Satchithanantham v Jackson Smith Lawyers Pty Ltd
[2011] NSWSC 412
•18 May 2011
Supreme Court
New South Wales
Medium Neutral Citation: Satchithanantham v Jackson Smith Lawyers Pty Ltd [2011] NSWSC 412 Hearing dates: 30 March 2011 Decision date: 18 May 2011 Jurisdiction: Common Law Before: Harrison AsJ Decision: 1. That Mr Thambiappah Satchithanantham be added as second plaintiff in these proceedings.
2. Mrs Satchithanantham's notice of motion filed 26 March 2010 is dismissed.
3. The proceedings are otherwise dismissed.
4. The plaintiffs are restrained from commencing any further proceedings in this Court against the defendant (including the filing and service of any notice of motion in these proceedings) until the costs, the subject of order 6 are assessed and paid by the plaintiffs.
5. The plaintiffs are restrained from filing and serving any notice of motion and/or pleadings in these proceedings without the leave of a judge of the Court; and in the event that the plaintiffs file and serve any further notice of motion and/or pleading in these proceedings without the leave of a judge of the Court: (a) the defendant be permitted not to attend at the return of such notice of motion; or (b) the defendant be permitted not to participate in the proceeding upon the notice of motion and/or pleading, unless the Court otherwise directs; or (c) any such notice of motion and/or pleading be dismissed without being heard, unless the Court otherwise directs.
6. The plaintiffs are to pay the defendant's costs of the proceedings on an indemnity basis.
Catchwords: PROCEDURE - civil - judgments and orders - set aside orders Legislation Cited: Legal Profession Act 2004
Uniform Civil Procedure Rules 2005Cases Cited: Grace v Thomas Street Caf Pty Ltd (No 2) [2008] NSWCA 72
National Australia Bank v Satchithanantham [2010] NSWCA 244
Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205
Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd (unreported, 30 March 2011, Fullerton J)Category: Procedural and other rulings Parties: Hemalathasothy Ranjini Satchithanantham (First Plaintiff)
Thambiappah Satchithanantham (Second Plaintiff)
Jackson Smith Lawyers Pty Ltd (Defendant)Representation: Counsel:
A T S Dawson (Defendant)
Solicitors:
T Satchithanantham (in person)
Yeldham Price O'Brien Lusk (Defendant)
File Number(s): 2008/285906
Judgment
HER HONOUR : The plaintiff is Hemalathasothy Ranjini Satchithanantham. ("Mrs Satchithanantham"). The proposed second plaintiff is Thambiappah Satchithanantham. ("Mr Satchithanantham"). The defendant is Jackson Smith Lawyers Pty Ltd. ("JSL").
Mrs Satchithanantham and Mr Satchithanantham relied on the affidavit of Mrs Satchithanantham dated 16 July 2008, the statement of Mr Satchithanantham dated 20 September 2010, the affidavits of Mr Satchithanantham 17 December 2010 and 8 March 2011, and their submissions dated 24 March 2011, 30 March 2011 and 17 February 2011. JSL relied on the affidavit of Robert Alan Finnigan sworn 24 February 2011.
At this hearing before this Court, Mr Satchithanantham appeared on behalf of his wife, Mrs Satchithanantham. He was not legally represented not legally qualified. Mr Dawson of counsel appeared for JSL. I have carefully read the written submissions and affidavits filed by the parties and listened to their oral submissions.
There are two notices of motion before the Court. Before I refer to them, it is convenient that I refer to the history of this matter.
History
In 2006, JSL acted for Mrs Satchithanantham in possession proceedings. JSL sought a solicitor/client costs assessment against Mrs Satchithanantham in relation to unpaid fees pursuant to that retainer. JSL sought assessment of its bill of costs for $29,804 dated 29 June 2007. On 10 July 2008, the Costs Assessor issued a certificate of determination of costs. A certificate was issued that recorded that JSL were to pay Mrs Satchithanantham the assessed costs of $19,324.99 [my emphasis added].
A reading of the Costs Assessor's statement of reasons dated 10 July 2008, makes it clear that the costs applicant was JSL, the costs respondent was Mrs Satchithanantham; that the total amount of the costs for providing legal services determined to be fair and reasonable was $20,752.05; and the total amount of disbursements determined to be fair and reasonable was $9,407.64. The certificate of determination of costs issued on 10 July 2008 accurately records that the costs applicant was JSL and the costs respondents was Mrs Satchithanantham. However, order 2 stated that, "the costs applicant (JSL) is to pay to the costs respondent (Mrs Satchithanantham) the sum of $19,324.99." This was clearly an error. It should have read that the costs respondent (Mrs Satchithanantham) is to pay the costs application the sum of $19,324.99.
Nevertheless, on 18 July 2008, Mr Satchithanantham, on behalf of Mrs Satchithanantham, registered the incorrect certificate of determination with this court and obtained a judgment against JSL. Mr Satchithanantham must have known that the certificate. In oral submissions before this Court he did not explain why his wife was entitled to take advantage of this error. Rather, Mr Satchithanantham was alleging that the amended certificate and other documents relating to the costs assessment process have been fabricated.
On 21 July 2008, the Costs Assessor issued an amended certificate of determination of costs. It correctly records that Mrs Satchithanantham was to pay JSL the sum of $19,324.99. Despite the issue of the amended certificate of determination, Mrs Satchithanantham did not consent to the setting aside of the judgment dated 18 July 2008.
The registration of a certificate of determination
Sections 372 of the Legal Profession Act 2004 (" the LPA ") provides:
"372 Determination to be final
A costs assessor's determination of an application is binding on all parties to the application and no appeal or other assessment lies in respect of the determination, except as provided by this Division."
The exceptions to a certificate of determination being final is where there is a review to a Review Panel under s 373 or an appeal under s 384 or an application for leave to appeal pursuant to s 385 of the LPA . The District Court has jurisdiction to hear these matters under ss 384 and 385 of the LPA .
A certificate of determination is, on the filing of the certificate in the officer or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed - see s 368 and for review s 378 of the LPA .
It is a relatively straightforward process to register a certificate that converts it into a court judgment. I shall refer to it later in my judgment.
The subsequent notices of motion
On 28 October 2009, JSL filed a notice of motion seeking that the judgment obtained by Mrs Satchithanantham on 18 July 2008 be set aside. On 5 November 2009, the proceedings came before the Court for directions. Consent orders were made for the service of evidence and the matter was relisted on 26 November 2009 for the allocation of a hearing date of JSL's motion. On 26 November 2009, the matter came before the Court and a hearing date was allocated for 1 December 2009. On 26 November 2009, Mrs Satchithanantham filed a notice of motion seeking that JSL's motion filed 23 [sic - should read 28] October 2009 be dismissed with costs.
There have been two significant hearings in this matter, one before Fullerton J on 1 December 2009 and the other before R S Hulme J on 17 May 2010. I shall refer to them now.
On 1 December 2009, the matter came before Fullerton J for hearing. Her Honour made the following orders:
"1. The judgment entered on 18 July 2008 that [JSL] pay to [Mrs Satchithanantham] the sum of $19,324.99 pursuant to certificate of determination of costs issued on 10 July 2008 be set aside.
2. [Mrs Satchithanantham] is to pay [JSL's] costs of this motion on an indemnity basis.
3. In so far as the second notice of motion is concerned, that is the notice of motion filed on 26 November 2009 by [Mrs Satchithanantham] in the primary proceedings, that notice of motion is dismissed.
4. I order [Mrs Satchithanantham] pay [JSL's] costs on an indemnity basis."
On 15 December 2009, Mrs Satchithanantham filed a notice of motion seeking that the orders made by Fullerton J be set aside and then essentially repleaded the wide-ranging orders, including an award for $10M for professional negligence, these were the orders she had she had sought in the earlier notice of motion that was dismissed by Fullerton J.
On 1 March 2010, the motion filed 15 December 2009 came before the Court for hearing. On that day, Registrar Bradford ordered that Mrs Satchithanantham's notice of motion filed 15 December 2009 be dismissed.
On 26 March 2010, Mrs Satchithanantham filed a further notice of motion seeking the following orders:
"1. Set aside the orders made by the registrar Bradford on 1/3/10.
2. The proposed second plaintiff and the proposed 2 nd , 3 rd , 4 th and the 5 th respondents be added further parties to these proceedings.
3. Re-instate the orders as sought in the plaintiff's notice of motion dated 15/12/09 dismissed by the registrar Bradford 1/3/10.
4. Costs in favour if the plaintiff on indemnity basis since commencement this matter until finally determined.
5. The proposed 2 nd , 3 rd , 4 th and 5 th respondents are liable for the orders 3 and 4 sought above jointly and severally."
On 17 May 2010, the matter came before Registrar Bradford for the hearing of the notice of motion filed 26 March 2010. The Registrar referred the matter to R S Hulme J for hearing.
The hearing before R S Hulme J
On 17 May 2010, R S Hulme J, in his extempore judgment recorded:
"I was informed by both Mr Satchithanantham and Mr Smith who appeared for the defendant, that Fullerton J's statement that she was invited by Mr Satchithanantham to deal with the notice of motion filed 26 November 2009 was wrong and that it was in fact Mr Satchithanantham's opponents who sought that her Honour deal with that notice of motion. In fact directions made on 26 November envisaged that that notice of motion would not be dealt with until sometime later than 1 December, viz 18 December."
His Honour concluded that:
"In light of Fullerton J's error and that the bases of the Registrar's decision are not apparent it may be that Mr Satchithanantham or his wife have a basis for seeking to have at least some of Fullerton J's orders set aside and notwithstanding that I am satisfied many of the orders sought are in the highest degree unlikely to be made, I do not think I should simply dismiss the motion today without giving Mr Satchithanantham or his wife the opportunity of having the matter fully considered by the court."
R S Hulme J directed that on or before 12 July 2010, Mr and Mrs Satchithanantham file and serve all evidence upon which either of them proposed to rely in support of the notice of motion filed 26 March 2010 and specify any affidavits to be relied upon and the paragraphs of those affidavits that may have been previously filed. His Honour further directed that Mrs Satchithanantham and Mr Satchithanantham specify the basis or bases of their claim for relief so far as it extends beyond the grounds specified in the notice of motion and directed them to specify with particularity:
"(i) The "rules" referred to in Ground 1 in that notice of motion;
(ii) The error of law referred to in Ground 2;
(iii) The "duress" referred to in Ground 3;
(iv) The "Misrepresentation" and "truth (sic) facts", referred to in Ground 4;
(v) The misleading referred to in Ground 5;
(vi) The "UCPR Rules" referred to in Ground 6;
(vii) The "denial of natural justices (sic)' referred to in Ground 8;
(viii) The actions constituting the misleading referred to in Ground 10;
(ix) The respect in which the second cost certificate referred to in Ground 10 is said to have been false;
(x) The misleading, including the actions said to constitute the misleading, referred to in Ground 11;
(xi) The misleading and the actions said to constitute the misleading referred to in Ground 12;
(xii) The misleading and the actions said to constitute the misleading referred to in Ground 13."
R S Hulme J struck out Ground 7, of the notice of motion filed 26 March 2010, and directed that subject to any further order, Mrs Satchithanantham and Mr Satchithanantham not be permitted to reply on matters not detailed as envisaged his Honour's preceding orders [my emphasis added]. Costs were reserved.
Since R S Hulme J made these orders on 7 May 2010, Mrs Satchithanantham has filed a number of affidavits and three lots of written submissions. It is this motion filed on 26 March 2010 by Mrs Satchithanantham that is before this Court for hearing. It is fair to say that the evidence, written and oral submissions did not address the issue of whether this Court had the jurisdiction to set aside the orders.
Mr Satchithanantham, on behalf of Mrs Satchithanantham, submitted in oral submissions to this Court that because JSL did not put on any evidence and had plenty of opportunity to do so, all the orders Mrs Satchithanantham seeks should be automatically made. Further, according to Mr Satchithanantham, JSL should have appealed to the Court of Appeal not his wife.
The main issues to be determined are, firstly, whether this court can and should set aside the orders made by Fullerton J and whether the orders made by Registrar Bradford on 1 March 2010 dismissing Mrs Satchithanantham's motion filed on 15 December 2009 should be set aside.
The relevant rules to convert a certificate of assessment into a judgment
Rules 6.1(2)(c) and 36.10 of the Uniform Civil Procedure Rules 2005 ("UCPR") relevantly read:
"6 .1 No step without originating process or notice of appearance
(1) Except by leave of the court, a party may not take any step in proceedings (including any appearance in court) unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings.
(2) Subrule (1) does not apply to:
...
(c) a defendant who makes an application in relation to the setting aside or enforcement of any judgment.
36.10 Filing of cost assessors' certificates
(1) A cost assessor's certificate:
(a) may be filed in the proceedings to which it relates, or
(b) may be filed in fresh proceedings, whether in the same court or another court.
...
(3) If some of the costs specified in the certificate or certificates have been paid, the certificate or certificates must be accompanied by an affidavit, sworn not earlier than 14 days before the certificate or certificates are filed, stating the amount of the costs that have been paid.
Note. The certificate or certificates will, from the date of filing, be taken to be a judgment of the court under Division 11 of Part 3.2 of the Legal Profession Act 2004 for:
(a) if the certificate or certificates are not accompanied by an affidavit under subrule (3)-the total amount of costs specified in the certificate or certificates, or
(b) if the certificate or certificates are accompanied by an affidavit under subrule (3)-the amount of costs that have not been paid.
UCPR 6.1 makes an exception to the rule that a party may not take any step in the proceedings without either filing a statement of claim or summons or a notice of appearance. A defendant, under UCPR 6.1(2)(c) does not have to comply with UCPR 6.1(1) if it is enforcing a judgment or seeking to set a judgment aside. Sections 368 and 379(6) of the LPA provide that a certificate of assessment, once filed, becomes a judgment of that court. Mrs Satchithanantham engaged the provisions of s 368 of the LPA and had the certificate of assessment registered as a judgment in this court. Pursuant to UCPR 6(1)(2)(c) JSL applied to have the incorrect judgment set aside.
The scope of what the parties were entitled to do under these Rules is very narrow. Once the judgment had been registered and the error correct the matter is at an end. There is no scope for the filing of other notices of motions.
The next issue is whether this Court can set aside the orders made by Fullerton J on 1 December 2009.
Entry of judgment and power to set aside and vary judgment or order
UCPR 36.11 and 36.16 read:
36.11 Entry of judgments and orders
(1) Any judgment or order of the court is to be entered.
(2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system.
(2A) If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered:
(a) when a document embodying the judgment or order is signed and sealed by a registrar, or
(b) when the judgment or order is recorded as referred to in subrule (2),
whichever first occurs.
(3) In this rule, a reference to a judgment or order of the court includes a reference to any judgment, order, determination, decree, adjudication or award that has been filed or registered in the court, or of which a certificate has been filed or registered in the court, as referred to in section 133 (2) of the Civil Procedure Act 2005 .
(4) This rule does not limit the operation of rule 36.10
36.16 Further power to set aside or vary judgment or order
(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order
(2) The court may set aside or vary a judgment or order after it has been entered if:
(a) it is a default judgment (other than a default judgment given in open court), or
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or
(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.
(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:
(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.
(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).
(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order."
UCPR 36.16(2) is not applicable as the parties were present before Fullerton J.
Counsel for JSL referred to Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 and Grace v Thomas Street Caf Pty Ltd (No 2) [2008] NSWCA 72 in relation to varying and setting aside courts orders and reopening judgments.
In Rockcote v FS Architects (No 2) Campbell JA, in referring to Rule 36.16, explained that these days court orders are entered by being recorded in the Court's computer system, without reference to the parties. That entry takes place very promptly after the judgment is delivered and the orders orally pronounced. It occurs pursuant to UCPR 36.11. UCPR 36.16 provides a window of 14 days after entry of judgment in which setting aside or variation can occur, notwithstanding that entry of judgment. I accept Mr Satchithanantham filed his wife's notice of motion seeking to set aside the orders of Fullerton J within the prescribed time period of 14 days.
Campbell JA in Rockcote v FS Architects (No 2) stated, in relation to UCPR 36.16, at [8] - [9]:
"8 To the extent that that 14-day window exists, an exception has been created to the principle that ordinarily a court has no power to set aside a final judgment after it has been entered; DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at [38]; Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481; Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529; Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145; Re Suffield (1888) 20 QBD 693; Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146. As UCPR 36.16(3A) and (3B) expressly state, any setting aside of a judgment or order under that power is to be carried out "as if the judgment or order had not been entered" .
9 Courts have traditionally exercised great restraint concerning setting aside or varying a judgment or order that has been made, but not entered. In Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302 Mason CJ accepted that "the jurisdiction is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation", and that "generally speaking it will not be exercised unless the applicant can show that by accident and without fault on his part he has not been heard." He went on, at 303, to say:
'However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of reagitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.'"
In Grace v Thomas Street Caf , Campbell JA (at [8]) had this to say in relation to UCPR 36.16:
"The respondents recognised that the discretion conferred by Pt 36.16 is to be exercised sparingly, having regard to the public interest in the finality of litigation: see Venus Adult Shops Pty Limited v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41. In De L v Director-General, Department of Community Services (NSW) (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215, the High Court, in the joint judgment of Toohey, Gaudron, McHugh, Gummow and Kirby JJ, explained the competing considerations involved in a court's determination whether to reopen its judgment or orders as follows:
'The power of this Court to reopen its judgments or orders is not in doubt. The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded 'on a misapprehension as to the facts or the law', where 'there is some matter calling for review' or where 'the interests of justice so require'. It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required 'without fault on his part', ie without the attribution of neglect or default to the party seeking reopening'. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case.'" (Citations omitted)
From these cases it can be said that the discretion to set aside a court's order is to be exercised sparingly having regard to the public interest in the finality of litigation.
The proceedings before Fullerton J
In these current proceedings both parties were present when Fullerton J dealt with the two notices of motion on 1 December 2009. Ms Obrart of counsel appeared for JSL. Mr Satchithanantham appeared for his wife. Hence, the appropriate rules to set aside or vary a judgment is that set out in UCPR 36(1) or 36.16(3) not UCPR 36.16(2).
When this matter was heard before me, the transcript of the proceedings before Fullerton J was unavailable. As outlined to the parties at the hearing, my associate was to order and obtain this transcript. Once it became available, she was to and she did forward it to both parties on 6 April 2011. As foreshadowed, the parties were invited, if they wished to do so, to make submissions in relation to the transcript within 7 days. JSL forwarded submissions, albeit late. On receipt of JSL's submissions, Mr Satchithanantham was given a further 7 days to make submissions in relation to the transcript or to comment on the plaintiff's submissions. Mr and Mrs Satchithanantham made further submissions albeit late.
The transcript of the hearing before Fullerton J dated 1 December 2009, in so far as what motions were to be determined, relevantly records as follows:
" HER HONOUR: Well, I am going to permit you to read his reasons now and when you read them you will see that he came to the conclusion that you should pay the solicitors' costs in the amount of $19,000 and so many dollars and consent. I am going to allow you time to read his reasons and then I am going to give you the last opportunity to say what it is you wish to say and then I am going to make a decision in this matter. Just take a moment. I am going to leave the bench. I am going to invite you to read his reasons, from page 18 of Mr Smith's affidavit to 21.
RESPONDENT: Before I had to make an application because I am putting under duress -
HER HONOUR: Mr Satchi, take whatever time you need to read the assessor's reasons.
RESPONDENT: I'm not a legal person.
HER HONOUR: Can you read English, sir?
RESPONDENT: I can understand--
HER HONOUR: Will you please, now, take the time to read pages 18 through to 21 of the affidavit that is on the lectern. Just read that document to yourself and then I am going to come back on the bench and give judgment.
SHORT ADJOURNMENT
HER HONOUR: You say there is a further motion you wish me to also rule upon, is that right?
OBRART: Yes, your Honour. There are two notices of motion that have been filed by Mr Satchi. He did refer to them today. They are on the file. They have been given a first return date of 18 December because they were filed after our motion. They deal with the same issue. The motions contain the allegation of fraud in relation to the certificate. If they aren't dealt with today this is all going to be done on the 18th. ... .
HER HONOUR: Mr Satchi, let me just make sure I have them in the file.
There is a notice of motion in the file dated 26 November.
RESPONDENT: Yes, your Honour.
HER HONOUR: It that a motion filed by you, Mr Satchi?
RESPONDENT: Yes, your Honour.
HER HONOUR: Are you asking me to--
RESPONDENT: It is appropriate they to be heard together, because also the order I sought leave, page 4, I sought this morning at page 4 that I had to put for the pleadings as the affidavit evidence, and in fact I have discussed this morning to the registrar I want to bring as a party. It's not a simple issue as I said before.
HER HONOUR: I will just need to read, just bear with me for a moment.
I note there is a file copy of a notice of motion filed dated 26 November. That is filed by Mr Satchi. The first defendant is Jackson Smith Lawyers, and Miss Obrart, you appear for that firm of solicitors?
OBRART: Yes, your Honour.
HER HONOUR: The notice of motion nominates Mr Jackson as a proposed second defendant and Mr Harris [the costs assessor] as a proposed third defendant. They are not currently parties to the proceedings so I will just pass over the identity of those men as proposed parties and just consider what the motion seeks by way of orders.
The first order that you seek is that the defendants notice of motion be dismissed, and that's the notice of motion Miss Obrart is moving on today, is that right?
RESPONDENT: Yes, that's correct.
HER HONOUR: Miss Obrart, there are various orders sought. I can deal with the first order because I am, in fact, already dealing with your motion and the orders will either be granted or the motion dismissed. So that doesn't trouble me.
The second order sought by motion is to set aside the cost assessment. Do I have power to do that?
OBRART: There is a procedure of appeal in relation to assessments, which is available in this court. That motion does not seek to invoke that right. So, our submission would be that there is no power to set aside an assessment, other than the usual appeal process.
...
HER HONOUR: The third order [of Mr Satchithanantham's motion] seeks to have Mr Jackson and Mr Harris joined as parties to the proceedings. Are you instructed to deal with the application to join Mr Jackson?
OBRART: Yes.
HER HONOUR: What is the defendant's position to this motion on that?
OBRART: The defendant's position is that the applicant, Mr Satchi, would have to demonstrate grounds for Mr Jackson to be joined as a party to the proceedings pursuant to the relevant rule and there is no evidence to support any basis to join him to the proceedings, given that the assessment certificate was between himself and the firm of solicitors.
HER HONOUR: So far as Mr Harris is concerned, I assume you are plainly not instructed to speak on his behalf, but what is your submission in so far as the joinder of that person is concerned?
OBRART: The first submission is that Mr Satchi, although he wishes that motion to be dealt with today, has not adduced any evidence that that motion has been served on Mr Harris so that no orders can be made against Mr Harris on the hearing of the notice of motion.
RESPONDENT: It's returnable next month.
HER HONOUR: You have asked me to deal with it today.
RESPONDENT: No, it's only their application.
HER HONOUR: A moment ago I said "do you want me to deal with this notice of motion today" and you said "yes". I propose to deal with the motion today.
RESPONDENT: My misunderstanding.
HER HONOUR: I propose to deal with the notice of motion today.
RESPONDENT: My understanding, they requested to deal with their motion. Both proposed to have both heard together. Because interlinking. If isolate one - "
(T 10. 47 -12.1-40)
JSL's submissions on the transcript
Counsel for JSL submitted the transcript of proceedings before Fullerton J on 1 December 2009, contrary to R S Hulme J's impression as recorded in his judgment of 7 May 2010, does not reveal any "error" on the part of Fullerton J as to the way in which she dealt with the plaintiff's first notice of motion.
Counsel for JSL gave the following interpretation of what occurred. It is clear that Mr Satchithanantham, at least initially, asked her Honour to deal with his motion, saying that it was "appropriate" that his motion and the defendant's motion "be heard together": (T11.13). Just prior to that exchange, the defendant's counsel confirmed that the defendant wished her Honour to rule upon Mr Satchithanantham's motion: (T 10.41-48). Her Honour was clearly informed that the first notice of motion otherwise had a first return date of 18 December 2009 having been filed after the defendant's motion to set aside the judgment.
According to counsel for JSL, Mr Satchithanantham, following these remarks, did not make any complaint about Fullerton J's ruling on his motion and confirmed that he wished her Honour to deal with the first notice of motion as well as JSL's motion. Fullerton J made it plain that she had understood Mr Satchithanantham to have asked her to proceed to deal with the motion. (T 12.25-39). It appears that Mr Satchithanantham changed his position. However, following Fullerton J's statement of her understanding that he did want her to deal with his motion, as well as JSL'S, Mr Satchithanantham did not seek to correct her Honour and confirmed her earlier remark. The relevant exchange was as follows: (T 12.31 to 12.40).
"HER HONOUR: A moment ago I said "do you want me to deal with this notice of motion today" and you said "yes". I propose to deal with the motion today.
RESPONDENT [Satchithanantham]: My misunderstanding.
HER HONOUR: I propose to deal with the notice of motion today.
RESPONDENT: My understanding, they requested to deal with their motion. Both proposed to have both heard together. Because interlinking. If isolate one - "
Mr Satchithanantham's submissions on transcript
Mr Satchithanantham's submissions on this topic are as follows:
"2. ...
(a) Plaintiffs' notice of motion was heard on duress and dismissed.
Quote: T10.23. AND at page -4 of the plaintiff's notice of motion of 26/11/2009, ground- 8, as referred above & T 11.14.
(b) The fact is that plaintiff's notice of motion was heard on 1/12/2009 on duress as T10. L23, despite the fact defendant itself conceded to hear both motions together on 18/12/2009 at T11.46 and her honour erred in law in overriding both parties' consent and overridden the law, which is a further" the limited circumstances ".
(c) Defendant's concession at T10.39: " They deal with " same issue" . The motion contains the allegation of " fraud in relation to the certificate". It is clear that defendant's application confirm the certificate was allegedly fraud.
(d) The fraud were the fabrications of many documents on 21/7/2008 by defendant and proposed defendants, as alleged by the plaintiffs, for which defendant did not challenge or provided any adverse evidence.
(e) Plaintiff's submission was nothing wrong with the original certificate issued, but there was" no amended certificate" , as in the court's records till to date.
3. (a) 1/12/2009, Plaintiffs have been treated unfairly by both before the registrar and before her honour, when both have powers of the court in support of the defendant s who have been legal professions is legal qualified , against plaintiffs. [see T10.28 - 37].
(b) Nothing can been seen any contrary in the reason of the cost assessor, [at pages 18 - 21 of the affidavit of Smith T10.L20, 35], what her honour was asked to deal with the plaintiffs and nothing said or evidenced before her honour as to the reasons of the judgment of 1/12/2009, which supports the plaintiffs' case, as to the submission made by the plaintiffs at T18.40 to T20.25., for which no challenge have been put by the defendants, even before his honour Hulme J on 17/5/2010 nor before her honour J Harries AsJ [sic] on 30/3/2011."
[Mr Satchithanantham's emphasis added]
Conclusion
I accept that Mr Satchithanantham stated (at T 10.23) that he was "putting under duress". He was then given the time to read the Costs Assessor's decision and granted an adjournment so he could do so. It was after this adjournment that Mr Satchithanantham asked that both motions be heard together. One of the orders that Mr Satchithanantham sought in his motion was that JSL's motion be dismissed. If that order was to be considered by her Honour then both the notices of motion had to be dealt with together. After Mr Satchithanantham agreed to have the motions determined together he appears to have understood this concept when he stated, "My understanding, they requested to deal with their motion. Both proposed to have both heard together. Because interlinking. If isolate one - ". Her Honour made it clear that she would proceed on that basis that the motions should be heard together.
After Mr Satchithanantham made submissions to the effect that the amended certificate was falsified, Her Honour asked Mr Satchithanantham what sort of evidence he could put before the Court to demonstrate fraud. He answered that it was in the Court of Appeal and made lengthy submissions on this topic (T 14.43 - 15.41). Her Honour then gave Mr Satchithanantham another opportunity to read the Costs Assessor's reasons for coming to the conclusion he did and make further submissions on that issue (T 18.34-38). After the adjournment Mr Satchithanantham took up that opportunity and made further submissions (T 18.45 - 19.48).
Her Honour gave an extempore judgment and referred to the incorrect certificate of determination and subsequent amended certificate as outlined earlier in this judgment. Her Honour continued at [18] to [23]:
"18 Despite Mr Satchi's assertion that the amended certificate of determination is a fabrication and that there has been collusion and fraud on the part of Mr Jackson, a solicitor employed by the applicant firm of solicitors, and Mr Harris as cost assessor, there is nothing in any of the material to which I have been referred to support that assertion, and nothing put in argument to raise the assertion beyond what I am satisfied is a baseless allegation which has every indication as being advanced by him in a last ditch attempt to avoid paying costs.
19. Without moving to any concluded view as to why the amended certificate of determination was filed in this Court, I am extremely doubtful that it was done in good faith as distinct from being done deliberately, also in an effort to avoid the consequence of the adverse costs finding by the cost assessor.
20. The notice of motion filed by Mrs Satchi, and apparently drafted by Mr Satchi, a notice of motion which as I have indicated I was invited to dispose of in the course of dealing with the primary application, seeks orders that are either unsupported by the evidence, contrary to proper procedure and/or beyond power.
21. They include seeking to join the cost assessor and Mr Jackson as parties to the motion without foundation, seeking to set aside the cost assessment as vitiated by failure to give reasons and/or because it was against the weight of the respondents' objections and fraud and collusion. An order is also sought substituting for the certificate of determination of costs in the cost applicants' favour an order that they pay Mrs Satchi's costs in the amount of $168,500.
22. Not only was Mr Satchi unable to coherently outline or describe the evidence he might call to support the allegation of fraud, in my view he has little appreciation of the seriousness of the allegation he makes.
23. Again, without moving to a concluded view overall the notice of motion seeks orders which convey the unmistakable sense of being sought for a collateral purpose, namely avoidance of the obligation to pay costs as assessed."
In these circumstances, could this Court exercise its discretion under UCPR 36.16(1) to set aside the orders of Fullerton J? His motion sought an order that the defendant's motion be struck out. Fullerton J was entitled to exercise her discretion and hear both motions together, particularly in the circumstances where Mr Satchithanantham agreed to that course of action. There is no basis for this Court to set aside or vary the judgment and orders made by Fullerton J on 1 December 2009. Any remedy, in the unlikely event there is one, lies in the Court of Appeal.
As Fullerton J had determined Mrs Satchithanantham's motion dated 26 November 2009, the motion dated 15 December 2009 sought to set aside Fullerton J's orders and that sought the same relief that had already been dealt with by her Honour. Registrar Bradford was entitled to dismiss the motion, as it was doomed to failure. It could also have been considered an abuse of process.
JSL's motion in these proceedings
JSL's motion of 24 February 2011 seeks the following orders and declaration. Firstly, that Mr Thambiappah Satchithanantham be added as the second plaintiff in the proceedings; secondly, that the proceedings be otherwise dismissed; thirdly, that the plaintiffs pay the defendant's costs of the proceedings on an indemnity basis, such costs to be assessable and payable forthwith; fourthly, that the plaintiffs be restrained from commencing any further proceedings in any court against the defendant (including the filing and service of any notice of motion in these proceedings) until the costs the subject of order 3 are assessed and paid by the plaintiff; and fifthly, additionally, that the plaintiff be restrained from filing and serving any notice of motion and/or pleadings in these proceedings without the leave of a judge of the Court; and in the event that the plaintiffs file and serve any further notice of motion and/or pleading in these proceedings without the leave of a judge of the Court: (a) the defendant be permitted not to attend at the return of such notice of motion; or (b) the defendant be permitted not to participate in the proceeding upon the notice of motion and/or pleading, unless the Court otherwise directs; or (c) any such notice of motion and/or pleading be dismissed without being heard, unless the Court otherwise directs. Order 6 of the notice of motion was not pressed and the order sought in Order 3 of the notice of motion is confined to "this Court". Mr Satchithanantham has sought to be added as a plaintiff in these proceedings and consents to the order being made.
Mrs Satchithanantham, who is represented by Mr Satchithanantham, has a history of attempting to relitigate issues that have already been decided both in this matter and other proceedings.
In National Australia Bank v Satchithanantham [2010] NSWCA 244, the Court of Appeal (per Handley AJA) commented at [28] - [29] and [36]:
"28 In my judgment the nine unsuccessful applications made by the respondent since 23 April this year were vexatious and abuses of the process of the Court.
29 The history I have outlined establishes that the respondents have frequently instituted and conducted vexatious proceedings in this Court and in the Common Law Division.
...
36 In my judgment therefore the Court has inherent power to restrain the filing of interlocutory applications after final judgment has been given in an appeal, and the Court should exercise that power."
The Court of Appeal made the following orders at [37]:
"1. Hemalathasothy Ranjini Satchithanantham is restrained from filing and serving any notice of motion and from making any oral application in these proceedings, either on her own behalf or on behalf of Bramooth Satchithanantham without the leave of a Judge of the Court.
2. If Hemalathasothy Ranjini Satchithanantham, without the leave of a Judge of the Court, files or serves any notice of motion in these proceedings, National Australia Bank Limited is not required to attend at the return of the notice of motion, or to participate in the proceedings upon the notice of motion unless a Judge of the Court otherwise directs, and unless a Judge of the Court thinks fit to give such direction, any such notice of motion shall be dismissed without being heard.
3. Leave pursuant to order 1 is to be sought by written application setting out the full basis on which leave is sought and the full basis for the claim for relief with a copy of the proposed notice of motion.
4. No oral hearing will take place on the application for leave, which will be determined on the papers without notice to other parties, unless a Judge of the Court otherwise directs."
Similar orders were made against Mr Satchithanantham.
Sackville AJA agreed with the orders proposed by Handley AJA and stated at [38] - [39]:
"38. ... I agree that the inherent jurisdiction of the Court extends to making orders of the kind sought here even after final orders have been made. There can be no doubt that the respondents have abused the process of the Court by filing repeated unmeritorious motions in the Court of Appeal proceedings after the Court made final orders on 2 September 2009.
39 I have some concerns about the utility of the orders in the form proposed by the Bank, since the proposed orders are confined to the filing of notices of motion and the making of oral applications " in these proceedings ". Wider orders might well have been sought by the Bank pursuant to the Vexatious Proceedings Act 2008."
His Honour's concerns were well founded.
In Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd (unreported, 30 March 2011, Fullerton J), Fullerton J outlined the applications made by the Satchithananthams in those proceedings. Her Honour referred to the Court of Appeal decision of National Australia Bank v Satchithanantham [2010] NSWCA 244 and concluded at [9] -[12]:
"9 I am satisfied that the plaintiffs could have been in no doubt that they had exhausted all possible legal avenues to challenge the judgment of this Court entitling the Bank to possession of the mortgaged property and recovery of the mortgage debt when the application for special leave to the High Court was refused in April 2010. This was put beyond question by the Court of Appeal in various published judgments after that date. Their refusal to accept that as a reality cannot be the subject of any further indulgence of this Court.
10 The statement of claim the subject of the notice of motion with which I am concerned is, however, a proceeding different from the proceedings with which the Court of Appeal was concerned. Accordingly, it cannot be said that they were brought in breach of the restraining orders made by the Court of Appeal. Were that the case the Bank would likely have taken appropriate steps to bring the matter to the attention of the Court of Appeal with a view to appropriate action being taken. I am nevertheless of the view that the plaintiff's conduct in bringing further proceedings against the Bank is a deliberate attempt to subvert the orders of the Court of Appeal and a blatant breach of the orders of Garling J.
11 In all the circumstances I am left in no doubt that the Bank has made out its case for relief.
12 Accordingly, the orders I make are:
1. The statement of claim dated 17 December 2010 be dismissed as being an abuse of process in so far as it seeks relief against the National Australia Bank.
2. The plaintiffs are to pay the costs of the motion on an indemnity basis.
3. The plaintiffs (or any of them) be restrained from bringing any proceedings in this Court against the National Australia Bank, seeking by the service of any process to require the appearance of the National Australia Bank in this Court or to require that any action be taken by the National Australia Bank in connection with any proceedings in this Court without the leave of a judge of this Court which leave is to be sought by written application setting out the full basis on which leave is sought and the full basis for the claim for relief with a copy of the proposed notice of motion.
4. No oral hearing will take place on the application for leave, which will be determined on the papers without notice to other parties, unless a Judge of the Court otherwise directs."
It is my view that the same course should be adopted in this matter. All that could be done, in this matter, was for the certificate of assessment to be registered as a judgment of this Court. That was done. There was an error in the certificate. Once the certificate was corrected the Court's judgment was corrected. This matter is at an end. Nevertheless, Mrs Satchithanantham on behalf of Mrs Satchithanantham continues to file notices of motion seeking wide-ranging relief. She is not entitled to do so but the history of this matter shows that she continues to file numerous motions raising the same matters that have already been dealt with. In order to put an end to this, I will make the orders sought by JSL except that I decline to order that the costs be payable forthwith.
The Court orders:
1. That Mr Thambiappah Satchithanantham be added as second plaintiff in these proceedings.
2. Mrs Satchithanantham's notice of motion filed 26 March 2010 is dismissed.
3. The proceedings are otherwise dismissed.
4. The plaintiffs are restrained from commencing any further proceedings in this Court against the defendant (including the filing and service of any notice of motion in these proceedings) until the costs, the subject of order 6 are assessed and paid by the plaintiffs.
5. The plaintiffs are restrained from filing and serving any notice of motion and/or pleadings in these proceedings without the leave of a judge of the Court; and in the event that the plaintiffs file and serve any further notice of motion and/or pleading in these proceedings without the leave of a judge of the Court: (a) the defendant be permitted not to attend at the return of such notice of motion; or (b) the defendant be permitted not to participate in the proceeding upon the notice of motion and/or pleading, unless the Court otherwise directs; or (c) any such notice of motion and/or pleading be dismissed without being heard, unless the Court otherwise directs.
6. The plaintiffs are to pay the defendant's costs of the proceedings on an indemnity basis.
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Decision last updated: 18 May 2011
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