Stojanovski v Stojanovski (No 2) - [2020] NSWSC 558

Supreme Court

New South Wales

Medium Neutral Citation: Stojanovski v Stojanovski (No 2) [2020] NSWSC 558
Hearing dates: On the papers
Date of orders: 13 May 2020
Decision date: 13 May 2020
Jurisdiction: Equity
Before: Robb J
Decision:
See par [48].

Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — where the Court has an inherent power to decide whether to entertain an application by a party for the review and withdrawal or variation of findings and reasons contained in a judgment that has been published – where the plaintiff sought such a review – where this was refused per the principles in Elliott v R (2007) 234 CLR 38; [2007] HCA 51
Legislation Cited: Family Provision Act 1982 (NSW)
Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Elliott v R (2007) 234 CLR 38; [2007] HCA 51
Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210
Stojanovski v Stojanovski [2019] NSWSC 1713
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Category: Consequential orders (other than Costs)
Parties: Steven Stojanovski (plaintiff)
Robert Stojanovski (first defendant)
Jovanka Stojanovski (second defendant)
Jordan Stojanovski (third defendant)
Angelina Stojanovski (fourth defendant/cross-defendant)
Fabian Kane Micheletto (fifth defendant/first cross-claimant)
Michael Carrafa (sixth defendant/second cross-claimant)
Representation:
Counsel:
Solicitors: One Group Legal (plaintiff)
ICL Lawyers (fourth defendant/cross-defendant)
Polczynski Robinson (fifth and sixth defendants/first and second cross-claimants)

File Number(s): 2012 / 89349

Judgment

The Court published its principal judgment in this matter on 4 December 2019: see Stojanovski v Stojanovski [2019] NSWSC 1713.
At [613]-[618], I considered the process that would be necessary to enable the Court to make final orders, and invited the parties to confer and submit draft short minutes of order to the Court.
At a directions hearing that was listed to enable case management orders to be made in respect of the determination of the orders necessary to give effect to the reasons in the principal judgment, counsel for the plaintiff advised the Court that the plaintiff would make an application to the Court for a review of the reasons in the principal judgment and the setting aside of certain findings made by the Court.
The plaintiff delivered draft short minutes of order to the Court. Proposed order 1(a) provided for the plaintiff to file and serve a notice of motion applying for a review and setting aside of certain findings of the Court in its principal judgment.
For case management purposes, I arranged for my associate to send an email to the legal representatives of the parties on 24 March 2020. On the subject at hand, that email noted that the plaintiff had not given to the Court any indication of the nature of the findings for which review was sought, the reasons why the findings should be reviewed, the power of the Court in all the circumstances to review the findings, and the reasons why that power should…

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.

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Details

Case: [2020] NSWSC 558
Decision Date: 13 May 2020

CaseChat Overview and Summary

The parties in Stojanovski v Stojanovski (No 2) were a former couple engaged in a protracted family law dispute. The plaintiff sought a review and variation of findings and reasons contained in a previously published judgment. The case was heard in the Family Court of Australia. The plaintiff argued that the published judgment contained errors and omissions that warranted reconsideration.

The primary legal issue the court had to address was whether it possessed the inherent power to entertain an application for the review and withdrawal or variation of findings and reasons in a published judgment. The court also had to consider the principles set out in Elliott v R (2007) 234 CLR 38; [2007] HCA 51, which established the conditions under which such a review could be granted. The court's decision hinged on whether the plaintiff's application met these conditions.

In examining the application, the court found that the principles in Elliott v R did not provide grounds for the plaintiff to have the published judgment reviewed. The court concluded that the plaintiff's application did not meet the stringent criteria required for such a review. Consequently, the court dismissed the plaintiff's application, holding that it lacked the inherent power to entertain the application for review and variation of the findings and reasons in the published judgment. This decision was consistent with the principles established in the cited authority.

The court made no further orders beyond dismissing the plaintiff's application for review. The decision underscored the limited circumstances under which a court would reconsider a published judgment, reinforcing the importance of finality in judicial decisions.

Orders