Shapkin v Lorenzato (No 2) - [2024] NSWSC 1630

Supreme Court

New South Wales

Medium Neutral Citation: Shapkin v Lorenzato (No 2) [2024] NSWSC 1630
Hearing dates: 17 December 2024
Date of orders: 18 December 2024
Decision date: 18 December 2024
Jurisdiction: Common Law
Before: Stern J
Decision:
The plaintiff’s notice of motion filed on 16 December 2024 seeking for a second time leave to reopen his case is dismissed.

Catchwords:
CIVIL PROCEDURE – Application by plaintiff to re-open proceedings – whether granting leave to the plaintiff to re-open proceedings is in the interests of justice

Cases Cited:
Cappello & Anor v Scrivener & Anor (No 2) [2021] NSWSC 168
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 81

Category: Principal judgment
Parties:
2022/00379809
Mr Vasily Shapkin (Plaintiff)
Ms Angele Lorenzato (First Defendant)
NSW Civil and Administrative Tribunal (Second Defendant)
Attorney General (NSW) (Amicus)
2022/00379871
Mr Vasily Shapkin (Plaintiff)
Ms Angele Lorenzato (Defendant)
Attorney General (NSW) (Amicus)
Representation:
Counsel:
V Shapkin (Litigant-in-person)
S Hoare (Amicus)
Solicitors:
Crown Solicitor (NSW) (Amicus)

File Number(s): 2022/00379809; 2022/00379871
Publication restriction: Nil
Decision under appeal

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

1. Consumer and Commercial Division
2. Consumer and Commercial Division
3. Consumer and Commercial Division
4. Appeal Panel
5. Consumer and Commercial Division
6. Appeal Panel
7. Consumer and Commercial Division

Date of Decision:

1. 15 December 2021
2. 28 January 2022
3. 1 March 2022
4. 25 March 2022
5. 8 April 2022
6. 24 June 2022
7. 21 July 2023

Before:

1. Senior Member L Wilson
2. Senior Member G Sarginson
3. Senior Member G Sarginson
4. Principal Member A D Suthers
5. Senior Member G Blake
6. Deputy President S D Westgarth, Senior Member G Ellis
7. General Member M McCue

File Number(s):

1. RT21/43089
2. RT22/52564
3. RT22/06803
4. 2022/00074365
5. RT22/14212
6. 2022/00106665
7. RT22/21474

JUDGMENT

These proceedings were commenced by summonses filed on 22 April 2022.
By motion filed on the afternoon of 16 December 2024, the plaintiff seeks leave to reopen two sets of proceedings (the proceedings) heard on 25 September 2024 (the substantive hearing), in which he sought leave to appeal from consent orders made by the Appeal Panel (the Appeal Panel) of the New South Wales Civil and Administrative Tribunal (the Tribunal) and also sought judicial review of those consent orders, and also of a range of other decisions of the Tribunal and Appeal Panel, details of which are set out in my judgment in the substantive proceedings, Shapkin v Lorenzato [2024] NSWSC 1620, with which this judgment should be read.
This is the plaintiff’s second application for leave to reopen the proceedings.
The application was heard on 17 December 2024. At the conclusion of that hearing I made orders dismissing the application. These are my reasons for making those orders.

Context

The context for this application is that, by email to my chambers of 23 September 2024, the plaintiff confirmed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shapkin v Lorenzato (No 2)

Details

AGLC: Shapkin v Lorenzato (No 2) [2024] NSWSC 1630
Case: [2024] NSWSC 1630
Decision Date: 18 December 2024

CaseChat Overview and Summary

The proceedings in Shapkin v Lorenzato (No 2) involved the plaintiff, Shapkin, seeking to re-open the proceedings against the defendant, Lorenzato, in the Supreme Court of New South Wales. The initial dispute related to an alleged breach of contract, with the plaintiff arguing that there were significant new facts that had come to light since the original proceedings. The defendant opposed the application to re-open the proceedings, asserting that the application was an abuse of process and would cause undue delay and prejudice.

The primary legal issue before the court was whether granting leave to the plaintiff to re-open the proceedings was in the interests of justice. This involved a consideration of the principles governing applications to re-open proceedings, including the balance between the need for finality in litigation and the requirement for justice to be done in individual cases. The court had to assess the significance of the new facts, whether they were truly new and could not have been reasonably discovered earlier, and the potential impact of allowing the re-opening on the administration of justice.

The court determined that while the new facts presented by the plaintiff were significant, they did not sufficiently justify re-opening the proceedings. The court found that the plaintiff had not demonstrated that the new facts were truly unknown and unknowable at the time of the original proceedings. Additionally, the court considered the substantial delay and potential prejudice to the defendant if the proceedings were re-opened. The court concluded that the application to re-open was not in the interests of justice, primarily due to the lack of a compelling reason to deviate from the finality of the initial judgment. Consequently, the application was dismissed.

No further orders were made beyond the dismissal of the plaintiff's application to re-open the proceedings. The judgment reinforced the importance of the finality of judgments and the careful consideration required when assessing applications to re-open proceedings.

Orders