M1 v R1

[2024] NSWCA 256

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

M1 v R1 [2024] NSWCA 256

Hearing dates:

27 August 2024

Date of orders:

30 October 2024

Decision date:

30 October 2024

Before:

Leeming JA at [1];
Mitchelmore JA at [5];
Price AJA at [122]

Decision:

(1)   The extension of time to file the summons, which was amended pursuant to leave granted on 4 August 2024, is refused with costs.

Catchwords:

CIVIL PROCEDURE — time limits — extension of time — judicial review — multiple grounds of review — no reviewable error established — no explanation for delay — lack of merit — lack of public interest

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 98, 99

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 8

Crimes Act 1900 (NSW), s 319

Defamation Act 2005 (NSW), ss 10A, 12A, 12B

Evidence Act 1995 (NSW), s 136

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 6.36

Uniform Civil Procedure Rules 2005 (NSW), rr 6.1, 6.3(b), 6.6, 13.4, 42.1, 59.10

Cases Cited:

Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39

Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) (2023) 113 NSWLR 381; [2023] NSWCA 311

Bridges v Pelly [2001] NSWCA 31

Daley v Donaldson [2022] NSWCA 96

Duraisamy v Sydney Trains [2019] NSWCA 269

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164

Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Odtojan v Condon [2023] NSWCA 129

Pirovic v Barbieri [2021] NSWSC 1460

Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327

Short v Crawley (No 45) [2013] NSWSC 1541

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Category:

Principal judgment

Parties:

M1 (Applicant)
R1 (First Respondent)
Jan Worland (Second Respondent)
District Court of NSW (Third Respondent)

Representation:

Counsel:
Applicant (Self-represented)
K Holcombe (Second Respondent)

Solicitors:
Moray & Agnew (Second Respondent)
Crown Solicitor for NSW (Third Respondent)

File Number(s):

2024/187586

Publication restriction:

Pursuant to the order made by the District Court on 1 September 2022 in proceedings 2022/189617, as varied by the District Court on 7 November 2023 in proceedings 2022/189617 and the Court of Appeal on 27 August 2024 in proceedings 2024/187586, the names of the applicant and first respondent are suppressed, save that the parties are permitted to use and to disclose the name or names of each of the parties to this proceeding in connection with any costs assessment applications, the registration of any costs determinations as judgments, the enforcement of any costs determinations and the recovery of any costs from any party.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Citation:

[2022] NSWDC 409 and N/A

Date of Decision:

13 September 2022

Before:

Gibson DCJ

File Number(s):

2022/189617

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 29 June 2022, the applicant commenced proceedings for defamation in the District Court against the first respondent, his former wife, and the second respondent, a solicitor who represented the first respondent in proceedings in the Federal Circuit and Family Court of Australia (the Family Law proceedings). The claim concerned four publications made between himself, the respondents and a child psychologist, which were alleged to have been made in the context of the Family Law proceedings.

On 13 September 2022, the primary judge made orders dismissing the summons and ordering the applicant to pay the first and second respondents’ costs (the primary judgment). Her Honour found that the concerns notice the applicant sent to each of the respondents was invalid and the use of two of the publications complained of was in breach of the implied Harman undertaking and r 6.36 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

On 7 November 2023, her Honour delivered a further judgment, making a gross sum costs order in favour of both respondents and giving reasons for having declined the applicant’s recusal application in the course of the hearing (the costs judgment).

On 19 April 2024, the applicant applied for judicial review of both the primary judgment and the costs judgment. By an amended summons, the applicant advanced six grounds of review in respect of the primary judgment, taking issue with the jurisdictional basis of the primary judgment, and alleging the applicant was denied procedural fairness and that the decision was affected by jurisdictional error.

In respect of the costs judgment, the applicant also advanced six grounds of review, similarly challenging the jurisdictional basis of the decision and contending that he was denied natural justice, alleging both procedural unfairness and apprehended bias on the part of the primary judge. The applicant also alleged that the quantum of the gross sum costs order was unreasonable, the primary judge’s reasons were inadequate, and that her Honour failed to respond to all of his allegations and considered irrelevant material.

The application for judicial review was filed out of time. The second respondent, as the only active party to the proceedings, opposed the grant of an extension of time.

The Court (Mitchelmore JA; Leeming JA and Price AJA agreeing), refusing an extension of time, held:

Per Mitchelmore JA (Leeming JA and Price AJA agreeing):

1. In relation to the grounds of review concerning the primary judgment, the applicant did not establish any reviewable error. The application for an extension of time was refused, having regard to the passage of time since the primary decision was made, the absence of any satisfactory explanation for the delay, and the lack of merit or public interest in his grounds of review: at [71].

2. In relation to the grounds of review concerning the costs judgment, the applicant did not establish any arguable reviewable error. The application for review was attended by a lesser period of delay, but the delay was in the order of two months after the expiration of the period in which proceedings for judicial review must be commenced and it was not accompanied by any satisfactory explanation. Particularly in view of the lack of merit in the grounds, the application for an extension of time was dismissed: at [118].

Per Mitchelmore JA, Price AJA agreeing, Leeming JA agreeing with supplementary reasons:

1. Rule 36.16 of the Universal Civil Procedure Rules 2005 (NSW) does not provide a temporal constraint upon a court’s power to make orders as to costs, including orders that a party pay a specified gross sum instead of assessed costs: at [4], [85] and [122].

   Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 applied. Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 not followed.

JUDGMENT

1. LEEMING JA: I agree with the orders proposed by Mitchelmore JA, and with her Honour’s reasons for judgment which address each of the numerous grounds sought to be advanced. I wish to add the following concerning the question of law whether there was power to make a gross sum costs order more than a year after the applicant’s summons had been dismissed with costs.

2. One precondition to the power to make a costs order in a specified gross sum is that the costs have not been “referred for assessment”: Civil Procedure Act 2005 (NSW), s 98(4). Although the first respondent went so far as to prepare an application for assessment of costs, the application was not lodged (in light of the concerns concerning the non-publication order). The applicant did not submit that that precondition was not satisfied.

3. The primary judge recounted a dispute in the authorities concerning the effect r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), and in particular, whether the 14 day period in r 36.16(3A) is engaged by an application for a gross sum costs order. In Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 at [61]-[62] I expressed the view that because an order seeking payment of a specified gross sum supplanted the ordinary process of assessment, it amounted to varying a judgment within the meaning of r 36.16(1), to which the 14 day limit applied. That was said without my having been taken to, or being aware of, the earlier judgment in Short v Crawley (No 45) [2013] NSWSC 1541 at [27]. As the primary judge observed, subsequent decisions have tended to favour the view expressed in Short v Crawley.

4. The simple point, which is dispositive of this ground, is that made by White JA in Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 at [8]. Section 98(3) states that “an order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings”. Section 98(3), unlike ss (1) and (2), is not expressed to be subject to the rules of court. There is no reason for the words “at any stage of the proceedings or after the conclusion of the proceedings”, in a provision conferring power upon a court, to be read narrowly. That conclusion is confirmed by the opening words of s 98(4) – being the subsection which expressly confers power to order that instead of a party being entitled to assessed costs, the party is entitled to a specified gross sum – namely, “at any time before costs are referred for assessment”. There is no reason to confine those words to the period of 14 days after the order for costs has been made, and good reason not to do so, because it is intrinsically improbable that costs would ever be referred to assessment within 14 days. Accordingly, those words in the statute must be taken to authorise applications outside the 14 day period stated in the rules and, contrary to what I said in Riva NSW Pty Ltd, r 36.16 does not provide a temporal constraint upon a court’s power to make orders as to costs, including orders that a party pay a specified gross sum instead of assessed costs.

5. MITCHELMORE JA: On 29 June 2022, the applicant commenced proceedings for defamation in the District Court against the first respondent, his former wife, and the second respondent, a solicitor who represented the first respondent in proceedings in the Federal Circuit and Family Court of Australia (the Family Law proceedings). The applicant’s defamation claim concerned four publications which he alleged were made in the context of the Family Law proceedings.

6. On 31 August 2022, the first and second respondents applied for summary dismissal of the defamation proceedings. On 13 September 2022, the primary judge, Gibson DCJ, made orders dismissing the summons and ordering the applicant to pay the first and second respondents’ costs: M1 v R1 [2022] NSWDC 409 (the primary judgment). On 7 November 2023, her Honour delivered a further judgment, making a gross sum costs order in favour of both respondents and giving reasons for having declined to recuse herself in response to an application the applicant made in the course of a hearing on 1 November 2023 (the costs judgment).

7. By summons filed in this Court on 19 April 2024, the applicant applied for judicial review of both the primary judgment and the costs judgment, pursuant to s 69 of the Supreme Court Act 1970 (NSW). An amended summons was filed on 8 August 2024. In respect of the primary judgment, the applicant advanced six grounds of review: five in his amended summons (one of which was ultimately not pressed); and an additional ground in his written submissions. The grounds took issue with the jurisdictional basis of the primary judgment, alleged that the applicant was denied procedural fairness in various respects, and alleged that the decision was affected by jurisdictional error in relation to certain findings.

8. In respect of the costs judgment, the applicant advanced six grounds of review, also challenging the jurisdictional basis of the decision and contending that he was denied natural justice, alleging both procedural unfairness and apprehended bias on the part of the primary judge. The applicant also alleged that the quantum of the gross sum costs order was unreasonable, that the primary judge’s reasons were inadequate, and that her Honour failed to respond to all of his allegations and considered irrelevant material.

9. Although the first respondent filed a notice of appearance in these proceedings, she did not participate in directions or file any substantive material, and she did not attend the hearing, there being no appearance when the matter was called outside the court. The third respondent, the District Court of NSW, filed a submitting appearance. The second respondent took an active role in the proceedings, opposing the extension of time that the applicant required to file the application for judicial review (some 19 months after the primary judgment and five months after the costs judgment: see Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10) and otherwise opposing the relief sought.

10. Having regard to the overlap between the applicant’s defamation proceedings and the Family Law proceedings, and the provisions of Part XIVB of the Family Law Act 1975 (Cth), on 1 September 2022 the primary judge made a suppression order over the parties’ names pursuant to s 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW). That order extended to the second respondent but there was no basis for her inclusion. After hearing from the parties at the hearing on 27 August 2024, this Court varied the primary judge’s order to delete the reference to the second respondent. Consistently with the order as varied, I will not refer to the applicant or first respondent by name.

Application for an extension of time

11. The principles that apply to this Court’s consideration of an application for an extension of time are well settled: see for example Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55]. Specifically in relation to applications for judicial review under Part 59 of the UCPR, r 59.10(3) provides that in considering whether to extend time “the court should take account of such factors as are relevant in the circumstances of the particular case, including the following”:

(a)    any particular interest of the plaintiff in challenging the decision,

(b)    possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to the parties to the proceedings,

(c)   the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d)   any relevant public interest.

12. The applicant submitted that there was a public interest in his applications for judicial review because his case “epitomises many things that are plain wrong with the judicial system”. In support of that submission, the applicant advanced several serious allegations concerning the manner in which the primary judge conducted the proceedings, including that she routinely denied him procedural fairness, held him to a higher standard as a self-represented litigant than she held the legal representatives, and had prejudged matters.

13. I will address the merits of those particular arguments below. However, it is important that I state at the outset, by reference to what Leeming JA stated in Daley v Donaldson [2022] NSWCA 96 at [52], that “it is no small thing to allege that a judge has acted in a way which is procedurally unfair” and such a submission “should not be made lightly”. A submission of apprehended bias is also a serious submission, and if made, should be properly supported: Bridges v Pelly [2001] NSWCA 31 at [66] (Giles JA, Sheller JA and Brownie AJA agreeing). I have carefully reviewed the evidence in this Court, which included the transcript of various hearings before the primary judge, and there is no basis for those allegations or any general public interest attending their resolution.

14. As I noted above, the applicant filed the summons seeking judicial review of the primary judgment some 19 months after it was handed down. An email that he sent to the primary judge’s associate in response to the associate’s provision of the orders and judgment, half an hour after the associate’s email was sent, indicated that he was aware of the decision when it was handed down.

15. The applicant did not put on any evidence to explain the delay. In his written submissions he referred to the “immense psychological pressure” placed on him during the Family Law proceedings, in which the first respondent made wide-ranging allegations against him which he said were ultimately disproved in the decision of the Federal Circuit and Family Court (Div 1). That decision, handed down in October 2023, was originally tendered in these proceedings with the applicant’s agreement, but by email to the Court after the hearing he sought withdrawal of the tender and I have thus had no regard to it.

16. In his oral submissions, the applicant also stated that when the primary judge handed down the primary judgment there was a “very intense schedule” in the Family Law proceedings. Relatedly, the applicant submitted that he did not seek leave to appeal because of the 28-day time limit associated with an appeal, and the cost of the filing fee was $4,000. Additionally, he had no sense at that time of the respondents’ costs.

17. Based on what the applicant submitted in relation to the absence of any appeal from the primary judgment, it appears that what motivated him to seek judicial review of that judgment was the amount of costs that the primary judge awarded in the costs judgment in November 2023. However, he has not provided any explanation as to why, following that judgment, a further five months passed before he applied for judicial review of the primary judgment and the costs judgment.

18. In opposing the extension of time, the second respondent emphasised that the applicant had not established any arguable case of jurisdictional error. It is thus appropriate to turn to the merits of the applicant’s arguments. I will address the primary judgment and the related grounds of review before moving to the costs judgment.

Background to the primary judgment

19. In light of the applicant’s contention that he was denied procedural fairness, I will address the background to the primary judgment in some detail. As I noted above, the applicant commenced the District Court proceedings by filing a summons on 29 June 2022. The applicant sought damages and an injunction in respect of four allegedly defamatory publications:

1. an email that the first respondent sent to a child psychologist, Alina Kirievsky dated 7 October 2021, in which she referred to advice given to her by the second respondent;

2. an email that the first respondent sent to Ms Kirievsky, dated 3 December 2021, inquiring about a matter that arose in the Family Law proceedings;

3. an email that the second respondent sent on behalf of the first respondent to the applicant and Ms Kirievsky, dated 13 May 2022; and

4. an email that the second respondent sent to the applicant, copied to the NSW Education Standards Authority, dated 24 May 2022.

20. According to the primary judgment at [3], the plaintiff originally served a concerns notice on 4 April 2022 for two of the four above matters but withdrew it on or about 26 May 2022 and replaced it with a concerns notice for the four matters. As her Honour observed, the applicant then filed the concerns notice as a summons “by the simple expedient of attaching a front page calling this document a ‘Summons’”: at [3]. Her Honour accepted that by the filing of the summons, defamation proceedings could be taken to have been commenced: at [3].

20. Notwithstanding the manner in which the applicant commenced proceedings, proceedings for defamation must be commenced by filing and serving a statement of claim: UCPR, rr 6.1, 6.3(b) and 6.6. On 21 July 2022, which was the first return date of the matter, Levy SC DCJ made the following orders by consent:

“1.   The proceedings continue on the pleadings;

2.   Plaintiff is to file and serve a statement of claim by 18 August 2022;

3.   Stood over for further directions in the Defamation List on 1 September 2022.”

22. The applicant did not file a statement of claim by the appointed date. In advance of the directions hearing listed for 1 September 2022, on 30 August 2022 the applicant emailed proposed orders to the associate of the primary judge, supported by brief written submissions. The applicant sought a stay of the defamation proceedings pending resolution of the Family Law proceedings and the filing of a statement of claim. In support of those orders, the applicant referred to several practical difficulties associated with the Family Law proceedings which were taking up his time. He also stated that it was important to consider statutory limitation periods and that in addition to the cause of action in defamation, the defendants had been “notified” of two additional claims: intentional infliction of economic harm and intentional infliction of emotional distress.

23. On 31 August 2022, the first and second respondents separately emailed the associate of the primary judge. The first respondent provided an affidavit and submissions in support of an application that the defamation proceedings be summarily dismissed. The second respondent adopted the first respondent’s submissions and provided a further affidavit in support. The respondents submitted that the applicant had not served valid concerns notices under s 12A of the Defamation Act 2005 (NSW), from which it followed that the applicant had not satisfied s 12B of that Act. Section 12B(1) provides, in summary, that an aggrieved person cannot commence defamation proceedings unless the person has given the proposed defendant a concerns notice in respect of the matter concerned that particularises the imputations to be relied on in the proposed proceedings, and the applicable period for an offer to make amends has elapsed.

24. The respondents further submitted that the first and second matters of which the applicant complained in the defamation proceedings were contained in documents that Ms Kirievsky had produced on a subpoena issued in the Family Law proceedings. The applicant had not applied to the Federal Circuit and Family Court to be released from his obligations under the implied undertaking referred to in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (“Harman”), as well as under r 6.36 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), to only use the documents for the purpose of the proceedings for which they were produced and not to disclose the contents of the documents to any other person without the Court’s permission.

25. In an email to the parties sent in the afternoon of 31 August 2022, the primary judge’s associate referred to the applications her Honour had received and stated that the issues, particularly those raised by the respondents, “must be dealt with quickly”. The associate foreshadowed that if the applicant required time to provide submissions in reply, a short adjournment could be granted, otherwise the applications would proceed the following day.

26. The applicant replied to the associate’s email that same afternoon, stating that he was scheduled to obtain legal advice on 6 September 2022 and requesting that the matter be adjourned to a date after that. Notwithstanding that request, in an email sent on the morning of 1 September 2022 the applicant provided a response to the respondents’ submissions. The applicant submitted that he obtained the documents that he relied on as the first and second matters in the concerns notice from a third party, as “part of a larger file”. He submitted that the third party was prepared to make an affidavit on her return from overseas.

27. On 1 September 2022, the primary judge adjourned the hearing of the applications. In addition to making the suppression order to which I have referred at [10] above, her Honour made an order listing the matter for a special fixture on 9 September 2022 and directed that any further submissions from any party be provided by 9am on 8 September 2022. On 7 September 2022, the first respondent provided updated submissions and an affidavit of Ms Kirievsky. On 8 September 2022, the applicant provided written submissions in which, among other things, he reiterated his intention to make claims of intentional infliction of emotional harm and intentional infliction of emotional distress.

The hearing before the primary judge

28. On 9 September 2022, the primary judge heard the parties’ applications. In her reasons, the primary judge noted that the applicant expressed concern about the imminent expiry of the limitation period in relation to his defamation cause of action and considered it was in his interests that the matters be dealt with as quickly as possible: at [13]. Her Honour also considered that the concern that the respondents raised regarding the applicant’s use of documents obtained under subpoena in the Family Law proceedings was an issue that should be dealt with at the first opportunity: at [14].

29. The respondents relied on written submissions together with affidavit evidence from their respective instructing solicitors. The first respondent also relied on the affidavit of Ms Kirievsky, in which she denied that she had provided the documents on her file to anyone except in response to the subpoena. The applicant confirmed that he had no objection to the content of any of the affidavits.

30. The applicant confirmed that he relied on three sets of written submissions, being the document he emailed to the associate on 30 August 2022 in support of his proposed orders together with the submissions he provided on 1 September 2022 and 8 September 2022. When the primary judge asked the applicant if there were any other submissions or other material that he wanted her to look at apart from the three sets of submissions, the applicant stated that he wished to make oral submissions.

31. The primary judge heard first from the respondents on their applications for summary dismissal, before hearing from the applicant in response to those applications and in relation to his application for a stay. In support of the submission that the applicant had not served a valid concerns notice under s 12A of the Defamation Act, and thus had not complied with s 12B, counsel for the first respondent submitted that in relation to the first three matters the applicant had not identified how they caused serious harm (serious harm being an element of the cause of action: s 10A(1) of the Defamation Act). Counsel also submitted that there was no arguable basis on which harm could be demonstrated having regard to the nature of the communications, which were emails to a child psychologist who was bound by obligations of confidentiality.

32. In relation to the fourth matter, counsel for the first respondent accepted that there might be adequate particulars of serious harm in relation to that publication but submitted that “doesn’t affect the fact that the plaintiff has commenced proceedings in relation to [the four matters] complained of, and has not served a concerns notice which provides sensible particulars of serious harm in relation to three of them”. Counsel also raised, as an additional defect with the concerns notice, that the applicant had not annexed copies of the four matters and that it was not apparent why he could not have done so. Relying on the mandatory language in s 12B of the Defamation Act, counsel for the first respondent submitted that the applicant’s proceedings were invalid and should be dismissed.

33. In relation to the Harman undertaking and the Federal Circuit and Family Court of Australia (Family Law) Rules, counsel for the first respondent noted that as a matter of timing, a subpoena had been issued to Ms Kirievsky in the Family Law proceedings on 15 February 2022, in response to which she had produced documents on 22 February 2022 including the first and second matters in the applicant’s concerns notice. In circumstances where the applicant first included those matters in the concerns notice dated 4 April 2022, the first respondent submitted that there was a compelling inference that the applicant had obtained the documents from what Ms Kirievsky had produced on subpoena. In response to the applicant’s written submissions of 8 September 2022, in which he stated that he obtained the documents from a third party, counsel relied on Ms Kirievsky’s denial that she had produced the documents to anyone except under the subpoena. In circumstances where the applicant had not sought leave from the Federal Circuit and Family Court to use the documents for the purposes of the defamation proceedings, counsel submitted that his reliance on them constituted an abuse of process.

34. Counsel for the second respondent adopted the first respondent’s submissions and advanced two further submissions. The first was as follows:

“BOYD: Thank you, your Honour, just two short things to add. The second defendant’s position is that the breach of the Harman obligation that implied undertaking, would warrant the Court summarily dismissing or permanently staying the entire proceeding. That arrives [scil arises] from the fact that it’s the plaintiff’s position that the proceedings are unviable in the absence of those first two matters complained of and that both of those matters are interlinked with the second two matters, and the plaintiff has made that position clear in his updated written submissions.

HER HONOUR: I saw that.

BOYD: Yes, your Honour. At paragraphs 30, 31, 32 and 40 now, in effect, those concessions make clear that the abuse of process infects the whole proceeding. …”

35. Counsel for the second respondent was there referring to the applicant’s written submissions dated 8 September 2022, in which he submitted that severance of the first two matters of concern “would render the plaintiff’s overall claim for defamation unviable and would provide the defendants with implied permission and tools to further damage plaintiff’s reputation (which defendants appear to intend to pursue based on their behaviour displayed to date)” (at [40]). The applicant had earlier referred to the interlinked nature of the matters of concern, submitting that if the first and second matters of concern were severed “the court would create a defence of truth” for the third and fourth matters of concern (at [30]-[31], [32]).

36. Counsel for the second respondent also submitted that in so far as the applicant foreshadowed an intention to advance the two further causes of action to which he had referred in his submissions of 30 August 2022 (see [22] above) those causes of action had not been pleaded. It followed that those causes of action were not part of the proceedings and were not before her Honour.

37. At the outset of the applicant’s submissions there was an exchange between the applicant and the primary judge on this last issue, with the primary judge pointing out to the applicant that his claims for intentional infliction of economic harm and emotional distress were not before her at that time:

“PLAINTIFF: Well the - your Honour with due respect, my understanding was that both defendants were properly notified of all causes of action before the proceedings when I filed the proceedings online, I - there was no - I could only choose one, one cause of action.

HER HONOUR: No. The thing is this, that procedure you have for filing proceedings online where you’re supposed to identify the cause of action, that doesn’t mean that you’ve pleaded the cause of action. You have to plead the cause of action that’s involved. You can’t just bring a claim for four defamations and then tick all the boxes and say it’s also a claim for false imprisonment, wrongful arrest, malicious prosecution. You see you can’t do that. You’ve got to plead and particularise.

Can I say there’s a very helpful decision of Adamson J called Dickens v State of New South Wales (No 3) [2018] [NSW]SC 485. I might just tell you what her Honour said. Her Honour had to say this about the statement of claim at paragraph 36. She said:

‘The importance of pleadings ought not to be underestimated. A statement of claim serves a number of functions. It indicates, to the Court and to the defendant or defendants, the basis of the plaintiff’s claim for relief. The statement of claim must set out, in numbered paragraphs, the material facts on which the plaintiff relies (UCPR rules 14.6 and 14.7). Where the rules require that certain matters be particularised (for example fraud or states of mind), the statement of claim must contain those particulars. It is an aspect of natural justice that the defendant be apprised of the case it has to meet by a properly pleaded statement of claim.’

Then her Honour goes on to say:

‘Where unparticularised allegations are made, there can be a tendency for deficient pleading to amount to an abuse of process. A pleading must not be ‘embarrassing’ in the senses that it is intermixed with allegations and the like.’

So you see my associate’s actually put that up on the screen for you so you can read it because the point is this, what you’ve put in your concerns notice is a claim in relation to four publications that are asserted to be defamatory. I don’t have any actions before me of the kind described by you. I’m dealing with what’s before me. There’s no need for you to send a concerns notice conformably with section 12A for anything other than a claim for defamation. In other words, the claim that’s before me is one for defamation. What’s your next point?”

38. When the applicant proceeded, shortly after this exchange, to make a submission about the limitation period for the emotional distress claim, the primary judge reminded him “that we’re not here today to talk about the claim - these claims which you have foreshadowed but which you have not pleaded and which have nothing to do with concerns notices”.

39. The applicant made submissions in response to the allegation that he had breached the Harman undertaking and the Federal Circuit and Family Court of Australia (Family Law) Rules, before addressing the respondents’ submissions regarding the requirements of the Defamation Act. In relation to the former, the applicant submitted that he obtained the documents that formed the first and second matters from another person, to whom he had referred in his 8 September written submissions. In the course of the hearing the applicant said that he had been “finally been able to reach” this person.

40. In relation to his application for a stay, although the terms of the order he proposed was that a stay be in place until the Family Law proceedings were resolved, the applicant ultimately submitted that the main purpose for the stay was so that he could ascertain whether he could engage a lawyer to prepare a statement of claim. Ultimately, the primary judge asked the applicant whether he was pressing his application for a stay, telling him that there was nothing wrong with asking for it but she needed to understand if he was asking for it and, if so, why. In response, the applicant stated that he wanted a stay until he was able to file a statement of claim. The following exchange then occurred:

“HER HONOUR: Well when will that be?

PLAINTIFF: Well safely it’s going to be by mid next month.

HER HONOUR: How do you know that?

PLAINTIFF: Well I – well I don’t know how the judiciary works but I think if they delayed the consideration--

HER HONOUR: Would I be right in thinking you’re just guessing that because you see you’ve already been told that the date’s been changed and no new date’s been given and the thing is that if there’s going to be a hearing in the Family Court who knows how long that will – in the future that will be and whether for example a judge might reserve and not hand down judgment until next year.

PLAINTIFF: Your Honour you are correct I’m guessing but what I’m happy to undertake--

HER HONOUR: I see.

PLAINITFF: --is if that – if that is – if I don’t file then you know I’m happy – well the order can read if I don’t file they are automatically dismissed.

HER HONOUR: All right. Basically what you’re doing is you’re no longer seeking the undertaking that’s set out in paragraph 1, is that right? I just want to get this clear, you’re no longer seeking the stay until the proceedings are resolved and you file a statement of claim. You’re agreeing that you have to file a statement of claim, is that right, and you’re saying you’ll do so by sometime next month?

PLAINTIFF: Yes, ideally if I could have until the third week of October. I will either find the money, the application and the cost application will either be resolved, or I will just have to do it myself.”

41. When her Honour raised with the applicant that he had not said that he was going to approach the Federal Circuit and Family Court to be released from the undertaking, they had the following exchange:

“PLAINTIFF: I haven’t used documents under subpoena, that’s what I said. I, I am meeting the person - the third party that provided documents to me. I will, I will provide an affidavit or whatever needs to be by her [sic].

HER HONOUR: Listen, the fact that a third party gave you those documents doesn’t mean that you’re released from your undertaking. It’s an implied undertaking to the Court. The fact that somebody else gives you those documents doesn’t excuse you from complying with your obligation to seek a release. I mean are you saying that somebody else gave you these documents before the subpoena was issued?

PLAINTIFF: That is correct yes. That’s what - that was --

HER HONOUR: What was the date you were given these documents?

PLAINTIFF: It would’ve been - I don’t know the exact date. So the - there’s - I moved in early October just a couple of apartments away and my mail was still going to, to the old apartment and I got notified by the person I mentioned in my written submissions that there was mail for me. So that’s, that’s how I say I got the documents.

HER HONOUR: So somebody told you there was mail and these documents just showed up anonymously in your letterbox, is that right?

PLAINTIFF: No, they were, they were - what do you call them? There was a name of - what’s the name of it? Eastern - something to do with Eastern Child Psychology, something, something along those lines.

HER HONOUR: Yes.

PLAINTIFF: Which I, which I presume - well which I presume to be from Ms Kirievsky.

HER HONOUR: I see and you got these - you can’t give me the date when you got these documents. You think it might’ve been early October last year, is that right?

PLAINTIFF: No it wouldn’t - no it would - it would’ve been, it would’ve been either December or January. Well I would need to go back to - I think she was on holidays. She was on holidays in December. I think it was late January actually, late January.

HER HONOUR: Well the subpoena was issued in February, so - but you say you already had the documents by that time?

PLAINTIFF: Correct.”

42. Finally, the applicant submitted that he wanted an injunction directed to both respondents to stop them from making comments about him unless they were “compelled by law as part of the court process”. He also sought leave to file a statement of claim by “sometime” in the “third week in October”.

The primary judgment

43. Consistently with the position the applicant had adopted in his oral submissions, the primary judge noted that he “effectively abandoned” his application for a stay and instead sought an injunction to prevent the respondents from defaming him: at [7]. Her Honour then summarised the respondents’ application for summary dismissal as resting on the following four bases (at [12]):

1. The summons was defective as to form as the matter must proceed by way of pleadings. Her Honour noted that the applicant agreed that he would file a statement of claim and that he had sought until late October to do so.

2. The four matters complained of post-dated amendments made to the Defamation Act which commenced on 1 July 2021, pursuant to which a statement of claim presupposed the giving of a concerns notice; and the concerns notice that the applicant served was defective because the requirement to particularise serious harm had not been met and copies of the matters complained of were not attached.

3. The applicant was not permitted to bring an action for the first two matters complained of because he had obtained them from material produced under subpoena in the Family Law proceedings, noting the first respondent’s submission that the first two matters should be struck out for this reason.

4. Additionally, the second respondent submitted that all four of the publications were intertwined, such that all four should be struck out.

44. The primary judge concluded that the summons should be struck out in its entirety on two independent bases. First, her Honour found that the concerns notice that the applicant had sent to each of the respondents was invalid. Her Honour concluded that the applicant provided inadequate particulars of serious harm for the purposes of s 12A(1)(a)(iv) of the Defamation Act, for reasons which her Honour summarised in [29] as follows:

“(a)   There are no such particulars. There is no ‘particulars of serious harm’ heading, or set of particulars provided, at all.

(b)   While it is asserted that the imputations are ‘serious’, the word ‘serious’ does not otherwise appear and the word ‘harm’ does not appear at all.

(c)   While the failure to provide ‘particulars of serious harm’ as such might be overcome if the plaintiff had set out particulars of the kind attempted in Newman v Whittington [[2022] NSWSC 249], the vague generalities of the ‘cut and paste’ particulars of reputational injury are little more than mere surmise and the harm identified (namely the risk that ‘society at large’, to quote the plaintiff, might read private emails sent by a mother to her child’s psychologist) is implausible.

(d)   There is no causative link between the publications and the plaintiff’s description (such as it is) of potential for past, present or future damage.”

45. Her Honour noted that the applicant did not address these deficiencies “in any detail beyond attacking the conduct of the defendants and the Independent Children’s Lawyer, which he said had damaged his professional and personal reputation”: at [42]. Her Honour also accepted that the applicant failed to attach the full texts of the matters complained of to the concerns notice as required by s 12A(1)(b) of the Act: at [44]-[45].

46. Second, her Honour upheld the respondents’ submission that the plaintiff had obtained the first two matters complained of from documents produced on subpoena in another court, and that this use of them was in breach of the implied Harman undertaking and r 6.36 of the Federal Circuit and Family Court of Australia (Family Law) Rules. Her Honour referred in this respect to the affidavit evidence of Ms Kirievsky, which was not challenged: at [46].

47. The primary judge referred to the applicant’s position that he had received the documents from a third party before the subpoena was issued and thus did not need permission to use them. Her Honour also referred to his submission that dismissal on such a basis was “a harsh result for a litigant in person who was struggling with the complexities of defamation law”: at [48]. Referring to the approach of Bell P in Duraisamy v Sydney Trains [2019] NSWCA 269 at [25], her Honour took the view that while there were some pleading problems that a court might be willing to overlook for a litigant in person, “the same cannot be said for a claim that defamation proceedings had been commenced for publications produced under subpoena”: at [50].

48. Looked at as a matter of public policy, her Honour considered that no litigant or court should be put in a position where they have to countenance conduct potentially amounting to a contempt of court and/or have to act contrary to their own obligations. Moreover, her Honour was cognisant of the fact that the first and second matters formed part of records concerning a child’s treatment by a health professional, produced to a Commonwealth court at the request of the Independent Children’s Lawyer, and Ms Kirievsky’s evidence was that she did not authorise their release: at [54]. Her Honour considered that, whilst only in rare cases can the doctrine of ex turpi causa non oritur actio be invoked successfully in actions for tort, these were weighty considerations in the present case where the welfare of a child was involved: at [59].

49. The primary judge ultimately accepted the first respondent’s submission that the claims based on the first two publications should be struck out. Her Honour also accepted the second respondent’s submission that the causes of action of all four publications were intertwined and that all four claims should be struck out, noting that “the plaintiff has acknowledged this factor, in both written and oral submissions”: at [61].

50. Finally, the primary judge refused the applicant’s application for an injunction. Her Honour considered that the very broad scope of that request would impede the conduct of the Family Law proceedings: at [64]-[66].

The grounds of review concerning the primary judgment

51. The applicant did not press one of the grounds of review, which related to the absence of formal notices of motion seeking summary dismissal (amended summons [13]). In relation to the remaining grounds I have adopted the numbering that the applicant used in his written submissions dated 30 July 2024, with the relevant paragraph of the amended summons in brackets.

Ground 1: the District Court summons was “null” and thus the primary judge had no jurisdiction (amended summons [12])

52. The applicant submitted that in circumstances where Levy SC DCJ had ordered that the proceedings should continue on the pleadings (see [21] above), the primary judge did not have jurisdiction to dismiss the summons.

53. The applicant had commenced defamation proceedings by summons. As the primary judge stated at [3], the proceedings could be taken to have been commenced notwithstanding that their commencement using the incorrect originating process, consistently with UCPR, r 6.6, which provides:

6.6 Proceedings wrongly commenced by summons (cf SCR Part 5, rule 11)

(1)    Proceedings that have been commenced by summons when they should have been commenced by statement of claim are nevertheless, and for all purposes, taken to have been duly commenced as from the date of the filing of the summons.

(2)    Despite subrule (1), the court may order that the proceedings continue on pleadings.

(3)    On or after making such an order, the court—

(a)   may order that any affidavits stand as pleadings, or

(b)    may make orders for the filing of a statement of claim or other pleadings.

(4)    After a statement of claim is filed pursuant to an order referred to in subrule (3)(b), the proceedings are to continue, subject to any other order of the court, as if commenced by statement of claim.

54. Levy SC DCJ made the order to which r 6.6(2) refers, together with an order for the filing of a statement of claim with which the applicant had not complied at the time the respondents’ applications for summary dismissal were heard. Nonetheless, what remained essential to the applicant’s cause of action was the concerns notice that he had attached to the summons, and which the respondents submitted was defective. Her Honour had jurisdiction under UCPR, r 13.4 to determine whether the respondents were correct and if so, whether the proceedings should be summarily dismissed. Accordingly, this ground of review is of no merit.

Ground 3: alleged denials of procedural fairness (amended summons [14])

55. The applicant alleged that the primary judge denied him procedural fairness in the following respects:

“(a)   Not ordering the respondents to file a notice of motion and evidence in proper form;

(b)   Not considering that the applicant had no notice of the notice of motion from the respondents;

(c)   Not allowing the applicant adequate time to respond to submissions. Submissions were set to be filed simultaneously by the same date on 8 September 2022, 1 day before the hearing, by both the applicant and the respondents.

(d)   Not allowing the applicant to file evidence in response to the respondents’ submissions;

(e)   Disallowing the applicant to file evidence which would have refuted the respondents’ claims in respect of breaches of Harman undertaking to another court;

(f)   Not allowing the applicant an extension of time, as customary, to file a statement of claim.”

56. Paragraphs (a) and (b) were directed to the absence of notices of motion from the respondents, which was the subject of the ground of review that the applicant did not press (see [51] above).

57. As to paragraph (c), I have set out above the chronology of written submissions made in advance of the special fixture on 9 September 2022 above. It is apparent from that chronology that although the primary judge made a direction for further submissions of any party to be filed by 9am on 8 September 2022, only the first respondent provided updated written submissions, and did so by email sent on the afternoon of 7 September 2022. The applicant provided further written submissions the following morning by email. Neither in those written submissions nor in his oral submissions at the hearing did the applicant indicate that he did not have a sufficient opportunity to respond to the points that the respondents raised.

58. I will address the allegations in paragraphs (d) and (e) together as both contend that the applicant was not given an opportunity to file responsive evidence, with particular focus, in paragraph (e), on the applicant’s alleged breach of the implied undertaking. At the hearing, the applicant submitted that his position in the District Court on the implied undertaking (which he maintained in this Court) was that he had not breached it because he had obtained the documents from another source. He referred in this context to the primary judge’s reference, in her Honour’s reasons, to the written submissions he provided on 1 September 2022, in which he had referred to obtaining the documents as part of a larger file from a third party who was prepared to make an affidavit upon her return from overseas: at [8].

59. As I have noted above, towards the beginning of the hearing on 9 September 2022 the primary judge confirmed with the applicant what materials he wanted to put before her, at which time the applicant did not refer to wanting to rely on any affidavit evidence. During his oral submissions, the applicant did refer to the availability of the third party from whom he received the documents, saying, “I will provide an affidavit or whatever needs to be by her [sic]”. However, the applicant did not pursue this, perhaps because in response to direct questions from the primary judge he was able to give his version of what happened, namely, that he obtained the documents from an individual (his connection with whom, he identified in his written submissions dated 8 September 2022, was through a real estate agency that previously leased residential premises to him) when she passed on to him mail that had been delivered to his former address.

60. Notwithstanding that the applicant did not go into evidence on this issue, the primary judge fairly summarised the effect of his position in her reasons at [48], namely, “that a third party gave him the documents in question prior to the subpoena being issued in February 2022 by the Independent Children’s Lawyer in that court, and that for this reason he does not need permission”. Her Honour ultimately accepted the evidence of Ms Kirievsky, that she had not provided the documents to anyone before producing them on subpoena (which the applicant did not challenge). That her Honour did so did not give rise to any procedural unfairness.

61. As to (f), the applicant submitted orally that in circumstances where his non-compliance with the direction made by Levy SC DCJ to file a statement of claim was by a matter of weeks, it was procedurally unfair for her Honour not to grant the extension of time he sought to file that document. He relied in this context on what he described as a manifest imbalance of power in the court and submitted that the denial of procedural fairness in refusing to extend time was quite an issue in that context. The applicant also submitted that he made it clear to all parties, and to the primary judge, that his statement of claim would be multifaceted and would include the additional torts of intentional infliction of emotional distress and economic harm, and yet he was denied the opportunity to file a statement of claim that addressed these matters.

62. Addressing the last submission first, I have extracted above at [37] a substantial portion of the exchange that the primary judge had with the applicant in relation to those claims. Her Honour made it clear that the only cause of action that was the subject of the proceedings at that time, and with which she was dealing, was the claim for defamation. It was that claim that Levy SC DCJ ordered should continue on the pleadings, and in respect of which he had ordered that a statement of claim should be filed (compliance with the latter being the subject of the applicant’s request for an extension). The effect of her Honour’s decision was to dismiss the applicant’s defamation claim, that claim being all that was before her.

63. As to the applicant’s submission that it was procedurally unfair not to grant an extension of time to file a statement of claim, there was no utility in making that order in circumstances where the primary judge had dismissed the claim, including on the basis that it was defective under the Defamation Act. No procedural unfairness attended her Honour not making that order in those circumstances.

64. The applicant also submitted in writing that there was no evidence to support the primary judge’s reasons at [7], in which (according to the applicant) her Honour stated that he had abandoned his request to file a statement of claim. As the second respondent pointed out, the primary judge referred only (and correctly) to the applicant having abandoned his request for a stay.

Ground 4: error of law in considering evidence that was irrelevant to the substance of the claim and failing to consider relevant evidence (amended summons [15])

65. The caution that Kirk JA expressed in Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 (“Ming”) bears repeating in relation to establishing reviewable errors of the nature that the applicant raised pursuant to this ground:

“[14] The variant of constructive failure invoked here was that discussed by members of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 (Dranichnikov). In that case Gummow and Callinan JJ, with whom Hayne J agreed, held that for an administrative decision-maker ‘[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts’ was both a constructive failure to exercise jurisdiction and a failure to accord natural justice: at [23]-[25]. Kirby J similarly found a constructive failure in that case where the decision-maker’s mistake ‘amounts to a basic misunderstanding of the case brought by an applicant’: at [88].

[15] A risk with this type of argument is that claims about failure to address matters can shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review. Further, as discussed below, it is not necessary for judicial decision-makers to address every argument or every piece of evidence in delivering reasons. Hence the need to show that there has been a failure to grapple with a substantial, clearly articulated argument. That language has been reiterated by members of the High Court: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [13] per Bell, Gageler and Keane JJ and [105] per Nettle and Gordon JJ; Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 at [27] per Kiefel CJ, Keane, Gordon and Steward JJ. The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved.”

(Emphasis in original.)

66. In his written submissions, the applicant advanced a number of separate complaints under this heading. First, he submitted that the “substance” of his claim was pursuant to the three causes of action to which I have referred in the previous ground, and the primary judge gave “no consideration whatsoever” to the second and third “at the hearing or in the judgment”. For the reasons I have set out above, that submission is incorrect. Her Honour went to some lengths during the hearing to explain to the applicant that those claims had not been pleaded and were not before her. That her Honour did not consider them in the judgment was consistent with that explanation and with the absence of any pleaded claims.

67. The applicant also took issue with the bases on which the primary judge found that the concerns notices were defective and that he had breached the implied undertaking. The applicant submitted that the matters on which her Honour relied in concluding that the concerns notices were defective were overly technical when the substance of the notices was considered, and (in relation to the failure to annex the publications) insufficient to rise to the level of fatal defects. Those arguments, directed as they are to the merits of her Honour’s conclusions and the exercise of her discretion to order that the proceedings be summarily dismissed, are beyond the scope of judicial review.

68. The applicant also submitted that the primary judge had no jurisdiction to find that he had breached the implied undertaking in relation to proceedings in a different court. That submission misunderstood the respondents’ argument regarding the implied undertaking, central to which was that the defamation proceedings constituted an abuse of process because the matters relied upon derived from material that the applicant could only have obtained because it was produced on subpoena in the Family Law proceedings. Her Honour’s acceptance of that argument did not involve an error of law or a jurisdictional error.

Ground 5: jurisdictional error in not addressing parts of the claim (amended summons [16])

69. By this ground, the applicant reiterated his complaint about the primary judge’s treatment of the other torts, contending that in the absence of any evidence from the respondents disputing those claims her Honour did not have power to “shut down the overall proceedings”. There is no merit in this ground for the reasons I have given above.

Ground 6: jurisdictional error in wrongly exercising another court’s jurisdiction (applicant’s written submissions [46])

70. This ground, which was raised only in the applicant’s written submissions, effectively reagitated the applicant’s contention that the primary judge did not have jurisdiction to find that he breached the implied undertaking when it related to documents in another court. Notwithstanding the second respondent’s objection to dealing with this ground when it was not pleaded, I have addressed it above. It should be dismissed.

Conclusion on the application for review of the primary judgment

71. The applicant has not established any reviewable error in the primary judgment. Having regard to the passage of time since the primary decision was made, the absence of any satisfactory explanation for the delay, and the lack of merit or public interest in his grounds of review, I would decline to grant the applicant an extension of time.

Background to the costs judgment

72. The primary judge summarised the background to the costs judgment in her Honour’s reasons. In late 2022 and early 2023, the respondents provided estimates of their costs to the applicant. The first respondent also provided a bill in assessable form. The second respondent did not, a matter that was, and remained, of significance to the applicant in terms of what ensued in the District Court.

73. The applicant considered that the costs sought by the respondents were excessive and raised issues as to the competency and honesty of all those concerned. In a communication with the Court in response to a notice of motion filed by the first respondent seeking a variation to the suppression order to progress the costs assessment process, the applicant stated that he had complained about the first respondent’s solicitors to the Office of the Legal Services Commissioner (OLSC) in relation to the bill of costs they had prepared. In May 2023, he was notified that this complaint had been referred to the Law Society for investigation. In the same month the applicant also complained to the OLSC about the failure on the part of the solicitors for the second respondent to provide him with a bill of costs despite repeated requests.

74. The notice of motion filed by the first respondent was first returnable before the primary judge on 4 August 2023. On 3 August 2023, by email from her Honour’s associate, the primary judge enquired whether the parties had considered whether a gross sum costs order could be an efficient way of resolving the costs assessment process. In the costs judgment, her Honour outlined her reasoning at [6]:

“[6] On the first return date of 4 August 2023, both parties told the court that there had been delays in the costs assessment process during the past year, for which each blamed the other. Conscious of the undesirability of more delay for the relatively small sum involved, and of ‘satellite litigation’ in the form of drawn-out costs disputes (Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153 at [92(g)] and [195] (‘Lemoto’)), I inquired whether consideration had been given to the seeking of a gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW). The defendants said they would seek such an order, while the plaintiff said he would oppose any variation of either the costs or the suppression order.”

75. On 4 August 2023, her Honour had a detailed exchange with the applicant about the status of the costs issues. Her Honour also explained the purpose behind an application for an order under s 98 of the Civil Procedure Act 2005 (NSW) and the steps involved in determining such an application. The primary judge then made timetabling orders which took into account the applicant’s submission that he was occupied at that time with preparation of evidence and outlines for the Family Law proceedings, which were listed in early September. Her Honour directed that the defendants provide evidence and submissions in respect of a gross sum costs order by 1 September 2023, with the applicant to provide submissions in reply by 9 October 2023, and for the matter to be next listed for directions on 13 October 2023 with liberty to apply.

76. On 1 September 2023, the first and second respondents respectively filed evidence and prepared joint submissions, annexing to the latter an amended notice of motion seeking a gross sum costs order. On 28 September 2023, the matter was re-listed at the applicant’s request. On that occasion, the applicant raised that he wished to put on evidence, including transcripts from the Family Law proceeding. After reiterating that the applicant needed to consider whether leave was required from the Family Court to rely on such material in the District Court, her Honour informed the applicant that he needed to file his “material and submissions” by 16 October 2023 (which was an extension to the original timetable), and listed the matter for hearing on 1 November 2023. Towards the end of the directions hearing the applicant raised apprehended bias and her Honour invited him to address that in his submissions if he considered there was a basis for it.

77. On 31 October 2023, the applicant served written submissions by email to the judge’s associate and the parties. The hearing commenced on 1 November 2023. The respondents, who were jointly represented at the hearing by Ms Holcombe, read two affidavits of the solicitor for the first respondent and an affidavit of the solicitor for the second respondent. The applicant made some specific objections to the first affidavit of the first respondent’s solicitor, which her Honour dealt with, and did not object to the other affidavits.

78. Notwithstanding that the primary judge had made it clear at the directions hearing on 28 September 2023 that the applicant was not restricted to filing written submissions, the applicant complained of unfairness in that there had been no order allowing him to file evidence. The primary judge asked the applicant how long it would take for him to put on the affidavit he wished to rely on, to which he replied: “One day.” Over the respondents’ strong objection, the primary judge adjourned the hearing to 3 November 2023 to permit this to happen.

79. After her Honour proposed the order to adjourn the hearing, the applicant made a recusal application. He relied in support of that application on three documents. The first was an interview between the primary judge and a senior associate at Corrs Chambers Westgarth in March 2022, which appeared in the Communications Law Bulletin. The second was a speech her Honour had given on 31 October 2018, titled “Recent Trends in Defamation Cases”. The third was an article that the primary judge wrote in May 2013, titled “Should Judges Use Social Media?” The applicant made submissions in support of the application, noting that the second respondent was a legal professional and asserting that there was “no impartiality when the case involves legal professionals and self-represented litigants”. The applicant submitted that the articles also indicated that the primary judge was sympathetic to the “Me Too” movement and was potentially predisposed to judge against persons who were the subject of such allegations.

80. The applicant also submitted that the primary judge had helped the respondents in terms of raising the possibility of a gross sum costs order when they had not sought an order of that nature. The applicant submitted that this showed that the primary judge was “prepared to nurture the legal profession and put the legal profession ahead of litigants in person”.

81. Her Honour raised with the applicant the test for apprehended bias and asked for his submissions as to how the test was satisfied. The applicant replied by reference to what he submitted was her Honour’s strong support for a serious harm test and her “sympathy to the Me Too movement and general female empowerment”. Her Honour then dismissed the applicant’s recusal application and stated that she would provide reasons in her judgment in the matter more generally.

82. On 2 November 2023, the applicant provided an unsworn affidavit to the District Court which contained information about the Family Law proceedings and the circumstances in which he made an application to be released from the implied undertakings earlier in the year. At the outset of the hearing on 3 November 2023, after counsel for the respondents foreshadowed that she had problems with that affidavit, her Honour said that she was going to permit it to be filed. Her Honour said that while she understood where counsel was coming from in terms of evidentiary issues, the applicant was “a litigant in person with strong feelings of grievance in the circumstances”. Although her Honour initially indicated that the evidence in the affidavit would be limited to the applicant’s understanding, pursuant to s 136 of the Evidence Act 1995 (NSW), the applicant, who was not aware of s 136, raised a concern about this approach. The primary judge then read the affidavit without limitation.

83. Her Honour invited the applicant to make further submissions in relation to the application for a gross sum costs order. His submissions included that the application was an abuse of process whereby the respondents were trying to circumnavigate the costs assessment process in which there would be what he described as “a proper assessment of their conduct”. He took issue with the amount of costs that both respondents claimed, submitting that the costs that would be allowed on an assessment would be much lower. He submitted that the costs incurred in relation to the arguments regarding the implied undertaking were unnecessary given her Honour had determined the matter on the basis of his failure to comply with the provisions of the Defamation Act. He also submitted that her Honour had no jurisdiction to vary the costs order she had made as part of the primary judgment. Additionally, the applicant made an application for orders under s 99(2) of the Civil Procedure Act, in relation to the conduct of counsel and solicitors for the respondents.

The costs judgment

84. On 7 November 2023, her Honour made the following orders:

“(1) Pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay each of the defendants’ costs as a gross sum (inclusive of any further claim for interest) by the dates set out in order 2:

(a)    The sum of $30,000 to the solicitors for the first defendant;

(b)    The sum of $30,000 to the solicitors for the second defendant;

(2)    The costs in question to be paid in three tranches as follows:

…

(3)    Interest on the sums set out in order 2 will not start to run until 28 days after each payment is due.

(4) The plaintiff’s oral application for orders pursuant to s 99 of the Civil Procedure Act 2005 (NSW) as against the second defendant and/or the solicitors and/or counsel for either of the defendants is refused. … “

85. The primary judge noted that the issue of whether an application to seek a gross sum costs order enlivened r 36.16 of the UCPR had been the subject of inconsistent appellant rulings. In Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 (“Riva”), Leeming JA held that the rule was engaged, while White J held to the contrary in Short v Crawley (No 45) [2013] NSWSC 1541 (“Short”) at [27]: costs judgment at [29]. Her Honour pointed to subsequent Court of Appeal decisions following the Short approach, including Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 (“Ahern”) and Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 (“Livers”), and was satisfied that Short was the preferred approach. It followed that the Court had jurisdiction to determine this issue: at [31]-[36].

86. The primary judge then set out the factors in Pirovic v Barbieri [2021] NSWSC 1460 (“Pirovic”) (at [22]) that are relevant to consideration of whether a gross sum costs order was appropriate, referring to the various matters on which the respondents relied and the applicant’s response: costs judgment at [57]-[60]. Her Honour concluded that “the factors set out in Pirovic v Barbieri are all clearly made out in this case”, stating at [62]:

“All that the plaintiff’s submissions do is to demonstrate the impossibility of any costs assessment process going forward without the same pattern of multiple complaints, further delays of the kind which have occurred over the past year and the likelihood of further ‘satellite litigation’ (Lemoto v Able Technical Pty Ltd at [92(g)] and [195]). While the costs assessment system is robust enough to cope with these issues, there has been nothing but delay over the past year and it is in the interest of the parties to bring this matter to a close.”

87. In relation to the amount of costs to be awarded, her Honour described the applicant’s allegations about the respondents’ solicitors having overserviced and double charged as the product of his “pattern of bringing complaints against the solicitors”. Her Honour also considered that, “regrettably”, the applicant’s submissions on the amount of costs “focussed on his complaints rather than addressing the issue of quantum”: costs judgment at [65]. Although the applicant was entitled to submit that the costs should be no more than what had been assessed in respect of other applications in the Family Law proceedings, the nature of his submissions meant that the respondents’ estimates went largely unchallenged: at [66]. The primary judge also rejected his submission that the present case was a test case: at [68].

88. The first respondent’s costs and disbursements up to 31 August 2023 were $41,072.83 (including GST): costs judgment at [69]. The second respondent’s costs and disbursements up to 31 August 2023 were given as $49,054.92 (including GST): at [70]. Her Honour considered that taking into account the 25% discount would result in a costs order for the first respondent of $37,737.83 and for the second respondent of $36,791.19: at [72]. There were a number of aspects of these amounts which troubled her Honour, which she set out at [73] of the costs judgment:

“(a)   This is still a very high sum, even though a 25% deduction has been made to allow for the replacement of the assessment process and the costs are assessed on an ordered basis.

(b)   These are figures of some significance for a short hearing in the Defamation List where I agree with the plaintiff that much of the skilled work came from counsel.

(c)   While I accept that the defendants had to be separately represented, it was inevitable that there was an inherent overlapping in terms of attendance and preparation.

(d)   Issues of proportionality are also important: Skalkos v T & S Recoveries Pty Ltd (2004) 65 NSWLR 151; [2004] NSWCA 281. I address this in more detail below.”

89. In determining what sum was appropriate, her Honour considered that the relevant factors were:

1. the complexity of the legal issues. This was the first determination of multiple issues arising under the July 2021 amendment to the Defamation Act. Those issues were complex, a complexity exacerbated by the muddled pleadings: at [75];

2. the added difficulty of concurrent proceedings between the plaintiff and first respondent in another court: at [76]; and

3. the conduct of the applicant, which her Honour described as involving “an almost continuous process of complaint”, including repeated unsuccessful applications in the Family Law proceedings occurring contemporaneously with the District Court proceedings: at [77].

90. In relation to the applicant, her Honour also noted that part of the difficulty in interacting with him was “his disparagement of everyone else concerned in these proceedings”. As he had not offered an alternative amount, her Honour was required to arrive at a sum without the benefit of any more reasonable approach: costs judgment at [79].

91. Her Honour emphasised the principle of proportionality: costs judgment at [80]. Having regard to that principle, her Honour considered that the amounts claimed were above what was appropriate and reduced both to $30,000: at [85]. Her Honour also considered that 28 days was an inappropriately short time for the applicant to raise the sum and providing a timetable for payment on 3 February 2024, 3 March 2024 and 3 April 2024: at [86]-[88].

92. In relation to the applicant’s s 99 application, the primary judge stated that the peremptory manner in which the Court was asked to deal with this application was contrary to procedural fairness. Nonetheless, her Honour dismissed the application on its merits. Her Honour found that the respondents were entitled to seek a variation of the suppression order and to seek the court’s assistance about costs-related issues and to make an application for a gross sum costs order: costs judgment at [92]-[93]. Her Honour commented that the applicant’s repeated references to dishonesty about the implied undertaking were legally and factually incorrect, particularly when it was only one basis upon which the summons was dismissed: at [94].

93. In relation to the primary judge’s refusal to recuse herself for apprehended bias, her Honour noted the applicant’s submission that during the directions hearing on 28 September 2023 she had frequently interrupted him and “on a few occasions, refused to give me an opportunity to respond to her own questions to me”, without identifying what these were: costs judgment at [107]. However, her Honour described the “main basis” upon which the applicant brought the recusal application as her media profile, setting out his written submissions at [109] and identifying the papers and speeches on which he relied at [110]. His written submission was as follows:

“Gibson J’s conduct ought to be analysed through her public profile and the interviews she gave to various media outlets, which is unusual for a District Court Judge, and her speeches. An analysis of those shows:

a. Predisposition to Judge Gibson to think that litigants were unlikely to succeed in defamation proceedings against ‘me-too’ statements and as such it was not worthwhile to commence such proceedings in the first instance.

b. Judge Gibson’s open affinity with the club of independent women and promotion of women’s interests first despite her duty to have a balanced view of both genders.

c. Judge Gibson’s distaste for self-represented parties, which is viewed by me as clear bias in favour of lawyers.

Having regard to the context and content of the proceedings it is my lay person’s observation that Judge Gibson could not have and could not be impartial at any stage of these proceedings, and ought to have recused herself from hearing the matter altogether.”

94. In so far as the applicant raised concerns about her Honour’s conduct in court, the primary judge concluded that a fair-minded lay observer would have no basis for apprehending bias. As to the complaint about the suggestion of a gross sum costs order coming from her Honour, her Honour considered that a fair-minded lay observer would expect litigants to comply with s 56 of the Civil Procedure Act: costs judgment at [116]. Her Honour also considered that her membership of the Costs Assessment Rules Committee and presenting the papers on which the applicant relied was not a basis for a reasonable apprehension of bias: at [117].

The grounds of review concerning the costs judgment

Ground 1: apprehended bias (amended summons [17])

95. The applicant submitted in writing that the primary judge “coached and gave legal (as opposed to procedural) advice to the respondents”, relying in this respect on her Honour having raised s 98 of the Civil Procedure Act. He also submitted that her Honour refused his recusal application in advance of considering evidence that was not yet filed and then, by dealing with it in the later reasons, sought to make it seem as though she had considered the evidence. The applicant also relied on the short period of time her Honour gave him to file evidence in response to the respondents’ evidence.

96. In his oral submissions, the applicant submitted that a reasonable apprehension of bias arose from the primary judge’s reluctance to do anything about his allegations of misconduct against the respondents’ solicitors. His submissions largely relied on those allegations of misconduct, as opposed to the conduct of the primary judge. He referred in this respect to the combined costs that were claimed, which he described as “astronomical”, emphasising the hours billed by the second respondent on the summary dismissal application by reference to an itemisation exhibited to the solicitor’s affidavit. The applicant submitted that it was his right to challenge the claimed costs in the assessment process and yet the second respondent’s solicitor had refused to provide a bill of costs (in his submission because of an awareness of the unreasonableness of what was being claimed).

95. The applicant submitted that a primary judge with her Honour’s experience would have seen through the respondents’ conduct. The primary judge’s preparedness to accept their evidence and submissions on costs thus demonstrated a reasonable apprehension of bias. He relied on [5]-[6] of her Honour’s reasons, where her Honour referred to the background to the application, submitting, for example, that her reference to both parties telling the court that there had been delays in the assessment process was unduly favourable to the respondents. The applicant also relied on what he contended was the inadequacy of the reasons of the primary judge in relation to the application for a gross sum costs order, and to her statement at [71] that the second respondent (a solicitor) had been careful not to claim legal costs arising out of the dealings with LawCover.

96. In relation to his application for orders pursuant to s 99 of the Civil Procedure Act, the applicant submitted that the primary judge was wrong to say that he had brought this application late in the day, in circumstances where he had raised an intention to bring such an application at the hearing on 1 November 2023 and had emailed a notice of motion to her Honour after court hours that same day in which he sought orders under s 99. This was a further indication, in his submission, that her Honour was not prepared to engage with his contentions.

97. The principles regarding consideration of such an allegation are well-settled. The question for resolution by this Court is whether a fair-minded lay observer might reasonably apprehend that the primary judge did not bring an impartial and unprejudiced mind to the resolution of the issues arising on the application before her Honour: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294; [1983] HCA 17; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (“Ebner”) at [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (“Michael Wilson”) at [31]. As the majority stated in Ebner at [8], the first step is to identify what it is said might lead a judge to decide a case other than on its legal and factual merits, while the second step is to articulate the “logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.

98. The applicant relied on aspects of the primary judge’s conduct of the hearing and also aspects of her Honour’s reasoning in the judgment, including the manner in which she dealt with his recusal application. Starting with the recusal application, I have set out the basis of the application that the applicant made on 1 November 2023 at [79]-[81] above, the evidence on which he relied, and the primary judge’s invitation for submissions about how that evidence satisfied the test for apprehended bias. Having heard his submissions on the matter, her Honour determined that the application should be refused. There was no error in her Honour so deciding, there being no logical connection between the evidence on which the applicant relied and the basis of the apprehension of bias about which the applicant complained.

99. No reasonable apprehension of bias arose from the course that her Honour took, of immediately informing the applicant of her decision on his application and providing reasons later. In so far as he relied on other parts of her reasons, such reliance was misplaced. As the majority observed in Michael Wilson at [67], “[t]o ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension)”. I have addressed the adequacy of the primary judge’s reasons in the context of the separate ground of review below.

100. There was no basis for the applicant’s submission, which he reiterated in reply, that in raising the possibility of the respondents seeking a gross sum costs order the primary judge was biased towards legal professionals over self-represented parties. As her Honour explained to the applicant during the directions hearing on 4 August 2023, and as her Honour set out in [6] of the costs judgment, her Honour was concerned about the delay in the costs assessment process, noting that each party blamed the other. Ultimately, although her Honour made an order under s 98, her Honour was not prepared to make it in the amounts sought, placing particular emphasis on proportionality (at [80]-[85]). That her Honour was not prepared to accede to the applicant’s application under s 99 of the Civil Procedure Act also did not ground an application for apprehended bias.

101. In so far as the applicant contended that he was denied an opportunity to file evidence on the costs application, her Honour gave the applicant the time that the applicant asked for on 1 November 2023, being one day (see [78] above). Further, as counsel for the respondent pointed out, at the directions hearing on 28 September 2023 the primary judge had invited the applicant to put on material that supported his claims and gave him time to do so (see [76] above).

102. The applicant also submitted that her Honour may have exhibited favouritism towards counsel for the respondents due to the familial relationship between counsel and the President of the Court of Appeal. There was no basis for that submission and it should be rejected.

Ground 2: denial of procedural fairness (amended summons [18])

105. The applicant submitted in writing that the primary judge denied him procedural fairness by making directions on 4 August 2023 that allowed the respondents to file submissions and evidence but only permitted him to file submissions. He relied on paragraphs [12] and [26] of the costs judgment, in which her Honour referred to him having asked to file evidence in response to the respondents’ evidence, contending that this was inconsistent with pronouncements of the Judicial Commission of NSW on the subject of self-represented litigants, including in the Equality before the Law Bench Book.

106. I have addressed the procedural lead up to the hearing on 1 November 2023 above, as well as what occurred on that occasion. It is apparent from that outline that her Honour did not deny the applicant procedural fairness, indicating on 28 September 2023 that he could file whatever material he wished as long as he did that by 16 October 2023 and then adjourning the hearing on 1 November 2023 when he indicated that he wished to file responsive evidence, permitting him the time he requested.

107. In reply, the applicant raised as a separate point that the primary judge had accepted an unfiled amended notice of motion from the respondents but did not accept his unfiled notice of motion. This related to the notice of motion that the applicant sent by email after hours on 1 November 2023 (see above [98]). In circumstances where the primary judge addressed that application in her reasons at [91]-[95], dismissing it on the merits notwithstanding that her Honour considered it had been brought in a peremptory manner, without notice to the persons whose interests would be affected by it, there is no merit in this additional complaint.

Ground 3: no jurisdiction to vary cost order (amended summons [19])

108. The applicant next submitted that the primary judge did not have jurisdiction to make an order under s 98(4) of the Civil Procedure Act having regard to there already being a costs order in place following the primary decision and the operation of UCPR, r 36.16. He submitted that the primary judge should have followed the decision of Leeming JA in Riva at [63]-[64]. The applicant also submitted that her Honour’s inclusion of Ahern, in [20] of the costs judgment, introduced “inherited bias” into the decision as Ahern was irrelevant to his case, as was Livers.

109. As the second respondent correctly submitted, there is no merit in the applicant’s complaint having regard to the decision of Beau Timothy John Hartnett trading as Hartnett Lawyers v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell (No 2) (2023) 113 NSWLR 381; [2023] NSWCA 311. In that case, Bell CJ and Adamson JA held that an application for costs to be specified in a gross sum was not a variation of an order which would attract the operation of UCPR, r 36.16 (at [38]). This ground of review should be dismissed.

Ground 4: inadequate reasons (amended summons [20])

110. The applicant submitted that the primary judge failed to provide an adequate reasoning process from the principles applicable to s 98 of the Civil Procedure Act to her decision in the present case. In oral submissions, the applicant emphasised [62] of her Honour’s reasons and submitted that there was no explanation for her conclusion that the factors in Pirovic were all made out and that the evidence was inadequate to support it. If the primary judge had “followed the process”, her Honour would have reached the contrary conclusion.

111. In Ming, Kirk JA observed that “whether a failure by a non-superior court to give adequate reasons will always depend upon the particular statutory scheme at issue”. That said, his Honour also considered that “at least in general it is unlikely that a claim of inadequate reasons by such a court will constitute jurisdictional error in circumstances where constructive failure to exercise jurisdiction, or some other type of jurisdictional error, cannot be made out”: at [40]. His Honour referred with approval (at [41]) to McColl JA’s summary in in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, in which her Honour stated (Ipp JA and Bryson AJA agreeing):

“[58] The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.

[59] The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted. As Santow JA … explained … it is necessary that the primary judge ‘enter into’ the issues canvassed and explain why one case is preferred over another ….”

112. The applicant’s complaint that on a proper application of the factors in Pirovic her Honour would have reached a different conclusion is a complaint about the merits of her Honour’s reasons, not their adequacy. Read fairly and as a whole, it can be seen that after setting out the relevant principles and the submissions of the respondents and the applicant, her Honour formed the view that the circumstances were consistent with the factors that are relevant to making an order. Central to her Honour’s conclusion was the manner in which the applicant had engaged with the respondents in the costs assessment process. That the applicant disagreed with her Honour’s conclusion did not make those reasons inadequate.

Ground 5: quantum unreasonable (amended summons [21])

113. The applicant focused on the fees incurred by the solicitors for the first and second respondents for the proceedings relating to the 13 September 2022 judgment, his firm view being that they were excessive. He submitted that had the solicitors applied for the costs assessment, the costs payable would have been greatly reduced, their revenue would be reduced, and a cause of action by the respondents against their solicitors would have arisen. To avoid this scenario, according to the applicant, the solicitors accepted an offer from her Honour to apply under s 98 of the Civil Procedure Act and proceeded to charge less fees in relation to the costs judgment so as to reduce the average overall legal fees. The applicant submitted that excessive legal fees could constitute misconduct and that a costs assessor would have referred the solicitors for disciplinary action. The excessive nature of the legal fees could be further confirmed by the number of legal professionals appearing for the two respondents at the hearings.

114. The applicant further submitted that the primary judge did not undertake any analysis on costs and held they were reasonable solely on the respondents’ submission that they were reasonable. He contended that the respondents and their solicitors were attempting to inflict economic hardship on the self-represented party through an abuse of process.

115. I have addressed her Honour’s reasons in relation to s 98 in some detail above. Her Honour noted that the generalised nature of the applicant’s complaints about the respondents’ costs meant that there was no challenge to particular amounts or particular line items. That left her Honour, as she said, in a position of having to make a determination for herself of what was reasonable. In arriving at an amount for both respondents, her Honour formed the view that what they respectively sought was too high, and made adjustments. The conclusion that her Honour reached was the product of a process of reasoning with which the applicant might disagree, but which was not unreasonable in the sense in which that term has been applied in the context of judicial review of administrative decisions: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [10]-[11]. No reviewable error has been established.

Ground 6: refusal to exercise jurisdiction under s 99 of the Civil Procedure Act (amended summons [22])

116. The applicant submitted that in the context of his application pursuant to s 99(1) of the Civil Procedure Act, it was clear that the respondents’ costs had been incurred by the serious neglect, incompetence, or misconduct of the legal practitioners, or incurred improperly or without reasonable cause. He submitted that the primary judge should have ordered the solicitors to produce a bill of costs and referred all bills of costs for assessment under s 99(3) of the Civil Procedure Act. In not taking this approach, her Honour afforded greater procedural fairness to the respondents, refusing to consider the applicant’s notice of motion on grounds that it was not filed when her Honour made the gross sum costs order without the respondents having filed an amended notice of motion.

117. As the second respondent submitted, her Honour considered the application that the applicant made under s 99 of the Civil Procedure Act on its merits, notwithstanding that her Honour did not consider that the requirements of procedural fairness had been met for the application to be dealt. This ground is without substance.

Conclusion on the application for review of the costs judgment

118. As with the application for review of the primary judgment, the applicant has not established any arguable reviewable error. The application for review was attended by a lesser period of delay, but the delay was in the order of two months after the expiration of the period in which proceedings for judicial review must be commenced and it was not accompanied by any satisfactory explanation. Particularly in view of the lack of merit in the grounds the extension of time should be dismissed in relation to this judgment as well.

Orders sought in relation to legal practitioners

119. The applicant also sought an order invoking this Court’s inherent jurisdiction with respect to several nominated legal practitioners, including the second respondent. The applicant contended that each should be directed to show cause why he or she should not be removed from the roll and referred to the Office of the Director of Public Prosecutions for investigation for “public justice offences” including s 319 of the Crimes Act 1900 (NSW). Save for the second respondent, the named practitioners were not parties to the proceedings.

120. There is no doubt that this Court has inherent jurisdiction to supervise legal practitioners and can take steps to bring a practitioner before the Court to be heard in respect of any conduct that the Court is concerned might have been improper: see Odtojan v Condon [2023] NSWCA 129 at [81]-[83] and the authorities there cited. However, on a review of the evidence in the present case I can discern no basis for the serious allegations that the applicant advanced in respect of the conduct of particular practitioners. No order of the nature sought should be made.

Conclusion

121. The applicant has been wholly unsuccessful. The second respondent seeks costs. The usual rule as to costs is that they follow the event: UCPR, r 42.1. The applicant has not provided any submissions as to why that usual rule should not apply. Accordingly, I propose the following order:

1. The extension of time to file the summons, which was amended pursuant to leave granted on 4 August 2024, is refused with costs.

122. PRICE AJA: I agree with Mitchelmore JA.

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Decision last updated: 30 October 2024