State of New South Wales v Hollingsworth (No 2)

[2023] NSWCA 283

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283

Hearing dates:

On the papers

Date of orders:

28 November 2023

Decision date:

28 November 2023

Before:

Mitchelmore JA; Stern JA; Basten AJA

Decision:

(1)   Dismiss the respondent’s notice of motion filed on 7 September 2023.

(2)   Dismiss the respondent’s notice of motion filed on 18 July 2023.

(3)   Order that the respondent pay the State’s costs of the motions.

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – application to vary orders under UCPR, r 36.16(3A) – where notice of motion filed within 14 days – where amended notice of motion filed more than 14 days after orders entered – power of court to entertain amended application –power to amend motion only to the extent matters adequately notified within 14 day period

COSTS – application to vary costs order – UCPR, r 36.16(3A) – where question of costs addressed in submissions on appeal – no basis for variation made out

COSTS – appeals – Suitors’ Fund – where submissions by applicant had material role in errors by primary judge – where applicant on appeal opposed setting aside orders of primary judge – application for certificate refused

JUDGMENTS AND ORDERS – amending, varying and setting aside – Court of Appeal – application to vary orders under UCPR, r 36.16(3A) – whether proper basis to make variations sought – where matter litigated in District Court – inappropriate for Court of Appeal to resolve case management issues – orders refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 14, 56, 64

Suitors’ Fund Act 1951 (NSW), s 6

Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 18.2, 23.4, 36.16

Cases Cited:

Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47

AT v Commissioner of Police (NSW) (No 2) [2010] NSWCA 337

Aukuso v Tahan (No 2) [2018] NSWCA 302

Autodesk v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49

Boateng v Dharamdas [2019] NSWCA 233

Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12

Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133

Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111

Director of Public Prosecutions v Bignall [2015] NSWSC 870

Fuller v Albert (No 2) [2021] NSWCA 183

Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7

Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19

Kable v State of New South Wales (No 2) [2012] NSWCA 361

Lawrence v Ciantar (No 2) [2020] NSWCA 186

Majak v Rose (No 5) [2017] NSWCA 238

Malouf v Prince (No 2) [2010] NSWCA 51

McDonald v McDonald (1965) 113 CLR 529; [1965] HCA 45

Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491

Motorcycling Events Group Pty Ltd v Kelly (No 2) [2013] NSWCA 399

Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin (No 2) [2021] NSWCA 98

Onslow v Cullen (No 2) [2022] NSWSC 1363

R v Hookham (No 2) (1993) 32 NSWLR 345

Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336

Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205

Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691

State of New South Wales v Hollingsworth [2023] NSWCA 152

Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348

Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2

Category:

Procedural rulings

Parties:

State of New South Wales (Applicant)
Michael Hollingsworth (Respondent)

Representation:

Counsel:
D A Lloyd SC / JC Chapman (Applicant)
V Heath (Respondent)

Solicitors:
McCabes (Applicant)
Mitchell Lawyers (Respondent)

File Number(s):

2023/105049

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2023] NSWDC 46

Date of Decision:

6 March 2023

Before:

Judge Levy SC

File Number(s):

2021/14826

JUDGMENT

1. THE COURT: On 4 July 2023 this Court granted leave to appeal and allowed an appeal from orders of Judge Levy SC made on 6 March 2023: State of New South Wales v Hollingsworth [2023] NSWCA 152. The orders of this Court were:

“(1)   Leave to appeal granted.

(2)   Direct that within 7 days the State file a notice of appeal in the form of the draft amended notice of appeal filed on 9 June 2023.

(3)   The appeal is allowed.

(4)   Orders 1 to 4 made by the primary judge should be set aside and instead there should be orders that:

(a) under UCPR, r 23.4, Mr Hollingsworth is to submit to an assessment by a psychiatrist instructed by the State irrespective of whether that psychiatrist permits him to record the assessment by audio or audio-visual means; and

(b)   Mr Hollingsworth should pay the State’s costs of and incidental to the motion filed 17 October 2022

(5)   Mr Hollingsworth should pay the State’s costs of the application for leave to appeal and the appeal.”

2. Since these orders were made, Mr Hollingsworth has filed two applications seeking to vary those orders. The question before the Court is what, if any, orders this Court can and should make in response to those applications. Whilst Mr Hollingsworth seeks an oral hearing of these applications with a time estimate of three hours, that course is not in the interests of justice. Consistent with s 56 of the Civil Procedure Act 2005 (NSW) we must determine these applications in a way that seeks to facilitate the just, cheap, quick and cheap resolution of the issues raised. That aim strongly militates in favour of the applications before the Court being resolved promptly on the material before the Court, which includes six sets of written submissions and nine affidavits and comprises many hundreds of pages, all filed since judgment was delivered and orders made on 4 July 2023. The extent to which the resources of those acting for Mr Hollingsworth, the State of New South Wales (“the State”) and necessarily also the Court, have been expended demonstrates clearly the dangers of ignoring the strictures which properly should attend such applications.

3. Further, Mr Hollingsworth submits that the “true facts” have only emerged after we made orders on 4 July 2023 and that the State does not intend and has never intended to have Mr Hollingsworth psychiatrically examined consistent with the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) or this Court’s reasons for decision. Those submissions raise serious matters which are wholly unsupported by the evidence before us. In our judgment they should never have been made. Rather, as is apparent from the evidence (described below), the State has been taking steps to seek to comply with our orders. Had the State not been able to do so, the appropriate course would have been to raise this with the District Court (as the State did when difficulties in complying consistently with Mr Hollingsworth’s requirements arose in September 2023).

Motion filed 18 July 2023

4. By motion filed on 18 July 2023 (“First Application”), Mr Hollingsworth applies to set aside orders 4 and 5 made on 4 July 2023 and seeks additional orders. He relies upon the power of the Court pursuant to UCPR, r 36.16(3A). The orders sought by Mr Hollingsworth (modified as indicated in paragraph 8(a) of Mr Hollingsworth’s submissions in reply on that motion) are as follows:

“a.   order (4)(b) that Mr Hollingsworth should pay the State’s costs of and incidental to the motion filed 17 October 2022 be set aside and, instead, an order that costs of the motion filed 17 October 2022 be costs in the cause, alternatively that there be no order as to costs of that motion;

b.   order (5) that Mr Hollingsworth should pay the State’s costs of the application for leave to appeal and the appeal be set aside;

c. an additional order that the court grant Mr Hollingsworth an indemnity certificate under s 6(1) of the Suitors’ Fund Act 1951;

d. an additional order pursuant to UCPR r 23.4 that the State is to pay the reasonable costs of and incidental to the attendance of Mr Hollingsworth and his appointed medical expert at any psychiatric examination appointed by the State in accordance with order (4)(a), alternatively that the court declare that UCPR r 23.3 applies to any notice given by the State pursuant to or giving effect to order 4(a);

e. an additional order remitting or referring to the primary judge any question arising as to any working out of order (4)(a) that under UCPR rule 23.4 Mr Hollingsworth submit to assessment by a psychiatrist instructed by the State irrespective of whether that psychiatrist permits him to record the assessment by audio or audio-visual means be referred to the primary judge, alternatively, liberty to apply on 7 days notice.”

5. In support of the First Application Mr Hollingsworth relies upon an affidavit of Simon Paul Mitchell filed 18 July 2023 together with annexures comprising 53 pages of documents, an affidavit of Simon Paul Mitchell filed 25 July 2023 with an annexure comprising a further 12 pages of documents and a third affidavit of Simon Paul Mitchell filed 28 August 2023 annexing further correspondence. The submissions filed on behalf of Mr Hollingsworth on the First Application (in chief and reply) comprise some 44 pages. That description alone gives some flavour of the way in which Mr Hollingsworth approached these applications by which he seeks to agitate matters that, for the greater part, were either already raised before this Court on the appeal or extended well beyond the proper ambit of an application to vary or set aside orders under UCPR, r 36.16(3A). The State relies upon an affidavit of Rebecca Jane Gracie filed 2 August 2023.

Further motion filed 7 September 2023

6. By further motion filed 7 September 2023 (“Second Application”) Mr Hollingsworth applies to amend the First Application. Mr Hollingsworth’s proposed amendments are both substantive and extensive.

7. At new proposed order 1(a1) Mr Hollingsworth seeks an order that:

“orders 1, 2, 3, 4 and 5 [that is, the entirety of the orders made by this Court on 4 July 2023] be vacated and, instead, the application for leave to appeal be dismissed with an order that the State pay Mr Hollingsworth’s costs of the leave application and appeal on an indemnity basis”.

8. By way of alternative to new proposed order 1(a1), Mr Hollingsworth maintains the applications he made in his motion filed 18 July 2023 (set out at [4] above) with the following modifications:

1. He maintains his application at (a), to set aside order 4(b) of this Court’s orders dated 4 July 2023 dealing with the costs of the proceedings before the primary judge, but seeks different orders as to those costs from those sought in his motion filed 18 July 2023;

2. He maintains his application at (b), to set aside order 5 of this Court’s orders dated 4 July 2023 dealing with the costs of the proceedings before this Court, but seeks different orders as to those costs from those sought in his motion filed 18 July 2023;

3. He maintains his application at (e), seeking an additional order remitting or referring certain matters to the primary judge but seeks also an order giving the primary judge “the power to set aside or vary [order 4(a) of this Court’s orders dated 4 July 2023] or to relieve Mr Hollingsworth from compliance with it”;

4. He seeks alternative orders as to the costs of the motion.

9. In support of the Second Application Mr Hollingsworth relies upon the evidence relied upon in the First Application and upon two further affidavits of Mr Mitchell, filed 7 September 2023 and 25 September 2023 and an affidavit of James Farquhar Merewether filed 23 October 2023. For its part, the State relies upon two further affidavits of Ms Gracie, filed 5 October 2023 and 7 November 2023. Submissions in chief and reply have been filed by Mr Hollingsworth in support of the Second Application. The State has also filed submissions.

10. In summary, in support of the Second Application Mr Hollingsworth relies upon correspondence from the State indicating that despite considerable effort the State was finding it difficult to find a psychiatrist who was willing to conduct a medico-legal assessment of Mr Hollingsworth with Professor McFarlane (the very experienced expert psychiatrist instructed by Mr Hollingsworth in the proceedings) in attendance and taking notes. Mr Hollingsworth also relies upon the fact that the State asked the District Court to make orders regulating the attendance and/or note taking of a medical practitioner of Mr Hollingsworth’s choice at a medico-legal assessment by an expert instructed by the State.

11. As is apparent from the evidence, the current position is as follows.

1. The proceedings have now been specially fixed for 4 weeks commencing 21 October 2024 in the District Court.

2. The proceedings are listed for case management directions in the District Court on 11 December 2023.

3. The State has identified two psychiatrists, Dr Apler and Dr Phillips, who are content to conduct a medico-legal assessment of Mr Hollingsworth with Professor McFarlane present. Each has proposed some additional conditions upon the conduct and involvement of Professor McFarlane during the proposed assessment. By letter dated 3 November 2023 Mr Hollingsworth’s solicitors indicated that Mr Hollingsworth would “rely upon his rights under UCPR rr 23.3 and 23.5 in full” and otherwise would accept the proposed conditions for the appointment of Dr Phillips.

Evidence

12. To the extent necessary, leave is granted to the parties to rely upon the affidavits described above. We have taken all of the evidence into account for the purpose of determining the First and Second Applications.

Relevant principles

UCPR, r 36.16

13. Affirming the importance of the finality of litigation, in Bailey v Marinoff (1971) 125 CLR 529 at 530; [1971] HCA 49 Barwick CJ held:

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance…beyond recall by that court.”

14. Menzies J held, at 531-532:

“However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend [to] the making of orders in litigation that has been brought regularly to an end.”

15. This passage was cited with approval by Aickin J (with the approval of Barwick CJ and Stephen J) in Gamser v Nominal Defendant (1977) 136 CLR 145 at 153; [1977] HCA 7, who held:

“In this Court it was argued that the cases there relied upon did not cover the situation of fresh evidence and that fraud was in truth an example or category of fresh evidence, but the cases do not recognize such a principle and indeed are inconsistent with it.”

16. These statements were made at a time when orders were entered on the application of a party and short minutes of the proposed orders were served on the other party in advance of them being entered by the Registrar. There was then an opportunity for the parties to address the form of the orders before they were entered. When the current system, whereby orders were entered by the Court in its electronic records immediately after judgment was delivered, it became necessary to provide an opportunity for the parties to seek to vary the orders before the general law principles of finality were engaged. This was done by introducing the statutory exception set out in UCPR, r 36.16. This relevantly provides:

(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.

…

(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.

17. As is well-established, the power conferred by UCPR, r 36.16 is to be exercised “sparingly and with caution” having regard to the importance of the finality of litigation, and “does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them”: Majak v Rose (No 5) [2017] NSWCA 238 (“Majak”) at [12]-[13] (Leeming and Simpson JJA, Emmett AJA). The purpose of the power is “to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal”: Majak at [12].

18. In Autodesk v Dyason (No 2) (1993) 176 CLR 300 at 302-303; [1993] HCA 6 Mason CJ said:

“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.

…

However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating 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 ... The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.”

19. These principles apply to applications under UCPR, r 36.16(3A): Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [9] (Campbell JA, McColl JA and Handley AJA agreeing) and Lawrence v Ciantar (No 2) [2020] NSWCA 186 (Bathurst CJ, Meagher and Gleeson JJA) at [6]. The power under r 36.16(3A) should be “exercised with great caution, having regard to the importance of the public interest in the finality of litigation”: Lawrence v Ciantar (No 2) at [7].

20. Whilst, as set out above, jurisdiction under UCPR, r 36.16(3A) may be exercised where the Court has apparently proceeded under a misapprehension, the reference to misapprehension in this context is concerned with matters of oversight and inadvertence, and not with deliberate decisions which are said to be incorrect: Dickson v Commissioner of the Australian Federal Police (No 2) [2023] NSWCA 111 at [4] (Meagher and Brereton JJA).

21. If it is sought to set aside orders on the basis that they were obtained by fraud, this should generally be done by way of fresh proceedings: McDonald v McDonald (1965) 113 CLR 529 at 533; [1965] HCA 45 (Barwick CJ); Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 699-700 (Handley JA, Mahoney and Clarke JJA agreeing); Clone Pty Ltd v Players Pty Ltd (In Liq) (2018) 264 CLR 165; [2018] HCA 12 at [32].

22. Ordinarily, questions of costs should be raised and addressed at the appeal hearing rather than by parties making separate and subsequent applications: Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 at [5]-[7]. As this Court said in Fuller v Albert (No 2) [2021] NSWCA 183 at [31]:

“If [parties] wish to make submissions on costs, they should either do so at the hearing of the appeal, addressing the foreseeable possible outcomes, or in special circumstances seek leave to make costs submissions after the outcome is known.”

Time limits for an application under r 36.16

23. UCPR, r 36.16(3C) provides that, despite UCPR, r 1.12 (which gives the court a power to extend or abridge time fixed by the UCPR), the court may not extend the time limited by r 36.16(3A). As held by Basten JA in Deputy Commissioner of Taxation v Meredith (No 2) (2008) 75 NSWLR 462; [2008] NSWCA 133 at [15]:

“The removal of the power to extend the 14-day period makes it sufficiently clear that the intention is that the period is not variable, but reflects the need for judgments and orders to be final and certain as to their operation.”

24. Section 14 of the Civil Procedure Act provides:

In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.

25. An application under r 36.16(3A) may be entertained where adequate written notice has been given, or a timely oral application made, albeit no motion was filed within the 14 day period prescribed: Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19 at [11]; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336 at [10]; Aukuso v Tahan (No 2) [2018] NSWCA 302 at [43], [45], [46] (Simpson AJA, Macfarlan JA agreeing; Meagher JA at [5] holding that there was no power to entertain the application in the circumstances). This is on the basis of dispensation, under s 14 of the Civil Procedure Act, with the requirement under UCPR, r 18.2 that a notice of motion be filed and served: Motorcycling Events Group Pty Ltd v Kelly (No 2) [2013] NSWCA 399 at [2].

26. In Kable v State of New South Wales (No 2) [2012] NSWCA 361 (“Kable (No 2)”) Allsop P (Campbell and Meagher JJA agreeing) held that the power to dispense with the filing of the motion should not go beyond the content of the letter notifying the application as that “would raise the far more difficult question as to whether s 14 can operate to override the operation of r 36.16(3C) and, if it can, the stringency of any such operation”: at [3]. Basten JA, (Allsop P, Campbell, Meagher JJA and McClellan CJ at CL agreeing) held that the Court’s power was limited to “the matter” notified to the Court within the 14 day period in r 36.16(3A) and found that there was no basis to entertain the application to the extent it went beyond that matter: at [11]-[16].

27. Where no notice of an application to vary has been given to the Court within the 14 day period prescribed by r 36.16(3A), this Court has held that “arguably” no application will be entertained: AT v Commissioner of Police (NSW) (No 2) [2010] NSWCA 337 at [7] (Basten JA, Beazley and Macfarlan JJA agreeing). In that case, Basten JA explained the basis of this position (at [9]):

“Although the possibility of reliance on s 14 was also noted in Spina v Permanent Custodians Ltd (No 2) [2009] NSWCA 419 at [9], the difficulty with such an approach is that the course permitted by s 14 must act differentially, so as to remove the time limit and leave an unlimited power in the Court to vary orders which have been entered. Because r 36.16 itself precludes the operation of r 1.12, which might otherwise allow the Court to extend the time, this would constitute a rewriting of r 36 in a way clearly not envisaged by its terms: cf r 36.16(3C).”

28. Whilst it was unnecessary to decide the issue, in Boateng v Dharamdas [2019] NSWCA 233, Macfarlan JA (Gleeson JA agreeing) said of the question whether s 14 of the Civil Procedure Act could be relied upon to permit an order to be made extending that 14 day period in r 36.16(3A) that “[t]here is no doubt as to this because r 36.16(3C) states expressly that the court may not extend the time limited by subr (3A)”: at [24]. More recently, in Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin (No 2) [2021] NSWCA 98 at [38] White JA (Basten and Macfarlan JJA agreeing) held:

“I do not consider that s 14 would permit the extension of the time prescribed by r 36.16(3A) for the filing of the notice of motion. I share the difficulty articulated by Basten JA in AT v Commissioner of Police NSW (No 2) in seeing how a power to dispense with a rule assists a party who needs to rely on the rule to avoid the effect of the principle that a final order (including as to costs), once entered, cannot be varied or set aside except on appeal. I doubt that the power in s 14 to dispense with a rule extends to dispensing with a condition to the operation of the rule, the effect of which would be to enlarge the operation of the rule”.

29. Even if there were power in the Court to extend the 14 day period prescribed under UCPR, r 36.16(3A), it is well established that any application should be determined in accordance with the principles set out in Bailey v Marinoff: Malouf v Prince (No 2) [2010] NSWCA 51 at [23]; Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2 at [28] (Gleeson JA, Ward and Payne JJA agreeing).

Amendment of an application under UCPR, r 36.16(3A)

30. UCPR, r 36.16 does not include any express provision for amendment of an application made under r 36.16(3A).

31. UCPR, r 36.16(4) provides:

Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.

32. Section 64 of the Civil Procedure Act provides:

(1)   At any stage of proceedings, the court may order—

(a)   that any document in the proceedings be amended, or

(b)   that leave be granted to a party to amend any document in the proceedings.

(2)   Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3)   An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4)   If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5)   This section does not apply to the amendment of a judgment, order or certificate.

33. In Malouf v Prince (No 2) an application under UCPR, r 36.16(3A) was made within the 14 day period prescribed but a subsequent application was made for more extensive variation. The applicant’s submission, summarised at [10], was:

“on the proper construction of UCPR 36.16(3A), the power of the Court to set aside or vary was not confined to a judgment or an order specified in a notice of motion filed within the 14 day time limit, but extended to such others as might be specified by an amendment of the notice of motion made after expiry of the time limit. In other words, it was contended, in substance, that the effect of filing a notice of motion within time under UCPR 36.16(3A), albeit limited to challenging only one order, was to expose all the orders made to being set aside or varied.”

34. This Court (McColl and Macfarlan JJA and Nicholas J) rejected that contention:

“16 In our view the Court does not have that power. Nothing in the language of UCPR 36.16 supports such a construction. Rather, the language of the rule makes it plain that the matter the Court is empowered to determine is the question raised by a notice of motion filed within time for the setting aside or variation of a judgment or order.

17 The words “as if the judgment or order had not been entered” in subrule (3A) direct attention to the judgment or order addressed by the notice of motion filed within the 14-day window. The use of the definite article “the” with “judgment or order” where appearing serves to identify the judgment or order as that with which that notice of motion is concerned. The inability to extend the time period for which subrule (3A) provides confirms the limited nature of the Court’s power. This is consistent with the fact that UCPR 36.16 operates as an exemption from the general rule earlier referred to. However the gateway to relief is narrow. If it were otherwise it would undermine “the need for judgments and orders to be final and certain as to their operation”: Deputy Commissioner of Taxation v Meredith (No. 2) (at [15]).”

35. Whilst it does not appear that the Court’s attention was specifically drawn to s 64 of the Civil Procedure Act, it is apparent that the Court was well aware that there was a general power to amend a notice of motion. The decision of the Court was firmly based upon the terms of r 36.16(3A) and (3C). In that case, moreover, counsel conceded that he could not point to any circumstance which would attract the s 14 discretion or that could bring the case within any exception to the general rule in Bailey v Marinoff.

36. In Fuller v Albert (No 2) this Court granted leave to amend a notice of motion seeking orders under UCPR, r 36.16(3A). It is not possible from the reasons for judgment to ascertain the ambit of amendment permitted. It is not clear whether the amendment was contested, or whether the amendment raised a matter not adequately notified within the prescribed period in UCPR, r 36.16(3C). There is no reference in the judgment in Malouf v Prince (No 2) in the Court’s reasons.

The Court’s power to determine the applications

37. As the First Application was filed within 14 days of the entry of orders, the question as regards that application is whether there is a proper basis on which to make the variations sought.

38. As regards the Second Application, consistent with the judgment of this Court in Malouf v Prince (No 2), the Court has no power to determine the application to the extent that it raises matters which were not adequately notified to this Court within the 14 day period prescribed in UCPR, r 36.16(3A) by the First Application. That is so irrespective of whether the application to amend is made pursuant to s 64 of the Civil Procedure Act or pursuant to the court’s inherent or implied powers. So to hold logically flows from the decision of this Court in Kable (No 2) that the court had jurisdiction to entertain an application under UCPR, r 36.16(3A) only to the extent that the matter had been adequately notified to the court within the 14 day period prescribed. It is also entirely consistent with the judgments of this Court in AT v Commissioner of Police, NSW (No 2); Boateng v Dharamdas, and Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin (No 2) doubting that s 14 of the Civil Procedure Act could be relied upon to dispense with or extend the 14 day period prescribed by UCPR, r 36.16(3A). The same concerns about allowing matters to be raised with the Court after that 14 day period has elapsed apply where the application seeks to rely upon s 64 of the Civil Procedure Act rather than s 14.

39. It follows that the Court would not entertain the Second Application to the extent that Mr Hollingsworth seeks, in proposed order 1(a1) to vacate all of the orders made by this Court on 4 July 2023. Beyond that, the Court has power to entertain the application to amend. In each case, an application to set aside the relevant order was made in the First Application, which was filed within the 14 day period prescribed by r 36.16(3A). Whilst different orders are sought in the Second Application from those sought in the First, consistent with the authority set out above, the question is whether there is adequate notice of the matter within the prescribed time period: Aukuso v Tahan (No 2). As regards each of proposed orders 1(a), (b), (e) and 4 what changed as between the First and Second Applications is that, in the Second Application, additional orders are sought in place of the orders which are sought to be aside, in the alternative to the orders sought in the First Application.

40. We add that even if the Court had power to entertain the Second Application as regards proposed order 1(a1) we would refuse the application in the exercise of our discretion. The order sought involves a complete reversal of our judgment and orders as made. The matters relied upon by Mr Hollingsworth in support of are not matters which could justify such an order. Mr Hollingsworth does not rely upon any misapprehension of the facts or law at the time when we made our orders. Rather, he relies upon factual developments since that time. Such developments do not justify the exceptional course of setting aside the entirety of the orders we made at the conclusion of the appeal proceedings. That course would fly in the face of the interest in the finality of litigation so clearly set out by the High Court in Bailey v Marinoff and Gamser v Nominal Defendant.

41. In these circumstances, we would permit Mr Hollingsworth to amend the First Application to seek orders 1(a), (b), (e) and 4 as set out in the Second Application but would otherwise refuse the Second Application.

Costs at first instance and on appeal

42. Orders 1(a) and (b), as sought by Mr Hollingsworth in the First Application as amended, seek to vary the orders made by this Court on 4 July 2023 as to the costs of the motion filed 17 October 2022 and of the application for leave to appeal and the appeal.

43. The ground upon which this variation is sought is that this Court’s Order 4(a) is in different terms to the orders sought by the State before the primary judge and on appeal and Mr Hollingsworth has not had an opportunity to be heard on costs having regard to the specific terms of that order and the Court’s reasons. It is also contended in the written submissions filed on behalf of Mr Hollingsworth that Order 4(a) should be varied because the State narrowed its position before the primary judge after Mr Hollingsworth had incurred costs dealing with matters abandoned, and because Dr Brown has now refused to examine Mr Hollingsworth and the State has only now identified an expert who will examine Mr Hollingsworth on the conditions that this Court has held to apply. Alternatively, it is argued that costs should be costs in the cause reflecting the “ordinary rule” in interlocutory proceedings and in applications for orders under UCPR, r 23.4, that each party bear its own costs, or that the State be ordered to pay Mr Hollingsworth’s costs of the motion or that the order in the Court below not be disturbed. These latter orders are sought on the basis that the orders made were not precisely those sought, and that Mr Hollingsworth’s position was reasonable.

44. As to the costs on appeal, Mr Hollingsworth contends that the order made by this Court shows that “Mr Hollingsworth was justified in resisting the order sought by the State in its terms” (emphasis in original). It is also submitted that an appropriate order would be an order for costs in the cause or for each party to have 50% of its or his costs. It is also submitted that if the Court were ultimately to determine that its own orders should be set aside, as Mr Hollingsworth submits is a possibility if the State ultimately does not proceed with an examination of Mr Hollingsworth, then the State should pay Mr Hollingsworth’s costs.

45. Broadly the relevant history as to the orders sought by the State is as follows.

46. The State’s notice of motion, filed 17 October 2022, relevantly sought the following orders:

“1. The plaintiff to attend an examination by Dr Lisa Brown (psychiatrist) pursuant to rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW):

(a)   in person;

(b)   with the option to bring a support person other than his spouse, adult child, lawyer or medicolegal practitioner; and

(c)   without recording the examination in any form.

…

4.   That the plaintiff pay the State of New South Wales' costs of and incidental to this motion.”

47. As set out in Stern JA’s judgment on the appeal at [32]:

“On 3 November 2022 the motion was listed for hearing on 23 February 2023. On the first day of the hearing, counsel for the State confirmed that “the only matter at issue is an examination of Dr Brown on the condition of there being no recording in any form”, being order 1(c) sought in the notice of motion. Further, counsel for the State confirmed that the State did not press 1 as set out in the notice of motion, but instead pressed an amended form of order, namely that:

“the plaintiff to attend an examination by Dr Lisa Brown (psychiatrist) pursuant to rule 23.4 of the UCPR without recording the examination by audio or visual means”.”

48. The primary judge dismissed the State’s motion and instead relevantly ordered that any forensic psychiatrist appointed by the State be directed to permit Mr Hollingsworth to make a sound recording of the entire assessment session on the proviso that Mr Hollingsworth provide that expert with a full copy of such a recording if requested to do so. The primary judge also ordered that the State pay Mr Hollingsworth’s costs of the dismissed motion on the ordinary basis unless a party can show an entitlement to some other order for costs. It does not appear that any application was made to the primary judge to vary that order.

49. The primary judge recorded that counsel for Mr Hollingsworth had submitted to him that “the Court may direct that any medical examination of the plaintiff that is the subject of an order made pursuant to UCPR r 23.4 be audio recorded”: Hollingsworth v State of NSW [2023] NSWDC 46 at [134]. It is also clear that in large measure the primary judge accepted the submissions advanced by Mr Hollingsworth in dismissing the State’s motion.

50. By an amended notice of appeal the State sought orders in this Court including, relevantly that in lieu of the order of the primary judge set out above there be an order that Mr Hollingsworth be directed to attend an appointment with Dr Lisa Brown or any other suitably qualified psychiatrist and that Mr Hollingsworth not be permitted to make an audio or audio-visual recording of that appointment in the absence of the consent of Dr Brown or that other suitably qualified psychiatrist. The amended notice of appeal also sought an order that Mr Hollingsworth pay the State’s costs of the appeal and of State’s notice of motion filed in the Court below.

51. Under the heading “Costs”, the written submissions advanced by Mr Hollingsworth contended that the State should bear Mr Hollingsworth’s costs in any event, and that the costs order below should not be disturbed or, if the appeal is upheld, the costs in the Court below should be costs in the cause. No substantive submissions were set out. Under the heading “Leave”, it was contended that if leave to appeal was granted on the basis that the appeal involves a matter of importance to the general administration of justice or on the State’s submission that this Court should give guidance on the question then any such grant should be on terms that the State pay Mr Hollingsworth’s costs in any event.

52. In its reply submissions, the State submitted that there was no basis for the costs orders as sought by Mr Hollingsworth.

53. In oral submissions before this Court, Mr Lloyd SC, Senior Counsel for the State, submitted that the case was not a test case and that costs should follow the event. Ms Heath, counsel for Mr Hollingsworth, did not address costs in her oral submissions.

54. As set out above, on 4 July 2023 this Court granted leave to appeal and allowed the appeal. The grant of leave was on the basis of the primary judge’s discretion having miscarried. This Court made orders, including an order that Mr Hollingsworth submit to an assessment by a psychiatrist instructed by the State irrespective of whether that psychiatrist permits him to record the assessment by audio or audio-visual means and that that Mr Hollingsworth should pay the State’s costs both of and incidental to the motion filed 17 October 2022 and of the application for leave to appeal and the appeal. Whilst the Court did not give reasons for the costs orders made, it was readily apparent that it had concluded that this was a case in which the ordinary rule would apply and that costs should follow the event. Whilst Mr Hollingsworth had in his submissions contended that there should be a different outcome if leave to appeal were granted on the basis of general importance or the need for guidance, that was not the basis upon which leave to appeal was granted. No substantive submissions had been advanced by Mr Hollingsworth in support of his contentions as to costs.

55. As is readily apparent from the chronology set out above, the orders sought by the State on appeal included an order that Mr Hollingsworth pay its costs of the motion and of the application for leave to appeal and the appeal, and brief submissions were made in writing and orally as to costs. In these circumstances, there is no basis for this Court to revisit its decision as to costs under UCPR, r 36.16(3A). This is not a case in which the question of costs was not addressed in submissions before this Court. The modification of the State’s position before the primary judge was readily apparent well before this appeal was initiated. Any divergence between the orders sought by the State before the primary judge, and the orders sought by the State on appeal, was also readily apparent at the time when written and oral submissions were advanced before this Court. There is no suggestion that this Court has misapprehended the law or the facts.

48. Moreover, whilst Order 4(a) made by this Court differs in form from the order sought in the State’s notice of appeal, there is no difference in substance between the two. More particularly:

1. Whilst the State sought an order that Mr Hollingsworth attend Dr Brown or any other suitably qualified psychiatrist, there is no difference of substance between this and this Court’s order that Mr Hollingsworth is directed to submit to an assessment by a psychiatrist instructed by the State; and

2. Whilst the State sought an order that Mr Hollingsworth not be permitted to make an audio or audio-visual recording of the appointment in the absence of the consent of the psychiatrist, there is no substantive difference between this and this Court’s order that Mr Hollingsworth be directed to submit to the assessment “irrespective of whether that psychiatrist permits him to record the assessment by audio or audio-visual means”.

57. We reject the contention, made by Mr Hollingsworth in reply submissions on this motion, that the form of order in (2) above as sought by the State would “interfere with his rights under the Disability Discrimination Act 2003 (Cth)”; the order as made by this Court does not have that effect. The practical effect of both orders is that, unless the psychiatrist gives permission (or consent), Mr Hollingsworth is not able to record the assessment.

58. To the extent that Mr Hollingsworth raises the possibility that the State may not ultimately be able to proceed with an examination of him, that is not a matter which bears upon the appropriate costs order in respect of the proceedings in this Court. There is nothing before the Court that indicates that the State asked this Court to proceed on a false premise, or indeed that the Court did so proceed. Difficulties that may arise in finding a suitably qualified psychiatrist to examine Mr Hollingsworth are not matters that should influence this Court’s discretion as to the costs of the application for leave to appeal or of the appeal.

59. In his reply submissions on the Second Application Mr Hollingsworth appears to submit that the costs of the proceedings before Levy DCJ and in this Court could have been avoided if the State had offered an examination on the conditions now proposed by Dr Phillips in response to Mr Hollingsworth’s insistence on recording any medico-legal psychiatric examination by the State. There is no evidence to support that submission. It is rejected. There is also no basis for Mr Hollingsworth’s submission that the State is the party responsible for all costs incurred in the proceedings.

60. In these circumstances, orders 1(a) and (b) sought on the motion should be refused.

The application for a certificate under the Suitors Fund Act 1951 (NSW)

61. Order 1(c) seeks an “additional order that the court grant Mr Hollingsworth an indemnity certificate under s 6(1) of the Suitors’ Fund Act 1951 (NSW)”. The respondent does not make any submissions as to this prayer for relief.

62. Section 6(1) of that Act provides that:

(1)    If an appeal against the decision of a court:

(a)   to the Supreme Court on a question of law or fact, …

…

succeeds, the Supreme Court may, on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal.

63. Section 6(2A)(b) provides that the maximum amount payable from the Suitors’ Fund for any one appeal is, relevantly, $10,000.

64. Under s 6(5) the grant or refusal of an indemnity certificate shall, subject to exceptions not presently relevant, be in the discretion of the court. That discretion is to be exercised by reference to the purpose of the Act which was said, in Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, to be to “protect litigants who, for no fault of their own, would otherwise suffer the burden of costs by reason of what are found to be legal errors of subordinate courts”: at 499 (Kirby P and Samuels JA).

65. In R v Hookham (No 2) (1993) 32 NSWLR 345 at 346 Priestley JA (with whom Wood and Sully JJ agreed) (a stated case in criminal jurisdiction) held that:

“The reasoning behind the Act must be to the general effect that the court system, in what has happened prior to the appeal being upheld, has made a mistake and that there will be at least some circumstances in which cost caused by the fault of the system should not be visited on the respondent.

In light of this, it is possible to see how discretion should be exercised in some obvious cases. In a case for example where the respondent had succeeded below only because the court below erroneously took a view of the law or the facts which the respondent had not put to that court, there could be no reason for withholding exercise of discretion in favour of granting the certificate. At the other end of the scale, if counsel persuaded the court below to act upon the basis of a decision which had been overruled, it could be said that it was not the system that had been the main cause of the mistake, but the respondent. Discretion would then be exercised against the respondent.”

66. In Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 doubt was expressed by Samuels JA as to whether a certificate should be given under the Suitors’ Fund Act where an appellant succeeded on a ground which arose only because of the manner in which the respondent’s case was conducted below: at 381.

67. Recently, in Onslow v Cullen (No 2) [2022] NSWSC 1363, Adamson J held that the following principles applied to an application under s 6(1) of the Suitors’ Fund Act:

“5 Whether a certificate ought be granted in the present case is a matter of discretion: s 6(5). In Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491, Kirby P and Samuels JA outlined the applicable principles that guide the interpretation of s 6. Their Honours identified the purpose of the statute as:

“the relief of a party who incurs or becomes liable for costs not through his own decision or conduct but because of some error of law of the court appealed from …”

6   It is necessary to address the grounds of appeal (each of which was made out) and the conduct of the owners’ representatives in the Local Court to determine whether the owners (who are bound by the conduct of their legal representatives) played a role in the errors made by the Court below.”

68. As is apparent from this authority, one factor of relevance to the exercise of discretion under s 6(1) of the Suitors’ Fund Act is the extent to which the party seeking indemnity under the Act contributed to the court at first instance relevantly erring.

69. Mr Hollingsworth submits that an order under s 6(1) should be made in this case as he did not seek the orders made by the primary judge and that the relevant errors leading to the primary judge’s orders were not matters which flowed from Mr Hollingsworth’s contentions before the primary judge. However, in written submissions on behalf of Mr Hollingsworth before the primary judge it was submitted that the Court may direct that any examination ordered under UCPR, r 23.4 be recorded, or find that the request for such recording is not a failure to comply with a notice under UCPR, r 23.2. In these submissions it was also contended that:

“An expert who accepts a retainer to give evidence in a proceeding is expected to comply with the Schedule 7 Code of Conduct including fulfilling an overriding duty to assist the court impartially (cl 2) and to abide by any direction of the court (cl 5c). This may include a direction permitting or requiring the recording of an examination”.

70. In these submissions it was also contended that medical practitioners have a duty under the Disability Discrimination Act, ss 5(1), 6(1), 24 not to discriminate against Mr Hollingsworth as an examinee by reason of his disability. This Court found that in having regard to those matters the primary judge erred.

71. Further, it was contended in the court below that the orders sought by the State, including the order that Mr Hollingsworth be directed to attend an examination without permitting him to record the examination, abrogated Mr Hollingsworth’s “fundamental rights and freedoms in … an extraordinary way”. This Court found, by contrast, that Mr Hollingsworth had no right to make a recording of his examination by a psychiatric expert instructed by the State.

72. Thus, it is apparent that submissions advanced on behalf of Mr Hollingsworth, whilst not seeking an order of the form made by the primary judge, contributed in a material way to the conclusion of the primary judge, in particular the primary judge’s order pursuant to UCPR, Sch 7, cl 5(c) that any expert forensic psychiatrist appointed by the State permit Mr Hollingsworth to make a sound recording of the assessment. As this Court found, the judge relevantly erred in concluding that that provision conferred any power to make such a direction.

73. Further, Mr Hollingsworth, through his legal team, opposed the setting aside of the primary judge’s orders and advanced detailed submissions in support of his Honour’s reasoning.

74. Having regard to the matters set out above, this is not an appropriate case in which to exercise the discretion to make an order under s 6(1) of the Suitors’ Fund Act. The submissions advanced by Mr Hollingsworth to the primary judge played a material role in the errors which this Court identified in his Honour’s analysis. Echoing language used in Director of Public Prosecutions v Bignall [2015] NSWSC 870, Mr Hollingsworth was no “hostage to fortune”: at [13] (Adamson J).

Further orders sought

75. Order 1(d) sought by Mr Hollingsworth asks that this Court make “an additional order” dealing with the costs of Mr Hollingsworth and his chosen medical expert attending an assessment by a psychiatrist instructed by the State, in compliance with Order 4(a) which this Court made on 4 July 2023. In the alternative, Mr Hollingsworth seeks an order from this Court declaring that UCPR, r 23.3 applies to “any notice given by the State pursuant to or giving effect to order 4(a).”

76. Mr Hollingsworth’s application should be rejected. It is not a matter for this Court to seek to resolve case management issues, including as to the costs associated with the implementation of this Court’s orders. That is matter which is quintessentially for the District Court.

77. In any event, as set out by the State in their submissions, the State accepts that it is required to pay the reasonable costs of Mr Hollingsworth and a medical practitioner of his choice attending the appointment with the psychiatrist. The controversy that is disclosed by the correspondence relied upon by Mr Hollingsworth is as to the reasonableness of the costs claimed by Mr Hollingsworth in this regard. That is a further, independent, reason why this Court would not make order 1(d) as sought.

78. By order 1(e) Mr Hollingsworth seeks an additional order remitting or referring questions arising out of the working out of this Court’s Order 4(a), including the power to set aside or vary that order or to relieve Mr Hollingsworth from compliance with it, to the primary judge, or alternatively liberty to apply on seven days’ notice to this Court. These too are matters to be determined by case management directions in the District Court, having regard to ongoing developments in the litigation. It is not for this Court to go beyond the matters raised on appeal and instead to seek to case manage Mr Hollingsworth’s claim against the State which is being litigated in the District Court. Nor is it appropriate for this Court to make an order granting the primary judge power to set aside or vary our orders, or to relieve Mr Hollingsworth from any obligation to comply with our orders.

79. The inappropriateness of this Court engaging in case management of the District Court proceedings is all the more apparent having regard to the nature of the issues that Mr Hollingsworth has identified. Thus, for example, Mr Hollingsworth raises issues as to the date of the proposed examination, the costs of the proposed examination, the extent to which Mr Hollingsworth’s choice of expert can be accommodated and on what terms. The resolution of these issues, if indeed they ultimately require resolution, are not matters with which this Court should now engage after it has delivered judgment and made orders. Contrary to Mr Hollingsworth’s submission, difficulties in complying with the orders of this Court consistently with Mr Hollingsworth’s proposed requirements do not make the controversy agitated on the appeal “hypothetical”. It was readily apparent from the evidence before this Court that there was a real controversy between the parties to be resolved. That there are subsequent difficulties in implementing the orders of this Court does impact that position.

80. As is apparent from the evidence before this Court, it appears that issues as to the conditions for any assessment of Mr Hollingsworth by an expert psychiatrist instructed by the State may have resolved. But in any event, to the extent that difficulties have arisen or do arise, that would be a matter to be resolved in the District Court.

81. Insofar as Mr Hollingsworth submits that this Court’s orders were made on the basis of a misapprehension of fact, that submission should be rejected. As was apparent, the position in this Court was that the State intended to seek out an available psychiatrist to examine Mr Hollingsworth, depending upon what orders this Court made. That is apparent from p 52 of the transcript. The correspondence annexed to Mr Mitchell’s various affidavits, and the affidavits of Mr Merewether and Ms Gracie, make it clear that that is precisely what the State has done. Even if the State were ultimately unable to find a psychiatrist who would accommodate both this Court’s orders and Mr Hollingsworth’s preference as to which medical expert would attend the appointment and what steps that medical expert is permitted to take at, and after, that appointment, it does not follow that this Court proceeded under a misapprehension.

Costs of this motion

82. Mr Hollingsworth should pay the State’s costs of this motion. There is no good reason why costs should not, as in the ordinary course, follow the event. We reject Mr Hollingsworth’s contention that the time that it has taken to resolve issues arising as to the engagement of an expert psychiatrist militates in favour of the State paying Mr Hollingsworth’s costs. Those matters should have been resolved in the District Court, not by seeking to revisit final orders on appeal. Whilst we have allowed the Second Application in part, the submissions and evidence on that application primarily addressed the application as it related to proposed order 1(a1), which we have refused. The other orders sought have also been refused.

83. Accordingly, the Court makes the following orders:

1. Dismiss the respondent’s notice of motion filed on 7 September 2023.

2. Dismiss the respondent’s notice of motion filed on 18 July 2023.

3. Order that the respondent pay the State’s costs of the motions.

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Decision last updated: 28 November 2023