District Court

New South Wales

Medium Neutral Citation:

Liristis and Anor v White [2024] NSWDC 557

Hearing dates:

12, 25 November 2024

Date of orders:

26 November 2024

Decision date:

26 November 2024

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph [91]

Catchwords:

CIVIL PROCEDURE – transfer of proceeding from Local Court to District Court – first plaintiff commenced Local Court proceeding for property damage to a motor vehicle arising from an accident – whilst Local Court proceeding pending, first plaintiff commences a proceeding in the District Court based on the same accident, but with an added claim for damages for personal injury – transfer application determined adversely to the plaintiff by a Judge of the Court – whether transfer application was properly before the Judge – presumption of regularity – subsequent to that adverse determination, whether first plaintiff has file a Summons in the District Court through which he brings the same transfer application – consideration of principles relating to successive interlocutory applications

CIVIL PROCEDURE – recusal application after resumption of a hearing that was part-heard

CIVIL PROCEDURE – transfer application abandoned – plaintiff applies for leave to discontinue – contest over costs consequences – whether reasonable for the plaintiff to have commenced the proceeding

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss, 56, 60, 140(2)

Motor Accident Injury Act 2017 (NSW), ss, 4.1-4.2

Uniform Civil Procedure Rules 2005 (NSW), rr, 6.2-6.4, 6.6, 15.12, 18, 36.15-16

Births, Deaths and Marriages Registration Act 1995 (NSW)

Cases Cited:

Bajramovic v Calubaquid (2015) 71 MVR 15

Gunter v State Transit Authority of NSW (2004) 61 NSWLR 414

Liu v The Age Company Pty Ltd (2016) 92 NSWLR 679

Minister for Natural Resources v NSW Aboriginal Council (1987) 9 NSWLR 154

Restaino v Urban Purveyor Group Pty Ltd [2021] NSWSC 1164

Riddell v R [2024] NSWCCA 46

Zakaria v Noyce [2012] NSWSC 981

Collier v Country Women’s Association of NSW [2018] NSWCA 36

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Re JRL; Ex p CJL (1986) 161 CLR 342

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Mr Tony Liristis (Plaintiff)
Mr Brian White (Defendant)

Representation:

Counsel:
Plaintiff (Self-represented)
Mr J Sukkar (Defendant)

Solicitors:
Hall & Wilcox Lawyers (Defendant)

File Number(s):

2024/00400930

Publication restriction:

Nil

JUDGMENT

Background

The Local Court proceeding

1. On 3 November 2023 Mr Tony Liristis commenced a proceeding solely in his own name against Brian Leslie White in the Penrith Local Court number 2023/349643 (the Local Court Proceeding). It was filed in the form of an Unliquidated Statement of Claim. By that proceeding, Mr Liristis brought a claim for damages arising from the collision of two vehicles on 26 October 2023. Notwithstanding the description of his claim as being ‘unliquidated’, under the section of the Court document titled “Relief Claimed”, at point one, it was indicated that what Mr Liristis sought was an order that Mr White pay a sum of $12,650. In his pleading, Mr Liristis alleged that he was using his vehicle to pick up food for animals at an animal centre and alleged that Mr White’s vehicle struck his vehicle whilst making a right-hand turn. Mr Lirisitis filed an amended pleading in February 2024. By that amended document, his claim for damages increased to $22,380.06.

2. Mr White defended the Local Court proceeding. By his defence (amended on 28 February 2024), Mr White admitted liability for the collision but disputed the quantum of damages (as well as contesting Mr Liristis’ asserted right to bring a claim for damages for personal injury). This proceeding remains on foot and the matter was due to come before the Local Court for review on 7 November 2024 and has a scheduled hearing date for 27-28 February 2025. On the papers in this case, the Court has not received any update as to whether any material development has occurred affecting that hearing date.

The former proceeding in this Court

3. On 10 July 2024, or 5 August 2024, ^[1] Mr Liristis commenced a proceeding in this Court against Mr White (numbered 2024/286433) by filing an ‘Unliquidated Statement of Claim’ and was filed in the Parramatta Registry of the Court. The proceeding was brought by Mr Liristis solely in his own name. I will refer to this as the ‘Former District Court proceeding’. In this Former District Court proceeding, in a nutshell, Mr Liristis sought to combine, in a single pleading, an action for damages for personal injury with the same action for damages for property damage that was the subject of the claim in the Local Court proceeding from the same accident on 26 October 2023.

   1. The Court stamp was apparently inserted on 10 July 2024, but on the JusticeLink system, it was recorded as an incoming document on 5 August 2024.

4. On or about 2 September 2024, in the Former District Court proceeding, Mr Liristis filed an Amended Unliquidated Statement of Claim ^[2] . The document ran to 121 paragraphs. One feature of the amended unliquidated statement of claim was the additional inclusion of a Second Plaintiff: ‘Infinity Group of Companies Ta’s Austral Agistment and Animal Shelter’ (which I will refer to as the ‘corporate entity’). In the ‘Unliquidated Statement of Claim’ filed on 10 July 2024, only Mr Liristis had been identified as a plaintiff. No application for the joinder of a second plaintiff was apparently brought. That corporate entity had not been identified in the originating process in the Local Court proceeding and no facts were alleged affecting that corporate entity’s interest in the pleading filed on 10 July 2024. Further, by the amended pleading of 2 September 2024, there remains no identification of any cause of action available to the corporate entity or relief that the corporate entity claimed that was separate to Mr Liristis.

   2. Technically, it also appears that this was inappropriate: The Judicial Registrar had ordered that the amended pleading was to be filed by 30 August 2024, so further leave should have been sought for an extension of time to file it. No point however has been taken on this matter.

5. On 6 September 2024, Mr White filed a notice of motion, by which he brought applications for summary dismissal and strike out in the Former District Court proceeding.

6. Between the date that Mr White brought that application for summary dismissal and the date it was disposed of, on 18 October 2024, Mr Liristis appeared to have filed a ‘Summons’ in the Former District Court proceeding although which was apparently prepared and signed on or about 8 September 2024. A copy of the ‘Summons’ is Exhibit A in the current application now before me (it is also Annexure C2 to Mr Liristis’ affidavit of 22 November 2024). That document identifies the case number (2024/00286433) appended to the ‘Unliquidated Statement of Claim’ filed on 10 July 2024. The use of a summons was procedurally irregular. It was more appropriate, as a matter of form, for whoever filed this to file a notice of motion (Uniform Civil Procedure Rules 2005 (NSW), r 18(1)) as a proceeding to which the Summons related was already on foot. Be that as it may, the orders that were sought in the Summons were:

“1. Matter at Liverpool Local Court file # 2023/00349463 to be transferred to the Parramatta District Court under section 140(2) of the Civil Procedure Act 2005, (As the matter now exceeds the jurisdiction of the Local Court)

2. The Defendants’ notice of motion filed on 6 September 2024 be dismissed.

3. Costs”

7. On 23 October 2024, Mr Liristis filed an affidavit (it being prepared on 18 October 2024). This ran to 82 pages.

8. Mr White’s application for summary dismissal of the Former District Court proceeding was heard and determined by Newlinds SC DCJ on 24 October 2024. Although the Former District Court proceeding was filed in the Parramatta Registry, Mr White’s application was heard by his Honour in the Court’s Sydney registry. On that occasion, Mr Liristis appeared for himself and the corporate entity. Mr Sukkar of Counsel appeared for Mr White.

9. At paragraph 8 of a revised version of his Honour’s ex tempore judgment (which was Exhibit 1 on the current application), Newlinds SC DCJ said:

“By an application by summons filed on 18 October 2024, Mr Liristis makes application to transfer the Local Court proceedings to the Court. Even though the matter was not listed for hearing today, with the agreement of Mr Sukkar of Counsel, who appeared for the Defendant (Mr White), and at the urging of Mr Liristis, I will deal with that summons.” (emphasis supplied)

10. On 24 October 2024, Newlinds SC DCJ acceded to Mr White’s application for summary dismissal of the Former District Court proceeding.

11. More materially, for present purposes, in connection with the current application before the Court, his Honour also dismissed Mr Liristis’ summons filed on 18 October 2024, through which he sought to transfer the Local Court proceeding to this Court. The reference in order 1 that his Honour made on 24 October 2024 to proceedings being dismissed “in their entirety” appears to encompass not only the Unliquidated Statement of Claim filed on 10 July 2024 (and the amended version of that document filed on 2 September 2024), but also the summons that Mr Liristis had filed in the Former District Court proceeding on 18 October 2024. His Honour’s reasons for rejecting Mr Liristis’ application to transfer the Local Court proceeding to this Court appear at paragraphs [25]-[31] of his Honour’s judgment.

12. Since 24 October 2024, Mr Liristis has not filed any application to set aside or vary Judge Newlinds’ decision of 24 October 2024 under Part 36 rule 15^[3] or rule 16(3) of the UCPR within 14 days of that decision.

    3. In Zakaria v Noyce [2012] NSWSC 981 at [22], Davies J explained that a judgment may be set aside because of an absence of good faith by the party procuring it but that scenario “sits uneasily with the judgment obtained after hearing at which a party was present”. However, at [25] and [36], Davies J also indicated that a denial of procedural fairness constituted an ‘irregularity’ for the purposes of r 36.15.

The application now before the Court

13. On 29 October 2024 Mr Liristis and the same corporate entity identified in the amended unliquidated statement of claim appeared to file in the Former District Court proceeding filed a Summons. The qualification will be explained shortly. The Court issued a Notice of Listing on the same date, which notice identified the listing of the matter on 11 November 2024 at 9:30am for directions.

14. The prayers for relief in the Summons are:

“1. Matter at Liverpool Local Court file # 2023/00349463 to be transferred to the Parramatta District Court under section 140(2) of the Civil Procedure Act 2005, (As the matter now exceeds the jurisdiction of the Local Court)

2. The Defendants’ notice of motion filed on 6 September 2024 be dismissed.

3. Costs”

15. The filing of this document again appeared to be procedurally irregular. The first point is that inserted within this document was a new case number (2024/400930) and a listing date of 11 November 2024, with the Court seal. These are indicia of an originating process (UCPR, r 6.2). However, if the intention was to commence a new proceeding by summons, there was nothing to suggest that the relief sought in a new originating process was of a kind that should ordinarily be sought in a summons (UCPR, rr 6.2-6.4). Notwithstanding this, by r 6.6, proceedings are not defeated simply because the wrong form of originating process is chosen. But the form of process selected by whoever filed the summons meant that by the filing of the summons, a new proceeding had been commenced in this Court. For ease of reference, I will henceforth refer to the proceeding as the ‘Current District Court proceeding’.

16. Secondly, the most cursory observation of this Summons is that, in terms of its substantive content, it almost entirely duplicated the content of the summons he filed on 18 October 2024 in the Former District Court proceeding, subject to the crossing out of the case number, the hearing details and the Court’s stamp of 18 October 2024 curiously being inserted instead of 29 October 2024.

17. Thirdly, again, there was the feature of the corporate entity being joined as a second plaintiff, with no material facts pleaded to its interest or any relief that it seeks (independently from Mr Liristis). Were it not for the ultimate conclusion I reach later in these reasons, real consideration would be needed to be given as to whether it should be removed as a second plaintiff under r 6.29 of the UCPR.

Case managing the current District Court proceeding

18. On 11 November 2024, I was sitting as the List Judge presiding at the November 2024 Parramatta Civil Sittings. It was the first day of sittings scheduled to run for 3 weeks. As might have been expected, multiple proceedings were before me at a call over. The Summons in the Current District Court proceeding was returnable before me on that day. Mr Liristis appeared, but Mr White did not.

19. To briefly digress, on each of the three days this matter was before me ^[4] , Mr Liristis purportedly appeared by AVL. I say ‘purportedly’ because I could not see Mr Liristis, but could only hear him. Mr Liristis asserted, on the other hand, that he could not only hear me, but see me as well. Quite how that occurred was as inexplicable. In the circumstances, on reflection, where a Judge is unable to see a litigant, the procedure is unsatisfactory.

    4. 11, 12 and 25 November 2024

20. At any rate, Mr White’s non-appearance on 11 November 2024 raised a question whether Mr White had been served with the process and the matter was adjourned overnight.

21. At about 1:26pm on 11 November 2024 my Associate sent an email to Mr Townend (and Mr Parker). The email indicated that my Associate had ascertained from the Local Court file, a copy of which the District Court Registry had obtained, that those legal representatives had appeared for Mr White in the Local Court proceeding (MFI 2). My Associate was alerting those practitioners to the re-listing of the Current District Court proceeding to 9:30am on 12 November 2024. This email was copied to Mr Liristis as per the email address on each of the summons filed on 18 October 2024 and 29 October 2024.

22. To interrupt the procedural chronology momentarily, on 25 November 2024 Mr Sukkar of Counsel said (from the Bar Table) that Mr Townend – and by extension he – was unaware of the 11 November 2024 listing.

23. The next day, when the matter was again before the Court, being 12 November 2024, Mr Sukkar appeared for Mr White. That was not, however, because of Mr White having been served with a summons that he appeared. It was because of my Associate’s email to Mr Townend, Mr Sukkar’s instructing solicitor, on 11 November.

24. Mr Sukkar indicated he was ready to proceed to deal with summons. So too, for a time, did Mr Liristis. For a time, the matter was therefore treated as if it was a hearing. During a break in the proceeding on 12 November 2024, Mr Liristis sent my Associate an email chain of communications. This was admitted as Exhibit B on the transfer application (even if technically much of its content could be said to have amounted to submissions). However, after receiving evidence on the application by the parties on 12 November 2024, Mr Liristis asked for the matter to be adjourned for final argument, citing the notice of listing of 29 October 2024 that was issued by the Court as identifying that the matter was referred to me (originally on 11 November 2024) only for directions. Although evidence had been admitted for both parties on his application, I accommodated Mr Liristis’ request and the matter was adjourned again, then resumed for argument, on 25 November 2024; with the intervening delay attributable to other Court commitments Mr Liristis said he was involved in (12/11/24, T 8-9).

25. Given the not insubstantial length of the adjournment (12 to 25 November), I also permitted the parties the opportunity to serve any further proposed supplementary evidence that they wished to rely upon prior to the resumption of the hearing. That email will be placed on the Court file. That email is marked as MFI 3.

26. On 15 November 2024, at 11:11am, my Associate received an unsolicited email from an email address of a third-party entity that had not been on the record and was apparently not a solicitor. This was ‘[email protected]’. I arranged for my Associate to respond by email. Those emails have both been placed on the Court file. Together, they will also be marked as MFI 4.

27. On 20 November 2024, my Associate sent a further email to the parties indicating the Court’s preference for appearances for the resumed hearing on 25 November 2024 to be in person; whilst providing connection details if the parties wished to appear by AVL. This will be marked as MFI 5.

Application for recusal

28. Yesterday, on 25 November 2024, and before resumption of the part-heard transfer application, Mr Liristis made a verbal application to me to recuse myself. The recusal application was substantially based upon what occurred on 12 November 2024.

29. I now give my reasons for my refusal to accede to Mr Liristis’ application.

30. No written submissions were furnished, although much of what Mr Liristis relied upon were matters was adverted to in his affidavit on the recusal application (Exhibit A). I would note at this point that Mr Liristis also relied upon an affidavit he had prepared filed on 23 October 2024 (Exhibit B) which actually preceded any involvement that I had with his underlying substantive dispute. Be that as it may, at the start of yesterday, Mr Liristis made complaints that I had:

• failed to read material that was available to me;

• continued to deal with the proceeding in circumstances where he said he did not file and Summons on either 18 October 2024 or 29 October 2024;

• listed a proceeding (on 12 and 25 November 2024) which he denied having instigated;

• ‘stormed out’ of the hearing on 12 November 2024 without having heard all that Mr Liristis wanted to say; and denied Mr Liristis the opportunity to rely upon evidence;

• interrupted him in exchanges;

• caused hardship to him and his animal shelter;

• allowed Counsel for the defendant (respondent), Mr Sukkar, to make submissions without evidence;

• permitted the defendant to tender a judgment of Newlinds SC DCJ (24 October 2024, Exhibit A on the transfer application) previously made on the application before me; and rejected an item of evidence Mr Liristis wished to rely upon (12/11/24, T 5);

• breached a duty of care to him (and inferentially also his animal shelter). This was manifested, apparently, by his hearing (when waiting for his matter to be reached by me on 11 and 12 November) exchanges between legal representatives and myself in a proceeding concerning an application for a change of name of a child under the Births, Deaths and Marriages Registration Act 1995 (NSW).

• Having had dialogue with both Judicial Registrar Howard and Newlinds SC DCJ about his matter;

• my being motivated (in some way) of animus I had to him because of his giving evidence against a ‘paedophile judge’, who subsequently lost judicial office.

31. Mr Liristis also appeared to rely upon my conduct in listening to his application on 25 November 2024. I understood him to complain about my interruptions of him when presenting his recusal application, including my asking him questions about the identity of persons whose conduct he was referring to in various instances (including, for instance, a Duty Judge of the Supreme Court who he said had provided ‘advice’ to Mr Liristis on an appeal of the decision of Newlinds SC DCJ); forcefully putting down a piece of paper on the Bench; and ‘storming’ off the Bench when adjourning (at about 10:22am). Some of these assertions struck me as curious in circumstances where I could only hear Mr Liristis, but as Mr Liristis reminded me, he was able to see me even if I could not see him.

31. Be that as it may, Mr Sukkar, who appeared for Mr White, opposed the recusal application over the objection of Mr Liristis, who indicated his belief that he was entitled to deny Mr Sukkar the opportunity to be heard on, or respond to, his recusal application. (As noted, this was one ground for his recusal application). I note, for completeness, that when Mr Sukkar on his feet addressing the Court, on multiple occasions, Mr Liristis talked over him. More than once, I indicated to Mr Liristis that if he continued to disrupt Mr Sukkar, I may have to disconnect his audio link to the Court; so as to enable me to hear what Mr Sukkar had to say.

32. Mr Sukkar submitted that there was no basis in the evidence to support actual or apprehended bias. He submitted that there could not have been any denial of procedural fairness on 12 November 2024 in circumstances where, shortly after the hearing, I arranged for the parties to have further opportunity to supply supplementary evidence to that which had been tendered in Court on that day. Indeed, on that day, Mr Sukkar reminded me that I had even declined Mr Sukkar’s application made on 12 November to summarily dismiss Mr Liristis’ summons and adjourned the matter to 25 November. As to my conduct in hearing his application yesterday, Mr Sukkar submitted that I had only adjourned the proceeding, to arrange for my Associate to email to Mr Liristis the transcript of the hearing of 12 November 2024 (a matter which Mr Liristis had hitherto complained he had not received).

33. On the subject of the transcript of 12 November 2024, I note further that on multiple occasions during the hearing of 25 November, on multiple occasions, I inquired of Mr Liristis whether he sought further opportunity to consider for himself the transcript of 12 November. He did not.

34. I note also, that after judgment was reserved yesterday, the Court received further unsolicited email communications from Mr Liristis (MFI 6). After the second of these, I arranged for my Associate to inform Mr Liristis once a hearing is concluded, the Court does not receive further correspondence from a litigant or its legal representative unless permission is granted (these further communications are MFI 6 and 7).

Consideration

36. Mr Liristis indicated his reliance upon actual and apprehended bias.

37. As to actual bias, I am mindful of the observations of the Court of Appeal in Collier v Country Women’s Association of NSW [2018] NSWCA 36 at [27]-[46].

38. As to apprehended bias, I am mindful of the two-stage test stated by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]. I am also conscious of the admonition that Judges should not accede to readily to applications for disqualification, lest litigants succeed in effectively influencing the choice of judge in their own cause: Re JRL; Ex p CJL (1986) 161 CLR 342 at 352.

39. As to the former, there is no proper basis for the grave finding of actual bias which strikes at the heart of the judicial oath taken at my appointment. It seems to me that the highest this application rose was that I had an animus, or perhaps an ingrained prejudice, against Mr Liristis because of my concern as to how he had previously treated Judicial Registrar Howard, and/or Newlinds SC DCJ; or, alternatively, because of his being involved, directly or indirectly, in the removal of a former judge.

40. As I asserted as early as I practicably could to Mr Lirstis (who, as I have said, did not appreciate interruptions), I had no discussions with either Judicial Registrar Howard or Judge Newlinds SC about this matter at all. Further, according to my recollection, I have never previously had any ‘dealing’ with Mr Liristis and have no knowledge or information about any conduct by him directly or indirectly leading to a former Judge (whom Mr Liristis did not name) losing office.

41. Beyond my concern to try to fairly and justly administer and apply the law (including all of its substantive and procedural aspects), I am in fact disinterested in the fate of any legal proceeding commenced by Mr Liristis.

42. There was no ‘storming off’ the Bench, on the occasions of either 12 or 25 November 2024. It is true that I went off the Bench on 12 November at a time when Mr Liristis sought to continue to address me, but as the transcript indicates, Mr Liristis protested my decision to adjourn on 12 November and sought to argue with my decision to adjourn. That was on the subject of whether he might be able to rely upon further evidence additional to that which he had tendered earlier that day. But as Mr Sukkar emphasised, later on 12 November 2024, by an email through my Associate, Mr Liristis (and Mr White) were given the opportunity to serve further supplementary evidence that had been served that day after I had granted the adjournment that Mr Liristis had requested from me. In short, Mr Liristis obtained the procedural results he sought when I left the Bench, upon adjournment, on 12 November.

43. On 25 November 2024, my going off the Bench was to give Mr Liristis time to consider the transcript of 12 November, after his initial complaint that he had not had previously had access to this.

44. Finally, on the ground of actual bias, I accept Mr Sukkar’s submission that my act in rejecting his summary dismissal application is the antithesis of actual bias towards Mr Liristis. To that, I would add further, the various adjournment applications (the long one on 12 November and the short one on 25 November) were each fundamentally for Mr Liristis’ benefit, in giving him further time to collect evidence and to make argument. In summary, aside from adverse evidentiary rulings indicated on 12 November, ^[5] I had not actually determined nor foreshadowed any further determination against Mr Liristis. To the contrary, I had given him the opportunity of serving further evidence by and before 25 November when it was anticipated that the parties would make their respective arguments on the transfer application.

    5. In which Mr Liristis sought to tender a Court Listing Notice (of 29 October 2024) and objected to evidence upon which Mr White sought to rely upon

45. On the aspect of apprehended bias, applying the first stage of the Ebner, I do not consider that Mr Liristis has identified what it is that might lead me to decide the case other than on its legal and factual merits. Therefore, I do not consider what the logical connection is between that matter and my ‘feared departure’ from deciding the case on its merits.

46. In both facets of the Ebner test, it is necessary to also consider that by a summons apparently filed on 29 October 2024, I was being asked to adjudicate upon whether a Local Court proceeding should be transferred to the Local Court. That is, a fairly regular procedural application involving (subject to what I say later in these reasons) little about the merits of a dispute between the parties. As at the date he brought his recusal application, I had not made any decision against Mr Liristis at all.

47. It is true that, on 25 November, I asked questions of Mr Liristis, amongst other things, principally about the circumstances in which a summons was filed on 29 October 2024; whether he had filed an appeal in the Court of Appeal against Newlinds SC DCJ’s decision. Mr Liristis indicated during the course of his argument on the recusal application that he wanted to make it, without interruption. I told Mr Liristis that I could not guarantee that. No litigant, whether they be self-represented or not, is in my view entitled to seek to silence a judicial officer in the way that Mr Liristis sought to silence me. Not least is that so because a judicial officer is statutorily obliged to administer the case management objectives underlying s 56 of the Civil Procedure Act 2005 (NSW). When those who appear before the Court, whether they be legal representative or a self-represented litigant, stray from what a judicial officer apprehends facilitates those case management objectives, the officer, in my view, has a duty to intervene.

48. Other complaints of the kind specified seem to go to suggested competence or misapprehension of his position. Whether or not they may amount to legal error, they do not found a proper basis for recusal; unless perhaps it is suggested that the conduct was deliberate and advertent. I do not detect this in respect to these particular aspects of Mr Liristis. If he does however, I disagree since they take the argument for bias no further than other complaints made which I have rejected. His complaint about how I dealt with an application by another litigant concerning an application for a change of a child’s name is irrelevant; particularly in view of the non-publication order that subsisted in that particular proceeding and the absence of complaint by the litigant’s legal representative about my referring to the child’s name in Court.

49. For all of these reasons, the recusal application was rejected.

The resumption of the hearing (after the recusal application)

50. When the motion resumed on 25 November 2024, and after I had refused the recusal application Mr Liristis relied upon the affidavit he had filed on 23 October 2024. He also relied upon an affidavit dated 22 November 2024 (which had been prepared after the date the Court had directed him to serve evidence). These were given an Exhibit marking for the purposes of the recusal application (A and B). I have treated them as Exhibits C and D for the purposes of the transfer application.

Submissions

51. When the matter came before me, part heard, yesterday, as noted, Mr Liristis actually disavowed the circumstance that he brought the Current District Court proceeding. It was, he claimed, the fault of the District Court registries (Sydney or Parramatta – he did not specify) that a summons was filed, respectively, on 18 October 2024 and 29 October 2024. His position to the Current District Court proceeding was set out in paragraphs 44-48, in particular, of his affidavit of 22 November 2024.

52. Mr Liristis then indicated that since the matter was last before me on 12 November 2024, prior to its resumption yesterday, an agent acting on his behalf had reached out to the defendant, offering to discontinue the proceeding but on the term that he did not have to pay the defendant’s costs of the proceeding. I queried Mr Liristis that it was difficult to “rationalise” (‘reconcile’ would, on reflection, have been a more appropriate word to use) how he could deny filing a proceeding whilst at the same time applying to discontinue it. To this, Mr Liristis verbally indicated (ie. without referring me to any document) that the Registry had advised him that a discontinuance would require the defendant’s consent. Be that as it may, he suggested that it was unreasonable in the circumstances for the defendant to insist upon the automatic operation of court rules; which would effectively see to it that it is a plaintiff who (absent consent) bears the defendant’s costs of a discontinued proceeding^[6] .

    6. UCPR, r 42.19

53. Mr Sukkar submitted that the transcript of what occurred on 12 November 2024 clearly indicated that Mr Liristis declared his reliance upon a summons he had filed on 29 October 2024. He said that following that declaration, he had every opportunity to correct that. His position declared in Court on 25 November amounted to a “fabrication”. He interpreted Mr Liristis as requesting that the proceeding should be discontinued (rather than withdrawn). There was no reason why the automatic costs rules applicable to a discontinuance should not apply.

54. In his reply, Mr Liristis referred to the defendant not yet having filed any evidence in the proceeding. Thus, he submitted, Mr Sukkar was not entitled to raise submissions against him. He referred to a third party, on his behalf, inviting the parties to discontinue on the basis that he not bear any costs liability. It was, he indicated, unreasonable for Mr White to refuse that invitation.

Consideration

55. After all that had occurred over three days before me, the dispute ultimately turned out to centre upon the question of whether, for the purposes of r 12.1 of the UCPR, the Court should grant leave to Mr Liristis to discontinue the Current District Court proceeding, 2024/400930. A transfer application had ‘morphed’ into an application to discontinue.

56. On the basis of his submission to the Court on 25 November, it appeared that Mr Liristis wished to abandon the proceeding. Mr White did not appear to want it to linger. However, Mr White insisted upon the application of the automatic costs consequences associated with a discontinuance and Mr Liristis baulks at having to assume that liability.

57. The narrower question, then, is whether, as a term of the discontinuance to be granted with leave, the Court should ‘otherwise’ provide for the usual operation of the rule, in r 42.19, that the plaintiff pay the defendant’s costs, as at the discontinuance.

58. Rule 42.19 was judicially considered in Ibrahim v PERI Australia Pty Ltd [2013] NSWCA 328 when Beazley P (as her Excellency then was, and with whom Leeming JA agreed) said (at [17]-[19]) that relevant considerations included:

“… the principles that are to be derived from them, in circumstances where a Court is requested to make a costs order, when proceedings have not been heard to termination include the following: whether a party acted reasonably in commencing the proceedings; whether a party had been successful in obtaining interlocutory relief; whether the party sued had acted reasonably; whether the responding party had acted reasonably in defending the proceedings; whether the proceedings terminated after interlocutory relief had been granted; and further, whether the primary judge was satisfied that the party seeking to terminate the proceedings prior to a full hearing had almost a certain chance of success.

18 An applicant for costs where proceedings had not been heard to fruition need not prove each or every one of these matters but they are the factors that the courts have considered relevant to a determination as to whether to order costs.

19 In making that determination, the Court takes into account the objective circumstances and not the subjective motive of the party seeking to discontinue, nor does the Court determine the dispute that the party sought to avoid by discontinuing.”

Did the applicant commence the proceeding reasonably?

59. A discomforting matter is that Mr Liristis has made assertions about procedural events which, with respect, are not always consistent. Further, the Court has been faced with shifting sands; with the Court implicitly invited to go behind the underlying Court documents in order to ascertain what events have occurred. Needless to say, it places a strain upon judicial resources when a Judge is invited to look behind what appears on the face of Court documents. Be that as it may, in disputes of this kind, I have a general predisposition to place greater weight on what the Court records say, and the inherent probabilities, over Mr Liristis’ undocumented assertions of his recollections.

60. The first question was whether Mr Liristis filed a summons on 18 October 2024.

The 18 October 2024 summons

61. In his correspondence to the Court (Exhibit B) and paragraphs 28 and 31 of his affidavit of 22 November 2024, Mr Liristis contested that he had ever filed any summons on 18 October 2024, which was heard by Newlinds SC DCJ, or that it was even properly before Newlinds SC DCJ on 24 October. It is possible that Mr Liristis has confused the filing of the summons (being 18 October 2024) and the date he signed or otherwise prepared the summons (being 8 September 2024). The critical matter though is the fact of when it was filed which requires the Court to deal with it.

62. I am mindful of the undesirability of expressing concluded views on this matter, in view of Mr Liristis’ indications (notwithstanding they concern a procedural judgment given over 28 days ago) that he might try to invoke appellate rights. But although the issue may have been somewhat confusing, due to the involvement of both the Parramatta and Sydney Registries of the Court, it strikes me that the prospects of Mr Liristis persuading the Court of Appeal that the document that is Exhibit A was not filed on 18 October 2024 and was not before Newlinds SC DCJ on 24 October 2024 are remote; especially in light of the presumption of regularity. ^[7]

    7. Minister for Natural Resources v NSW Aboriginal Council (1987) 9 NSWLR 154 per McHugh J at 164

63. But then it appeared to be the case that yesterday, Mr Liristis accepted that the application for a transfer of the Local Court proceeding had been determined (albeit wrongly) by Newlinds SC DCJ; thereby obviating any need for me to consider it.

64. I reject Mr Liristis’ original submission in that regard. I am comfortably satisfied that he filed a summons seeking the transfer on 18 October 2024 and further, that such application was heard and determined by Newlinds SC on 24 October 2024.

The 29 October 2024 summons

65. The next question was whether Mr Liristis filed the summons on 29 October 2024 by which this proceeding was commenced.

66. When the matter was before me (on the second day, on 12 November 2024), at T4-5, it was pellucidly clear that Mr Liristis indicated that he wanted to rely upon the fact of his filing a summons on 29 October 2024. Contrary to his submissions, I find on the basis of his conduct that he was instrumental in the filing of the document on 29 October 2024, which he has since disavowed.

67. I accept Mr Sukkar’s submission that it was not until 25 November 2024 that Mr Liristis effectively performed a volte face, in disowning any involvement in its filing. His contention appeared to be that it was the District Court registry which, independent of his own agency, and for which he may obtain a procedural benefit (the transfer of the Local Court proceeding) had commenced the proceeding. What would have possessed a staff member of the District Court registry to unilaterally file a summons, to commence a proceeding without being asked by a litigant, is not obvious. Mr White plainly had no incentive in bringing the application. Mr Liristis’ inherently improbable disclaimer for the filing of the document cannot be accepted.

The consequence of findings about the filing of the two summons

68. As at 12 November 2024, the Court was therefore presented with a summons of 29 October 2024 that prima facie, sought orders from the Court that were the same as those in the summons filed on 18 October 2024, both of which I find that Mr Liristis filed, or was instrumental in filing.

69. I find that by filing his summons filed on 29 October 2024 Mr Liristis appeared to seek to obtain from the Court a different result to the transfer application of the Local Court proceeding than that which he had obtained before Newlinds SC DCJ on 24 October 2024.

70. Mr Liristis justified this course by challenging Newlinds SC DCJ’s decision in certain respects. In email correspondence to my Associate, relevantly, he indicated his intention to appeal that decision. Mr Lirisitis also sought to rely upon an email that he sent to my Associate at 10:56am on 12 November 2024 (being the copy of an email originally sent by him to my Associate at 9:24pm on 11 November 2024) which, as previously noted, I admitted (Exhibit B), and which, amongst other things, explained his attitude towards Newlinds SC DCJ’s decision. By the same email, Mr Liristis asked me to adjourn the Summons filed on 29 October 2024, being the current District Court proceeding, so as to enable that appellate process to occur.

71. The findings I have made, so far, as to the circumstances of the filing of the two summons in this Court squarely brings into attention the reasonableness of Mr Liristis filing the summons on 29 October. In dealing with successive interlocutory applications, the appropriate principles were those stated by the Court of Appeal in Bajramovic v Calubaquid (2015) 71 MVR 15 (per Emmett JA; Leeming JA and Adamson J – as her Honour then was) at [39]-[44] (citations omitted):

“39….The principles of res judicata and issue estoppel are desirable for the administration of justice to ensure finality and to avoid inconsistency of judgments. Those considerations, however, do not apply with the same force in relation to interlocutory orders and decisions, where there has been no determination on the full merits.

40. Interlocutory orders create no res judicata or issue estoppel and the Court has jurisdiction to set aside, vary or discharge an interlocutory order. Similarly, where an application for interlocutory relief is refused, the Court has jurisdiction to entertain a second application for the same relief. However, clearly enough, it would be conducive to injustice and would be an enormous waste of judicial time and resources if there were no limits imposed on the entitlement of a party to re-litigate at will an application for interlocutory relief. That is to say, it may well be an abuse of process for a party who has been unsuccessful in obtaining interlocutory relief or in resisting interlocutory relief to re-litigate the very same question. However, there will be circumstances in which it will not be an abuse of process.

41. It would not ordinarily be an abuse of process to endeavour to do so where there has been a change of circumstances or where evidence has become available that was not available at the time of the original hearing. However, that is not an exhaustive statement of the circumstances in which a second application after an initial unsuccessful application may be made or in which an application may be made to set aside, vary or discharge an order already made. The overriding principle is that the Court must do whatever the interests of justice require in the particular circumstances of the case. While the ordinary rule of practice is that an application to set aside, vary or discharge an order or a second application after a first application has been refused must be founded on a material change of circumstances, or the discovery of new material that could not reasonably have been put before the Court on the hearing of the original application, that is no more than an ordinary rule of practice. The interests of justice must prevail in the particular circumstances of any case. In particular, Balla DCJ accepted, and it has not been disputed in this Court, that there is no general principle that a second interlocutory application that raises additional evidence that was available at the time of the first application cannot be entertained.

42. A subsidiary question was whether the provisions of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act), particularly ss 56-60, should be taken into account in determining whether a second application for an extension of time to commence proceedings should be permitted where the application is based on evidence that could have been adduced at the time of an unsuccessful first application but, for whatever reason, was not adduced.

43. The overriding purpose of the Civil Procedure Act and the rules of Court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Court must seek to give effect to that overriding purpose when it exercises any power given to it by the Act or rules of Court. Further, a party to civil proceedings is under a duty to assist the Court to further that overriding purpose. For the purpose of furthering that overriding purpose, proceedings are to be managed having regard to the following objects:

the just determination of the proceedings;

the official disposal of the business of the Court;

the efficient use of available judicial and administrative resources; and

the timely disposal of the proceedings, and all other proceedings in the Court.

44. In deciding whether to make any order or direction for the management of proceedings, the Court must seek to act in accordance with the dictates of justice. For the purpose of determining what are the dictates of justice in a particular case, the Court must have regard to the overriding purpose described above and may have regard to a number of other matters, including:

the degree of expedition with which the respective parties have approached the proceedings;

the degree to which the respective parties have fulfilled their duties to assist the Court to further the overriding purpose described above; and

the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. ^[8] ”

Arguable abuse of process?

8. These principles were followed in Liu v The Age Company Pty Ltd (2016) 92 NSWLR 679. See also Riddell v R [2024] NSWCCA 46 at [48]-[49].

72. In my view, Mr Liristis’ filing of the summons on 29 October 2024 could not be said to be reasonable conduct in commencing the proceeding. To the contrary, I would have found that, arguably, it constituted an abuse of process; and was therefore bound to fail. Mr Liristis had his application for transfer of the Local Court proceeding determined by a Judge of this Court. He had signalled his displeasure with that determination and foreshadowed his intention to utilise appellate procedure. He did not exercise his rights to set aside or vary the order Newlinds SC DCJ made under Part 36 rr 15 or 16 of the UCPR, in which he could ventilate complaints about the decision without commencing a new proceeding. Further, notwithstanding that Judge Newlinds’ decision was delivered over 28 days’ ago, there is no objective evidence to indicate any summons being filed for leave to appeal that decision ^[9] . In this respect, at the hearing on 25 November, Mr Liristis refused to answer my question as to whether he had filed appellate process. He appeared, in fairness, to suggest that he had not yet obtained a transcript of what occurred on 24 October 2024. Nevertheless, he did not wish to identify the source of his advice that he represented to the Court to the effect that he had reasonable prospects of success of an appeal. In commencing the new proceeding in this Court, he had taken the least desirable course possible.

Other reasons why the summons would likely have been dismissed

9. Cf UCPR, r 51.10(1)(b)

73. But lest that provisional view be wrong, there would have been other reasons for dismissing it, which would have supported the finding that it was not reasonable for him to have commenced the current proceeding on 29 October 2024. I am conscious here, that final argument on some of these matters was averted, ultimately, because of the application for discontinuance. Nevertheless, the authority in Ibrahim legitimates inquiry (if an attenuated one) into counterfactuals. After Mr Liristis’ recusal application was heard and rejected, he was ready to apply for a discontinuance. That was not surprising. It had been flagged in the email of the third party on 15 November 2024 (MFI 4). The obligation fell upon Mr Liristis to advance, and if necessary rebut, arguments as to the terms of any discontinuance at the hearing on 25 November 2024.

74. It was not just the circumstance that there is nothing to indicate any new evidentiary material (including material that could not reasonably have been obtained prior to 24 October 2024) or any other change since the decision of Newlinds SC DCJ, although there was that matter.

75. Even if he succeeded in any appeal, and on the (admittedly) impressionistic basis ^[10] that he would (or indeed will) contend that he was denied procedural fairness or natural justice by Newlinds SC DCJ on 24 October 2024, it would be likely that the relief he obtained would be the remittal of the interlocutory application he filed on 18 October 2024 to the Court. If, on the other hand, he loses on appeal upon the exercise of such rights, Newlinds SC DCJ’s decision to dismiss the transfer application would be vindicated at the intermediate appellate level.

    10. Mr Liristis did not supply the Court with any Summons for leave to appeal, draft notice of appeal or draft summary of argument on an application for leave to appeal on the current application to enable the Court to understand his precise complaints of Judge Newlinds SC’s decision.

76. On either basis, it strikes me that Mr Liristis would likely not have been any worse off if his transfer application brought by summons on 29 October 2024 was to be dismissed. That is, he was unlikely to be substantively prejudiced if the Current District Court proceeding was dismissed. To the contrary, as indicated, it strikes me as prima facie an abuse of process for a litigant in Mr Liristis’ position to effectively seek to hedge his bets by filing, as he did the Current District Court Proceeding, by summons, in order to obtain an alternate result to an earlier decision by the Court as to whether the transfer of the Local Court proceeding to this Court should occur, in the event that Mr Liristis’ foreshadowed exercise of his appellate rights fail to produce the outcome that he seeks.

77. On the other side, Mr White was vexed by the prospect of having not only a decision subject to pending appellate determination, but a new proceeding recently instituted on the same question. He had already incurred some costs to date in the Current District Court proceeding to supplement the costs incurred in the Former District Court proceeding. It was not (and is not) known to the Court whether the past costs order could effectively be enforced against Mr Liristis. Not only that, there was (and is), as indicated, an extant hearing date for the property damage claim in the Local Court proceeding reasonably early in 2025.

78. Transfer of the Local Court proceeding to this Court would have meant that Mr White would inevitably lose the benefit of having the property damage claim against him determined in the Local Court in February 2025, when it would be uncertain when a hearing in this Court could proceed. This was one discretionary matter militating against the transfer application that was adverted to by Beech-Jones CJ at CL (as his Honour then was) in Restaino v Urban Purveyor Group Pty Ltd [2021] NSWSC 1164 (‘Restaino’) at [6].

79. It does not strike me that Mr Liristis would have been prejudiced if his property damage claim was to have been heard first. It would appear to have been unlikely, in view of Mr White’s conduct, that the latter could raise any Anshun estoppel point if Mr Liristis’ property damage claim was first resolved in the Local Court; with Mr Liristis left to subsequently litigate any valid claim he had for damages for personal injury arising from the same accident in this Court.

80. That, however presupposed that a valid action for damages for personal injury existed. In this respect, although it is not necessary to express a concluded view, in my view, it would have been highly unlikely that an action for damages for personal injury arising from a motor vehicle accident on 26 October 2023 could have been be commenced (or heard) in this Court, upon a transfer from the Local Court, having regard to ss 4.1 – 4.2 of the Motor Accident Injury Act 2017 (NSW) and, in particular, the plain legislative policy that damages awards arising from such actions are, in such circumstances, preferably to be determined by the Personal Injury Commission. There is nothing to indicate that Mr Liristis has applied to the Commission or sought an exemption from doing so^[11] . In this regard, it matters not how Mr Liristis sought to plead the form of his claim with the design or effect of circumventing those statutory restrictions. It is the substance of his claim that is material.

    11. Motor Accident Injuries Act 2017 (NSW), rr 6.31, 7.32

81. Further, even if that is wrong, on the evidence before the Court on the current application, there was no evidence to suggest, even at the lower threshold level of an interlocutory application, that the extent of the asserted injuries (be they physical or psychological) from a motor vehicle accident would likely have exceeded the Local Court’s monetary jurisdiction of $100,000. In this regard, applicants for a transfer of proceedings from a lower court are expected to at least supply the Court with evidence sufficient to indicate a real chance that the recoverable amount for damages will exceed the monetary jurisdictional limit of the lower court: Restaino at [5]-[6]. Here, no heads of damage had been identified and no draft Statement of Particulars was provided (as required by Part 15 r 12 of the UCPR). Of course, a transfer application is not the occasion for a dress rehearsal for the deployment of a party’s evidence on damages. But it remained the case that the onus of persuasion to transfer the Local Court proceeding would have fallen upon Mr Liristis and part of that involved something more than mere speculation or bare subjective assertion that his claims, individually or in combination, were likely to exceed the Local Court’s monetary jurisdiction.

82. Given my provisional view that any action for damages for personal injury arising from a motor vehicle accident – no matter how it was described in form – had such poor prospects of being properly run in this Court, the basic premise for the transfer application was not sustainable.

83. That would have left Mr Liristis only with his application to transfer damages claim for property damage to his motor vehicle. On the basis of the evidence before this Court on the current application, there was nothing other than Mr Liristis’ articulated subjective belief to indicate that it is arguable that his property damage claim may exceed the monetary jurisdiction of the Local Court. I go back to the outset of these reasons when indicating the claimed payment for the sum of $12,650 (later increased to over $22,000). There is nothing else, in that pleading in the Local Court or even in the Amended Unliquidated Statement of Claim that had been filed on 2 September 2024 in the Former District Court Proceeding indicating the extent of damage to the vehicle itself would likely exceed the Local Court’s monetary jurisdiction.

84. Finally, there is nothing before the Court to indicate that either any property damage claim or personal injury claim would likely be substantial. This would have fed into the consideration in s 60 of the Civil Procedure Act 2005 (NSW). regarding the proportionality of costs to be expended in pursuing either or both claims, both apparently minor in nature, in this Court. It also relevant to the consideration whether the judicial and administrative resources of this Court should be deployed to deal with either or both claims in such circumstances.

85. For all of the above reasons, and reiterating a need for some caution since I have dealt with hypotheticals, I do not regard it as reasonable for Mr Liristis to have commenced the proceeding when he did on 29 October 2024. Had the transfer application been pursued, it had virtually a certain probability of failure.

Has Mr White acted unreasonably?

86. The only material point raised against Mr White was his apparent refusal to acquiesce or agree to Mr Liristis’ proposal (or more accurately proposal advanced on Mr Liristis’ behalf by a third party) that there be a discontinuance with no liability for costs incurred by Mr Liristis.

87. I do not regard a defendant party’s reliance upon the usual operation of a court rule (rule 42.19) as to the automatic consequence of a plaintiff’s discontinuance to be unreasonable.

88. Mr Liristis also appears to criticise Mr White, more generally, for his conduct having regard to admissions Mr White made in the Local Court proceeding. It may be accepted that Mr White made “admissions” on liability, but it is patently apparent he contests the claim on quantum; as Mr White was prima facie entitled to do. At any rate, the reasonableness of Mr White’s attitude towards defending the Local Court proceeding may be a matter in due course for the Local Court to consider.

89. In all of the circumstances, Mr Liristis has not persuaded me why I should exercise my discretion in r 42.19(2) to ‘otherwise order’ in the sense of altering the usual cost consequences of his application to discontinue the current proceeding.

90. Mr Sukkar did not make any special application for a costs order.

91. The Court orders that:

1. Leave is granted to the plaintiff to discontinue the Summons filed on 29 October 2024 in proceeding 2024/00400930 on the term that he pays the defendant’s costs, as assessed (or as agreed).

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Endnotes

Decision last updated: 26 November 2024